Saturday, August 4, 2007

Of Earmarks and Bridges:

This does seem like a pretty obvious and important point to make in the wake of the horrible Minnesota tragedy, doesn't it? (Via Glenn).

In related news, I see that "The Bridge to Nowhere" now has its own Wikipedia entry.


More on that Tenth Circuit adoption decision:

In Finstuen v. Crutcher, the Tenth Circuit held that under the Constutitution’s Full Faith and Credit Clause (FFCC), Oklahoma could not refuse to recognize otherwise valid out-of-state adoptions by same-sex couples. Judge David Ebel (appointed by Reagan) wrote the opinion, joined by Judge Terrence O’Brien (appointed by George W. Bush). Judge Harris Hartz (also appointed by GWB) concurred and dissented in part, and did not reach the constitutional issue.

Oklahoma prohibits unmarried couples, gay or straight, from adopting a child as a couple. (One member of the couple may adopt a child as a single person.) But an Oklahoma statute requires the state to recognize and treat foreign adoptions – those from another country or another state — creating a parent-child relationship as though finalized in an Oklahoma court. All the rights and obligations of parents and children in the state apply the same way to adoptions finalized elsewhere. That’s the rule in all 50 states, in fact. There’s one catch, however, in Oklahoma that I have not seen in other state laws. It’s embodied in a recent amendment to the state statute:

Except that, this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction. Okla. Stat. tit. 10, § 7502-1.4(A)

Thus, on its face, the statute requires the state to recognize foreign adoptions by unmarried opposite-sex couples, even though such a couple could not adopt in Oklahoma itself. But foreign adoptions by unmarried – or married – same-sex couples are not recognized.

The adoption amendment is draconian in its simplicity. It’s not clear, under Oklahoma law, whether the state would recognize either same-sex parent as the legal parent of the child. Thus, same-sex parents traveling through the state could find their legal rights challenged in emergent circumstances. The child could be left “parent-less” in such circumstances, a monstrous result. Similarly, the Oklahoma law could deprive same-sex parents who had adopted out-of-state and then moved to Oklahoma of all legal power to direct their child’s education and medical treatment. I doubt a state child welfare agency, even in Oklahoma, would seize these legally “parent-less” children unless there were some independent reason (e.g., evidence of abuse) to do so, but the law itself provides no answers. Perhaps other equitable and family law doctrines, like de facto parent status, could be invoked to prevent the worst nightmares, but the resulting uncertainty itself could damage the family. From what I’ve read of the debate over the amendment, Oklahoma legislators gave no consideration to these complications.

Oklahoma passed the amendment after a gay couple from the state of Washington successfully petitioned the state department of health to re-issue their child’s birth certificate to reflect the fact that they were now the child’s parents. Re-issuance of birth certificates to reflect the names of the new parents is routinely done in adoption cases. The couple adopted the child in Washington, which permits same-sex adoptions, but the child had been born in Oklahoma. The couple wanted the change made because they planned to travel periodically to Oklahoma to visit the child’s biological mother, who still lived there. They did not want state officials, hospitals, or others questioning their parental rights as they traveled through the state, especially in case of an emergency.

While the Tenth Circuit ultimately held that these men (and an in-state lesbian couple) lacked standing to challenge Oklahoma’s anti-gay adoption amendment because, it said, their fears were “too speculative,” it held that an out-of-state lesbian couple had standing because the law had already concretely harmed them. The health department had refused to issue them a revised birth certificate. Plus, during an actual emergency, they had been told by an ambulance crew and emergency medical staff that only “the mother” could accompany the child. (These disparate results show, I think, how bizarre the standing doctrine can be: standing law, as this panel applies it, requires parents to wait to challenge the law in federal court until they are denied access to their child in an emergency.)

The Tenth Circuit addressed only the FFCC issue, not the Equal Protection and substantive Due Process issues the parents had also raised. The reasoning was fairly straightforward. The FFCC requires states to give full faith and credit “to the public Acts, Records, and judicial Proceedings of every other State.” Art. IV, Sec. 1. The Supreme Court has held that this language applies with full force to the final judgments of sister states. Final adoption orders or decrees are judgments, as Oklahoma conceded, and as such must be recognized under the FFCC.

But what of the “public policy exception” to the recognition of another state’s laws? This is the wrinkle in controversies over the effect of the FFCC that has permitted states to argue, for example, that they do not have to recognize same-sex marriages or civil unions validly performed in foreign jurisdictions if they have clearly expressed a contrary public policy in their own statutes or constitutions. Oklahoma has clearly expressed its public policy judgment that it does not want to validate parenting by gay couples just as surely as it has expressed its view that it will not recognize foreign same-sex marriages for any purpose. The Tenth Circuit noted, in response, that there is no “public policy exception” to the “judgments” of other states. Op. at 28. Oklahoma did not contest this conclusion. Since a marriage is not considered a judgment of another state, the public-policy exception applied to foreign gay marriages stands.

But Oklahoma argued that requiring it to recognize foreign same-sex adoptions would effectively give foreign jurisdictions control over its own public policy in multiple ways beyond mere recognition itself. The parent-child relationship creates many legal rights and obligations under state law, including the power to make decisions about medical care and education, rights of inheritance, the right to seek child custody and support, and the right to bring a wrongful death lawsuit. If required to recognize foreign same-sex adoptions, the state would then be required to grant the parents and their children the full panoply of parent-child rights as they would any other family. This would give the foreign state control over the effect of its judgment in Oklahoma, argued the state.

The Tenth Circuit responded by saying that Oklahoma retains the power to control “the manner in which adoptive relationships should be enforced in Oklahoma and the rights and obligations in Oklahoma flowing from an adoptive relationship.” Op. at 30. The point is that Oklahoma has decided to treat adoptive relationships the same as the relations of natural parents to their children. It cannot, under the FFCC, elect to treat a sub-class of foreign adoptive relationships differently from in-state adoptive relationships.

What the court seems to be suggesting, then, is that Oklahoma could decide to create an alternative inheritance regime that treats adopted children differently than natural children (though such a scheme might founder on other constitutional objections). The same would go for medical care, education, and all of the other rights that parents and their children have. What it cannot do is treat adoptive parents the same as natural parents, except for one class of foreign adoptions.

The chances are higher than usual that the Tenth Circuit will take the case en banc. It involves the invalidation of a state statute on constitutional grounds, in an area of unusual cultural and legal sensitivity. There will also be arguments that the case could be disposed of on standing or mootness grounds, making the constitutional resolution unnecessary, though I think these arguments are pretty weak. Whatever the Tenth Circuit does, I doubt the Supreme Court would hear the substantive constitutional claims. There is no circuit conflict, and Oklahoma’s law is unique, which means conflicts arising from its law will be small in number and scope for some time to come.


More on Rep. Jefferson's Papers:

Lyle Denniston has a thorough discussion of the D.C. Circuit's decision here. How Appealing has a round up of news coverage here.


Does Abstinence Education Do Anything?

A new study in the British Medical Journal confirms prior research indicating that abstinence-only education has no effect, positive or negative, on sexual behavior. As critics have long maintained, this review of available empirical research indicates that abstinence-only education does not prevent teenagers from having sex or reduce the incidence of sexually transmitted diseases. At the same time, and contrary to the claims of some critics, abstinence-only education does not appear to increase the rate of unprotected sexual activity. In other words, whether or not children receive abstinence-only education or more comprehensive sex education appears to make no difference at all.

If the BMJ analysis is correct, it would suggest that the raging political fights over the form and content of sex education in schools are purely ideological, not scientific. Both proponents and opponents of abstinence-only education claim that "science" supports their preferred approach, when the available scientific research suggests there really is not much difference.

Here is some BBC coverage of the study, and here is an informative episode of Justice Talking on abstinence education from several weeks back.

UPDATE/CORRECTION: As some commenters observed, it is an overstatement to say that this research suggests that no form of sex education can affect sexual behavior.


Disorder in the House:

Last night the U.S. House of Representatives unanimously agreed to the formation of a special committee to investigate alleged parliamentary shenanigans that may have altered the outcome of a vote, the Washington Post reports.

The move capped a remarkable day that started with Republicans marching out of the House in protest near midnight Thursday, was punctuated by partisan bickering, and ended with Democratic hopes for a final legislative rush fading. Even a temporary blackout of the House chamber's vote tally board led to suspicions and accusations of skullduggery.

While Democratic leaders hoped to leave for their August recess on a wave of legislative successes, the House instead slowed to an acrimonious crawl that threatened to stretch the legislative session into next week.

The agreement to form a special committee was extraordinary. Such powerful investigative committees are usually reserved for issues such as the Watergate scandal and the funneling of profits from Iranian arms sales to the Nicaraguan contras in the 1980s.

"I don't know when something like this has happened before," said House deputy historian Fred W. Beuttler. He called the decision "incredible."

House Majority Leader Steny H. Hoyer (D-Md.) accepted GOP calls for an investigation. "I do not believe there was any wrongdoing by any member of the House. I do believe a mistake was made," he said. "And I regret it. has lots more here and here. Republicans are also distributing video that, they claim, supports allegations that the vote was "stolen."

Of course, when Republicans controlled the House, there were shenanigans as well. Most infamously, a vote was kept open so Tom Delay would twist arms to ensure a victory. As with earmarks, it seems the new boss is much like the old boss.

UPDATE: Congressional Quarterly has a particularly thorough account of the vote:

The floor confusion arose when, with the tally tied at 214-214, two politically vulnerable Democrats, Nick Lampson of Texas and Harry E. Mitchell of Arizona, went to the well of the chamber to switch their votes to “no.” The buddy system would prevent Democrats who voted “no” from being targeted as the deciding vote in future campaign ads. Moments later, three Cuban-American Republicans from south Florida, Ileana Ros-Lehtinen, Lincoln Diaz-Balart and Mario Diaz-Balart, moved to change their votes to “aye.”

The five vote switches were called out by the House reading clerk. The two Democratic changes put the tally at 212-216. Ros-Lehtinen’s switch made it 213-215. Lincoln Diaz-Balart evened it at 214-214, but a tie vote fails. As the reading clerk called out Mario Diaz-Balart’s new vote, the Speaker Pro Tempore, Rep. Michael R. McNulty, D-N.Y., banged the gavel, apparently unaware that the second Diaz-Balart’s vote had yet to be counted.

McNulty had his eyes on the electronic scoreboard, which still read 214-214. But almost as soon as the gavel came down, the scoreboard registered Mario Diaz-Balart’s vote, pushing the tally to 215-213. The scoreboard showed those numbers and the word “FINAL.”

Within a minute or so, a flurry of post-gavel vote switches by Reps. Zack Space of Ohio, Kirsten Gillibrand of New York and Jerry McNerney of California — resulted in an official outcome of 212-216. Boehner was observed switching his vote — a common way to preserve the right to seek reconsideration, and an aide confirmed that the tally board at that point should have read 211-217.

“Shame! Shame!” Republicans chanted across the aisle. Rep. Patrick T. McHenry, R-N.C., thumped the seat of a chair in rhythm with the chant. Rep. Steven C. LaTourette, R-Ohio, repeatedly covered his mouth with his hand, pretended to cough and bellowed a barnyard epithet.

McNulty, whom Democrats often tap to preside over contentious debates, could be heard on television insisting “I called it 214-214.”

Related Posts (on one page):

  1. Congressional Shenanigans:
  2. Disorder in the House:

Dean Dan Polsby Receives St. Gabriel Possenti Society's Medallion of Honor:

Congratulations to George Mason Law School Dean Dan Polsby, who this week was named the recipient of the St. Gabriel Possenti Society's Medallion of Honor as well as the "Noble of the Week" by the Washington Times:

Noble: Daniel Polsby, the gun owner's intellectual and recipient of the St. Gabriel Possenti Society's Medallion of Honor.

The St. Gabriel Possenti Society is a gun-rights advocacy group named for a heroic Catholic seminarian who single-handedly rescued the town of Isola, Italy, from predatory bandit-soldiers in 1860. St. Gabriel's sharp-shooting forced the intruders to drop their weapons and flee. The society promotes St. Gabriel as the Patron Saint of Handgunners.

When announcing the award, Society Chairman John Snyder said of Mr. Polsby: "[He] is the leading academic champion of the individual civil right of law-abiding American citizens to keep and bear arms in the United States today." Mr. Polsby, dean of the George Mason Unversity School of Law, has written some of the most influential articles in support of gun rights. He recently helped lobby to overturn the D.C. gun-ban statute, calling it unconstitutional.

For supporting the Second Amendment and the right to bear arms, Daniel Polsby is the Noble of the Week.


Friday, August 3, 2007

Oklahoma must recognize out-of-state adoptions by same-sex parents:

Tonight the Tenth Circuit, in Finstuen v. Crutcher, held unconstitutional under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state. States usually recognize adoptions from foreign jurisdictions, but Oklahoma carved out an exception for adoptions by same-sex couples. Said the court:

We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause. Therefore, Oklahoma’s adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples. Because we affirm the district court on this basis, we do not reach the issues of whether the adoption amendment infringes on the Due Process or Equal Protection Clauses.

On the Full Faith & Credit issue, the decision was 2-1; the dissenting judge felt it was not necessary to reach that question. On first glance the opinion appears quite narrow and doesn't affect the state's ability to refuse to recognize same-sex marriages, but I haven't had time to read it carefully. I may have more to say about it tomorrow.

Related Posts (on one page):

  1. Recognizing Out-of-State Adoptions:
  2. More on that Tenth Circuit adoption decision:
  3. Oklahoma must recognize out-of-state adoptions by same-sex parents:

Names for Inhabitants:

A reader passes along this puzzle:

Find cases where the name of inhabitants of a city, region, or country in English has nothing to do etymologically with the name of that geographic entity in English. The most prominent example of this would be Rio de Janeiro and "Carioca." Interestingly, the inhabitants of the state of Rio de Janeiro are called "fluminense." Besides these examples, I only know one other major South American city with a similar name pair.

Clearly, something like "Liverpudlian" won’t qualify. It turns out those Liverpudlians have a nickname "Scousers" but I am really after the primary name (there is no "Rio-de-Janeirenhos" -– you have to use Carioca). In any event, the list that immediately comes to mind is pretty limited, but I am sure there are plenty of those around. I expect for instance that it is common in Brazil, so some Brazilian may pitch in. In any case, I don't think the definition should be very restrictive, because that way we could learn about interesting cases.

Any thoughts? I can think of one example -- involving the name for the inhabitants of a country -- that should be pretty obvious, but I can't think of others.


Slippery Slopes in 10 Pages:

Ward Farnsworth's The Legal Analyst includes a chapter on slippery slopes that's generally based on my Mechanisms of the Slippery Slope article.

As is usually the case with Ward's work, it's extremely well written, and I can't imagine a better 10 pages on the subject. If you don't want to read my whole law review article (and who really wants to read whole law review articles?), read Ward's 10 pages instead -- many thanks to Ward and his publisher for letting me put the chapter on my site -- or, better yet, read his whole book.


S&P 500 has Second Worst Day Since Early 2003.--

According to final figures on Friday, the S&P 500 ended down 2.66%, edging out last Thursday's 2.64% drop for the second worst day in the S&P 500 since early 2003. The NASDAQ was down 2.51%; the Dow was down "only" 2.09%.

That means that for the year the S&P 500 is up only 1%, while the NASDAQ is up 4%, and the Dow is up 5.7%.

Looking back, the pattern of big down days over the last two weeks happens more often near market bottoms than market tops. In the past, when such a pattern has occurred after big runups in the market, sometimes it signals a temporary top (1987). Sometimes it signals a buying opportunity in an up market (1998).

Some commentators on TV have pushed for Fed Chair Bernanke to take a page from Greenspan's response to a similar mini-crisis in 1998, meeting with experts to assess the problems and assuring the markets that liquidity would be available if needed. As it now stands, the Fed still has an official slight bias toward fighting inflation by leaning toward tightening, though in action it is neutral. Most expect the Fed at least to go neutral officially next week, perhaps to a stated bias toward easing, though to do essentially nothing significant about interest rates in response to the spreading credit crunch.


What I tell you three times is true:

I recall hearing an expression something along the lines of "Once you say something three times in Washington, it's true." Has anyone ever heard that, and do you know where it (or something like it) comes from?


FISA Legislation Update: Marty Lederman has the latest here.

Surprisingly Good Food--Wyman's Canned Bluberries:

These are available at Whole Foods and maybe elsewhere. They are canned in watr, not syrup. I love berries, and usually dislike canned fruit of any kind. But chill these puppies, and they taste better than fresh (they are also a different variety than you get fresh). They also come frozen, but I haven't tried those.


CNBC's Jim Cramer Goes Ballistic: "WE HAVE ARMAGEDDON!"

On CNBC at 2:46pm ET, Jim Cramer is screaming about the Fed right now: "WE HAVE ARMAGEDDON!"

UPDATE (2:56pm): While I was writing a very long post suggesting in a quiet and indirect way that I can't understand why the Fed is not providing credit to the market, Jim Cramer on CNBC's "Stop Trading" segment started screaming with a passion that I've never seen even from him. He screamed over and over that the Fed has "NO IDEA" what's going on, and added that its behavior is "SHAMEFUL."

Cramer said that the Fed should "open the window" and cut rates "TODAY"!

Just because the Fed didn't engineer this credit crunch, as Fed Chairs Volcker and Greenspan did in 1987, doeesn't mean that the Fed shouldn't provide the liquidity needed to ease the pressure on defaulting homeowners and on financial institutions that are getting killed from the drying up of corporate credit.

BTW, when Cramer started his tirade against the Fed the Dow was down about 100 points, which was less than 1%.


Restraining Order Issued Against Pedophile Blogger:

A court has just issued a restraining order — with no appearance by the defendant — that, among other things,

(1) bars McClellan from "follow[ing], ... keep[ing] under surveillance, or loiter[ing] with or around any minor child,"

(2) bars McClellan from contacting, "photograph[ing], videotap[ing], post[ing] on internet, or otherwise record[ing] any image of a minor child without parent's or guardian's written consent,"

(3) bars McClellan from "loiter[ing] where minor children congregate in, including but not limited to schools, parks, playgrounds, bowling alleys," and

(4) requires McClellan to "stay at least ... 10 yards away from" "any minor child."

The court reports that the order is "based on stalking" and "based on a credible threat of violence and harm to minor children." The order is ambiguous on whether McClellan is also barred from having guns — those provisions on the order form are crossed out in one place but not in another; I take it the court's intent was not to apply them at all.

I don't know what evidence was introduced at the hearing, so it's possible that there was some evidence that McClellan had actually molested children, or was planning to do so. If there was, and the evidence was sufficiently strong, then a temporary order of some sort would be constitutional — a person can, after all, be arrested and jailed just on a finding of probable cause to believe he has committed a crime.

But if the only evidence is what we've seen in the press, which is chiefly that McClellan admits to a sexual attraction to children, believes that sex with children is proper, claims not to have molested children or engaged in sexual touching with them but has apparently said he had "hugged" them, and has in the past photographed children and posted their photos on the Internet with text praising their appeal and promoting the propriety of sex with children, then it seems to me that the order is unconstitutional.

You can't restrict people's movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints on where you can go on in public (and broader freedom, including the freedom to photograph and to post photographs) can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime. The police can't arrest people just because they think they might be dangerous, or because they have expressed support for criminal activity; the courts can't restrict their liberty of movement on those grounds. The controversy about no-fly lists that are based on mere suspicion illustrates this concern, and the outer boundaries of even national security powers; but even the no-fly lists don't go so far as to make it a crime for someone to go to certain places, or be within 10 yards of any child.

Without doubt this general prohibition on prophylactic police and court action poses some dangers. I suspect there are lots of people out there whom the local police understandably suspect of some crime, and who may in fact victimize someone before a crime can be proven. But it seems to me that on balance waiting until there's concrete evidence that a crime has been committed, or is at least being planned — dangerous as such waiting may be — is less dangerous than letting courts restrain movement simply based on people's even repugnant ideologies and desires.

Related Posts (on one page):

  1. Restraining Order Issued Against Pedophile Blogger:
  2. More on the Pedophile Blogger:
  3. The Pedophile Blogger:

So, When the Buckled Girder Lets Down the Grinding Span:

The Minneapolis bridge disaster reminded me of one of my favorite poems, Kipling's Hymn of the Breaking Strain. (It's of course ultimately not really about bridges, which is why I only said "reminded me.") Here is the opening stanza:

The careful text-books measure
(Let all who build beware)
The load, the shock, the pressure
Material can bear.
So, when the buckled girder
Lets down the grinding span,
The blame of loss, or murder,
Is laid upon the man.
Not on the Stuff -- the Man.


Credit Crunch Continues.

The Wall Street Journal is today reporting that Wells Fargo, a major mortgage lender, is raising the interest it charges on prime jumbo home mortgages by a whopping 1.125%.

The Cerberus deal to buy Chrysler went through today, but they were unable to sell the corporate debt to fund the deal at prices that they were willing to pay (so the bank bridge loans, intended to be temporary, continue in force). It was this news of problems in the financing for the Cerberus deal that triggered last Thursday’s sell-off in the US stock market, the second largest down day in the last 4 years in a week that was the worst for the stock market in at least 4 years.

Standard & Poor’s today lowered its outlook on brokerage Bear Stearns to negative:

Bear Stearns Cos., the manager of two hedge funds that collapsed last month, had its credit-rating outlook cut to negative by Standard & Poor's on concern declining prices for mortgage-backed securities will reduce earnings. . . .

The failure of the Bear Stearns funds, which invested in mortgage-related bonds, triggered a flight from the riskiest debt that spurred some lenders to balk at financing leverage buyouts and dried up credit lines for some U.S. mortgage providers. Shares of Bear Stearns, the second-largest underwriter of mortgage-backed bonds, have lost more than [40] percent this year.

Among the problems for Bear Stearns are lawsuits alleging that the brokerage misled investors to induce them to stay in the hedge funds when problems first became public.

CNBC reporters have been discussing the difficulty of finding money for new deals, though most deals previously in the works are still going through.

In a flight to quality, investors in the last two weeks are buying Treasury notes, which has led to those interest rates moving sharply lower. Usually, this leads to lower mortgage interest rates, but mortgage interest rates are going higher because of the difficulty of repackaging those loans and selling them as mortgage-backed securities. This would tend to lengthen the current slump in the housing market, which most analysts are now saying should probably last at least through 2008.

On Wells Fargo’s huge jump in interest rates on jumbo home mortgages, the Wall Street Journal reports:

Lenders broaden clampdown on risky mortgages
Tightening standards could worsen slump in the housing market.

Jittery home-mortgage lenders are cutting off credit or raising interest rates for a growing portion of Americans, extending well beyond the market for subprime loans for people with the weakest credit records.

This worsening credit crunch threatens to put further pressure on the housing market, where prices are flat to declining in much of the country.

Lenders say they are being forced to raise interest rates and stop offering certain loans because mortgage-bond investors have lost their appetite for a broad range of mortgages considered risky. That includes those dubbed Alt-A, a category between prime and subprime that often involves borrowers who don't fully document their income or assets, or those buying investment properties. Notably, American Home Mortgage Investment Corp., which stopped making loans earlier this week, said late yesterday it would cease most operations, slashing its work force to about 750 from more than 7,000.

"It is with great sadness that American Home has had to take this action," Chief Executive Michael Strauss said in a statement. "Unfortunately, the market conditions in both the secondary mortgage market as well as the national real estate market have deteriorated to the point that we have no realistic alternative."

Lenders are tightening standards and "raising rates like crazy," said Melissa Cohn, chief executive of Manhattan Mortgage, a New York mortgage broker. She said Wells Fargo & Co. is charging 8% for a prime jumbo 30-year fixed-rate loan that carried a 6 7/8% rate late last week. (Jumbo loans are those too large to be sold to government-sponsored mortgage investors Fannie Mae and Freddie Mac.) A Wells spokesman said rates are lower on loans made directly by the bank than on those through brokers.

The market for mortgage-backed securities is "very panicked," Michael Perry, chief executive of IndyMac Bancorp Inc., another big lender, said in a message on the lender's Web site yesterday. . . .

Alt-A loans accounted for about 13% of U.S. home loans granted last year, according to Inside Mortgage Finance, and subprime loans about 20%. Industry executives have said subprime lending is likely to shrink by more than 50% this year, and now much of the Alt-A market is vanishing too.

This credit squeeze "will further crimp the effective demand for housing, and will make the late summer home-sales season even worse than the dismal spring season," said Thomas Lawler, a housing economist in Vienna, Va. . . .

Several dozen lenders have gone out of business in the past six months, and others are teetering. Shares of Accredited Home Lenders Holding Co. fell 35% yesterday on the Nasdaq Stock Market after auditors said its "financial and operational viability" is uncertain if a pending merger isn't completed.

I’ll have more thoughts on Federal Reserve policy in a later post.


Careful Criticizing the Coach:

Four varsity football players were dismissed from the Jefferson County (Tennessee) high school football team after organizing a petition against their coach. The students sued, alleging the punishment violated their First Amendment rights. The District Court denied the defendants' motion for summary judgment on the grounds of qualified immunity. Today, the U.S. Court of Appeals for the Sixth Circuit reversed the district court.

Of interest, the majority opinion, written by district court judge Zatkoff, sitting by designation and joined by Judge Siler, uses a scene from the movie Hoosiers to analyze the First Amendment question, even though the movie takes place before the Supreme Court's controlling decision in Tinker v. Des Moines Independent Community School District.

Assuming that Tinker was in force at the time of Hoosiers, would the players have a First Amendment claim against Coach Dale? That hypothetical case is not before the Court, but the instant case, although it contains different facts, presents a similar question: what is the proper balance between a student athlete’s First Amendment rights and a coach’s need to maintain order and discipline?
Applying Tinker, and recognizing that "students do not have a general constitutional right to participate in extracurricular athletics" and that "student athletes are subject to more restrictions than the student body at large," the majority concluded that the defendants were entitled to qualified immunity because their conduct in dismissing the players did not violate the First Amendment.
It was reasonable for Defendants to forecast that Plaintiffs’ petition would undermine [the coach's] authority and sow disunity on the football team. Thus, there was no constitutional violation in Plaintiffs’ dismissal from the team. Tinker does not require teachers to surrender control of the classroom to students, and it does not require coaches to surrender control of the team to players.
Judge Gilman wrote a separate opinion, concurring in the judgment, as he believed there was a constitutional violation, but that the defendants were nonetheless entitled to qualified immunity.
Contrary to the analysis in the lead opinion, I believe that the writing in question constitutes protected speech under Tinker and that the defendants have failed to carry their burden of “demonstrat[ing] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”). The student-athletes in the present case, in my opinion, have thus properly asserted a constitutional violation.

But what I find most troubling about the lead opinion’s analysis is that it significantly alters First Amendment jurisprudence by grafting the public-concern requirement of Connick v. Myers, 461 U.S. 138 (1983), onto the Tinker test, an approach never before taken in student-speech cases by either the Supreme Court or any other federal court of appeals to consider the issue. Moreover, the Supreme Court recently had an opportunity to overrule or otherwise alter Tinker, but explicitly declined to do so in a way that would affect the outcome of the present case. See Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007) (holding that “a [high school] principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use”). I nonetheless concur in the judgment because I believe that the First Amendment right as applied to the particular circumstances in this case was not so clearly established at the time of the alleged violation as to deprive the defendants of qualified immunity.


Honoring Dartmouth's 1891 Agreement:

As many readers know, Dartmouth is unique in that since 1891 it has permitted alumni to elect half of the non-ex officio members of the Board of Trustees as Alumni Trustees. The other half are appointed by the Board as Charter Trustees. Two seats are designated as ex officio seats in the College Charter, one for the president of the College and one for New Hampshire's Governor. Today there are 18 members on the Board--8 Alumni Trustees, 8 Charter Trustees, and the 2 ex officio members.

This right of the alumni to elect half the Board was the result of a bargain struck between alumni and the College in 1891 and memorialized in a set of resolutions adopted by the Board that traditionally have been referred to as the 1891 Agreement. This tradition of parity has been honored for 116 years--nearly half of Dartmouth's existence. In recent communications to alumni, however, Chairman of the Board Ed Haldeman questioned the validity of this longstanding agreement.

I respond to Chairman Haldeman's arguments in an editorial column published in today's edition of The Dartmouth. The published text of the column is available here.

Read the 1891 Agreement for yourself here.

D.C. Circuit Rules for Rep. Jefferson:

This morning a three judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Rep. William Jefferson's challenge to the FBI's seizure of material from his office. The opinion for the Court, written by Judge Rogers and joined by Judge Ginsburg summarizes:

This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for nonlegislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Article I, Section 6, Clause 1 of the United States Constitution. Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials. . . . Given the Department of Justice’s voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressman’s motion for emergency relief pending appeal, the imaging and keyword search of the Congressman’s computer hard drives and electronic media exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman’s paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive’s Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.

We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment against him while this appeal was pending.

Judge Henderson filed a separate opinion concurring in the judgment, which begins:

When all of the brush is cleared away, this case presents a simple question: can Executive Branch personnel—here, special agents of the Federal Bureau of Investigation—execute a search warrant directed to the congressional office of a Member of the Congress (Member) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution? The limited United States Supreme Court precedent regarding the applicability of the Clause in the criminal context makes one thing clear—the Clause “does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true.” Gravel v. United States, 408 U.S. 606, 626 (1972) (emphasis added). It appears that neither the Supreme Court nor any inferior court has addressed the question as I view it and the single holding from our court on which the majority almost exclusively relies to answer the question in the negative decides only the Clause’s applicability to a civil subpoena obtained by private parties who sought certain files in the possession of a congressional subcommittee. . . . I believe the question can be directly answered “yes” without resort to dicta or any other indirect support or theory. Accordingly, while I concur in the judgment which affirms the district court’s denial of Representative William J. Jefferson’s (Rep. Jefferson) Rule 41(g) motion, I do not agree with the majority’s reasoning and distance myself from much of its dicta.

I hope to have more on this decision later today.

Related Posts (on one page):

  1. House Probe of Jefferson Suspended:
  2. More on Rep. Jefferson's Papers:
  3. D.C. Circuit Rules for Rep. Jefferson:

[Ward Farnsworth (guest-blogging), August 3, 2007 at 10:44am] Trackbacks

You have job interviews with two employers and are turned down in both of them. At the next one you are asked if you have had any prior interviews. You recount your unhappy recent history and the employer concludes that the two prior rejections probably meant something. This helps him decide to pass on you. The process continues and accelerates from there; the next interviewer finds you have three rejections and has even more cause for concern than the previous one.

This is an example of an information cascade. Notice that all the interviewers might be acting rationally. If you feel uncertain about something, it might make sense to defer to others who have already decided; maybe they knew more than you do. And if the next player likewise has no firm basis for decision it might be entirely reasonable for him to see the growing agreement, find it impressive, and go along. But whether reasonable or not, the result is that the belief gains a kind of empty momentum: there is growth in its acceptance but not in its likelihood of being true, which hasn’t changed and may be small.

There are a number of implications for law. One involves the hazards of sequential decisionmaking. When witnesses are asked what they saw, they say different things alone than if they first hear how others describe the events; there are various ways to interpret this, one of which is that it’s a kind of cascade. That is why the federal guidelines say that witnesses to crimes should be separated and shouldn’t talk to each other.

A similar problem arises when jurors vote on a case. Should they vote simultaneously or sequentially? A simultaneous vote has the advantage of avoiding cascades: we don’t want the third juror swayed by what the first two say, then the fourth juror swayed by what the first three say, and so on. So the choice of procedure might matter; oddly, though, we leave it up to each jury to decide what to do. The same general question arises again when judges vote. On the United States Supreme Court the Justices vote openly and one at a time, starting with the Chief Justice and then descending to the most junior member, who already knows how all the other Justices voted when his turn arrives -- suggesting a danger of cascades.

The risk of cascades repeats on a larger scale in elections. Think about cascades created by early primaries, for example, or by public opinion polls (which is why some countries ban them in the days or weeks before an election). Might a cascade also arise when courts in different jurisdictions are presented with the same question, one after the other? There are other interesting kinds of cascades, too, but this entry is getting long; so if you’d like to read about them (or more about the kind just described), they are the subject of one of the sample chapters available at the web site.

This post wraps up my guest-blogging for the week. I hope these discussions have piqued the interest of some of you in The Legal Analyst. The sample chapter just mentioned, and the others at the web site, should give you a clearer idea of whether the book is for you (they go into more detail than I’ve had space to do here); and there will soon be a fourth sample chapter available at Eugene’s own site — the chapter on slippery slopes, which, as I mentioned before, I co-wrote with Eugene but is really just a short adaptation of his classic article on the subject. Thanks so much to Eugene and the other writers at his site for having me here, and to the many readers who have sent me suggestions or posted them to the comment threads.


Surprisingly Good Food--McDonald's Iced Coffee:

Okay, I'm not sure this qualifies as a "food," but this is really excellent iced coffee, and at an unbeatable price. And I don't even like coffee much!


"But Your Honor, the Spam Filter Ate Your Message":

That excuse doesn't fly, says Pace v. United Servs. Automobile Ass'n, 2007 WL 2022059 (D. Colo. July 9).

The plaintiff's lawyers didn't show up to a settlement conference, because the spam filter caught the court's e-mail setting the conference date. The magistrate judge ordered the lawyers "to pay to defendant's reasonable and necessary attorney fees and expenses it incurred as a result of attending the scheduled settlement conference ... and for attending and participating in the hearings before this court [about the demand for fees]." The judge's reasoning:

[I]t would have been a very simple task to whitelist the United States District Court for the District of Colorado's domain name of "" to insure that such e-mails with this domain name would always be received.

Failure to perform this task makes the lawyers' failure to appear negligent and thus unjustified and sanctionable.


Surprisingly Good Food, First of a Series:

Costco pizza. As a native New York pizza snob, I wouldn't call this "good pizza," but it is better than the vast majority of pizza available in the D.C. area. (Vapiano's, a European chain that just opened an outlet in Ballston, has the best pizza I've had in the area).


Thursday, August 2, 2007

"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":

A commenter responding to my hypo in which a judge denied a parent custody because the parent's teaching of traditionalist Christianity was against the child's best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority.

But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent's Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." ...

Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her ... religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's ... decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." ...

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person ... with responsibility for decision-making" within the meaning of § 14-10-130(1)....

[W]e cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary....

So the restriction was lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

What do you folks think?

1. Should a judge be free to order a parent to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?

2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"?

I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child's respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child's respect for the other parent)?

(For my answer to these questions, see PDF pages 86-88 of my article.)


[Ward Farnsworth (guest-blogging), August 2, 2007 at 7:26pm] Trackbacks
Puzzles About Proof.

I have a taste for conundrums and paradoxes, and The Legal Analyst discusses lots of them. Here are a couple of fun examples involving problems of proof:

1. The conjunction paradox. The standard of proof in a civil lawsuit — a case arising from a car crash, for example — is the preponderance of the evidence: the plaintiff has to prove his case by a “more likely than not” standard. So imagine a case where there are three contested issues. Maybe it’s an accident case where the plaintiff has to prove (a) that the defendant was negligent, (b) that the negligence was the cause of the accident, and (c) that he has a good, truthful excuse for the fact that the claim appeared to be late under the statute of limitations. The jurors decide that they are around 60% sure that the plaintiff is right about the negligence claim, around 60% sure that he is right about causation, and around 60% sure that he is truthful in his story about the statute of limitations.

Should the plaintiff win this case? (Don’t be too sure of yourself!) Would the plaintiff win this case? In other words, how do you think the jury should and would be instructed to act if it reached these conclusions?

[UPDATE. The plaintiff will probably win, because jurors generally are told to find for the plaintiff so long as they think each element of the case is proven by a preponderance of the evidence. Yet the chance that all of the elements of the plaintiff's case are true is around 22%, which seems to flunk the preponderance standard, creating not only a paradox but some potentially serious problems of policy.

There are various replies to this — that sometimes these probabilities may not be independent, or that sometimes the jury may be choosing between only two possible stories, or that we can draw additional confidence from the fact that (say) six jurors, and not just one, all reached the same conclusions. But many students of the paradox nevertheless conclude that defendants are often held liable when they shouldn't be. See, e.g., Ronald J. Allen and Sarah A. Jehl, Burdens of Persuasion in Civil Cases: Algorithms v. Explanations, 2003 Mich. St. L. Rev. 893. These ideas are discussed more in the book.]

2. Proving the law. Suppose you offer to trade a gun to a drug dealer for a couple of ounces of cocaine. The seller accepts, then announces that he is an undercover FBI agent and leads you off to jail. You are prosecuted under a statute that gives many years of prison to anyone who “uses" a firearm in relation to a drug trafficking offense.

You have two lines of defense. You plan to deny that you ever really offered the gun to the undercover agent; to overcome this denial, the government will have to prove its case beyond a reasonable doubt. So far, so good. But you also have another argument: that the prosecution has misread the statute. You don't “use” a gun if you try to barter it; you only "use" a gun (you plan to argue) by putting it to work as a weapon.

There are lively arguments to make either way on this issue (and I’m not really looking for them here). Assume that the judge thinks it’s close but decides that the statute does cover your case. Well, but wait — how sure must the judge be? Is it necessary that he be convinced beyond a reasonable doubt? If not, why not? (I consider the second question — why — the more difficult and interesting part.)

[UPDATE. The puzzle is that we require a very high level of certainty when it comes to facts in criminal cases, but not when it comes to law; we are willing to award long prison sentences, or for that matter death sentences, on the basis of interpretative decisions that everyone knows may be quite doubtful. Indeed, judges do not generally confess to using any standard of proof or confidence at all when they interpret the law, with the partial, occasional, and unreliable exception of the rule of lenity (the use of which I discuss here).

The best explanation of this state of affairs, perhaps, is that if we required any particular level of confidence before a judge could state the law, there might be many situations where there ends up being no law because there is no interpretation that satisfies the standard of proof. This could have some rather untoward consequences. These ideas, again, are discussed in the book; the most interesting longer treatments, I think, are Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859 (1992); Larry Alexander, Proving the Law: Not Proven, 86 Nw. U. L. Rev. 905 (1992).]


Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children:

Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different. I think this is wrong, as I argued at length in my NYU article; but I thought I'd excerpt some of my arguments here, in a somewhat abridged form.

1. Surrender of Parental Rights: Some argue that parents in split families lose some of their constitutional rights: “In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity.”

Each parent's right to live with a child, and to control the child's upbringing, must indeed yield in some measure when the parents split up. The child can't physically be in two separate households at once; and if the parents are hostile enough to each other, they can't make joint decisions about the child's life.

But it doesn't follow that parents' First Amendment rights must likewise yield. Parents' individual rights to speak to their children (and to practice their religions by speaking to them) can still be fully exercised after the parents break up. The parent may no longer be able to rely on the sanctity of the family as a unit, but he may rely on the sanctity of his own constitutional rights. The government must intervene to some extent when a family breaks up, but there's no inherent reason that it must intervene in the parents' speech.

Nor has the parent's conduct somehow waived the right. First, child custody speech restrictions may be imposed on a parent even when the family's unity was abrogated by the other parent: The law here doesn't distinguish the leaving parent from the one who gets left.

Second, even when a parent seeks the divorce, it hardly follows that the government may require the parent to waive his constitutional rights as a condition of getting that divorce. That's true for First Amendment rights generally (or for that matter Fourth Amendment or other rights); it's presumptively equally true for First Amendment rights to speak to one's children.

2. Best Interests Above All: Child custody speech restrictions also can't be justified simply by arguing that protecting a child's best interests is so important that it trumps any First Amendment rights.

Parent-child speech is protected in intact families even when it may undermine the child's best interests. And this is so even though parental teaching of bad ideologies in intact families can sometimes be more harmful than the same speech in split families: If the parents are divorced, one parent might counteract whatever harmful ideology the other parent is teaching, or at least each parent's authority might be decreased because the parent has less time with the child. But if the parents are still together, they're more likely to teach the child the same message; the child will be even more within their ideological control; and the child's best interests would be even more hurt by the bad teachings.

Thus, proponents of child custody speech restrictions must say something more: They need to explain why the same interest that is inadequate to restrict speech in intact families becomes adequate when the family is split.

3. Need to Decide Accurately: One possible “something more” is that in split families, the judge has been called in, and some custody decision must be made. The court should therefore make the most accurate decision it can, the argument would go, by considering all the relevant evidence, including the parent's likely future speech.


To Those Who Defend Family Court Decisions That Discriminate Based on Parents' Religion:

I've seen quite a few defenses of the anti-pagan-parent decision along the lines that the best interests of the child should trump constitutional considerations, that parents should be free to believe what they will but shouldn't be free to expose their children to it, and the like. I discuss this in considerable detail in my article, especially Part II.B, PDF pages 53-81. But for now, let me ask you what you'd think of this hypothetical decision:

One factor we count in favor of awarding custody to the father is that mother is a devout Christian, who takes the view that sex before marriage is immoral, that homosexuality is immoral, and that people who don't accept her so-called Savior are going to end up eternally damned. Moreover, mother not only practices this in private, but expresses her views in ways that the child will surely learn about, for instance by going to Christian churches in public places, and discussing her religion online where she has two to four websites of so-called "blogs." And we have reason to think that as the child gets older, mother will actually try to teach these views to the child.

In our view, such teachings are distinctly against the child's best interests. We believe that they may cause unnecessary psychological suffering during adolescence, especially if the child finds himself sexually interested in the same sex. The fear of eternal damnation -- both for the child and for the child's love ones -- strikes us as especially likely to cause needless suffering, especially since it seems to be entirely lacking in any factual evidence.

Finally, we would be remiss in ignoring that the mother's views are decidedly out of step with the views of the diverse yet oddly ideologically homogeneous City and County in which we live. If the child adopts such views, the child may find himself having a hard time interacting in productive and nondiscriminatory ways with his neighbors, whether they are gay/lesbian/bisexual/transgender, heterosexual but engaged in premarital sex, non-Christian, or just simply tolerant and open-minded. It is therefore clear to us that it is, all things being equal (or even nearly equal), far better for the child to be raised by the agnostic father than by the Christian mother.

A few possible answers:

1. This decision, as well as a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents, would violate the First Amendment, because (at least absent some evidence that the teaching are likely to lead to serious and imminent harm) a court ought not consider a parent's ideology.

2. This decision is perfectly constitutional, since the best interests of the child trump any constitutional considerations. "The issue wasn't so much that Mom was [Christian], but that she blogged about it. She has a right to her own [attitudes about sex], but the kid has some right to be free of them. There's at least an inference here that the blogging and open talk of [hostility towards certain kind of] sexuality were creeping over into the parenting sphere of this child's life."

3. This decision is mistaken, but only because the court errs in its "best interests" judgment. If it really was against the child's best interests to be raised to believe that premarital sex and homosexuality is wrong, and that non-Christians will go to hell, the decision would be entirely proper. A judge who believes that being raised Christian (or this kind of Christian) is against the child's best interests should rule exactly the way this hypothetical judge did. Likewise, an appellate judge who agrees (or who thinks this finding isn't clearly erroneous) should affirm the ruling. I just think that judges should take a different view of the facts, and rule the other way because of that.

4. This decision is unconstitutional, but a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents would be constitutional, because [please explain why].


Mother's Open Paganism Treated as Reason to Deny Her Custody:

From the trial court's judgment giving the father custody (a decision upheld on appeal), Dexter v. Dexter, no. 2005 DR 0110 (Ct. Com. Pl. Portage County, Ohio May 1, 2006), aff'd, 2007 WL 1532084 (Ohio App. May 25):

[Mother] has undertaken to engage in a lifestyle that is extreme by normal social standards and [mother] testified that she is a devotee of sado-masochism; that she is bisexual; that she engages in paganism; that she has used illicit drugs on a semi-regular basis; and that she spends a great deal of time online where she has two to four websites of so-called "blogs." The evidence also indicates that her fiance ... also engages in sado-masochism, and in the past produced and starred in a theater troupe depicting such activity while also engaging in such conduct in his private life with [mother]....

[M]other and her boyfriend have a perfect right to engage in sado-masochism, paganism and their chosen sexual orientation, but nevertheless, this Court is not convinced that [they] would exercise the due diligence that is required to engage in those practices without exposing such lifestyle to the parties' child[ and thus] adversely affect[ing]the best interests of [the child, a 4-year-old girl].

The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother's online time materially affected the time she spent with her daughter (though I assume that if the mother's problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her "spend[ing] a great deal of time online"). But the reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation.

It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at). Likewise, reliance on the fiance's theater performances seem to me barred by the Free Speech Clause. Still, even if we set the sexual practices aside, perhaps on the theory that Lawrence v. Texas provides only modest protection for sexual autonomy (a hotly debated question), the First Amendment bars a court from relying even in part on the mother's pagan religious beliefs or open participation in pagan religious rituals (except insofar as some specific conduct during those rituals endangers the child or perhaps the parent, something there's no evidence of here).

For more on courts restricting pagan practices (there, Wiccan practices), see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"), rev’d, 832 N.E.2d 1057, 1061 (Ind. Ct. App. 2005). For information on courts discriminating against parents who are less religious and less observant than their ex-spouses, see this post. For more on the general issue of child custody decisions that restrict parents' speech, or that count parents' speech and religious belief against them, see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006).

UPDATE: I should have also quoted the appellate decision, which does flag the possible impropriety of relying on religion and the like, but which also suggests that considering religion as a factor is permissible. Here is the relevant excerpt:

In this case, appellant admitted, both in her testimony and through her writings in on-line blogs, that she practiced sado-masochism, was a bisexual and a pagan. Her boyfriend corroborated these practices and beliefs....

The fact that the trial court considered appellant's personal choices and expressed concern over these choices does not warrant reversal under the circumstances of this case where the court's decision was based on consideration of other relevant factors. Therefore, even if we were to find that the court improperly considered some of the evidence regarding appellant's lifestyle choices, we are unwilling to find an abuse of discretion where there are a number of other findings that support the trial court's decision and where the court considered several other factors in making its custody determination.

In urging reversal, appellant contends that this case is analogous to [Pater v. Pater (1992), 63 Ohio St.3d 393]. However, in Pater, the trial court's award of custody to the father was based solely on the fact that the mother was a Jehovah's Witness. Thus, she was denied custody because of her religious affiliation. Both parents were deemed equally competent to care for their child and there was no other evidence finding in favor of the father. The Supreme Court of Ohio reversed the trial court's decision, finding that it was grounded in religious bias. Here, the facts are distinguishable. Unlike Pater, the trial court's decision was not based entirely on its biases or beliefs regarding appellant's personal choices. Rather, the decision was made after the court considered other relevant factors that supported its determination that it was in the best interest of the child that appellee be named the custodial parent. Appellant's reliance on Pater is therefore misplaced.

It seems to me wrong to allow courts to rely even in part on a parent's religion -- at least absent some specific finding that the religion poses a serious imminent risk to the child -- and wrong also just to assume that, even if the reliance on religion was wrong, the result would have been the same without such reliance (at least where the lower court opinion reveals that the court took the religion factor pretty seriously, rather than just mentioning it in passing). The better view, I think, is that expressed in Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (paragraph break added):

The case must therefore be remanded for a new determination of the custody issue without regard to the religious affiliations of [the parents]. [Footnote:] It is of no avail to argue ... that since finding number 5 [concerning the family environment] alone would support the award of custody to Randall, the inclusion of finding number 4 [concering religion] should not compel this court to remand the case.

The demand for legal precision is at its greatest when fundamental rights are at stake. The trial court's findings delineate only two grounds supporting an award of custody to Randall. Thus, while finding number 5, concerning the family environment, is a factor which clearly may be relied on in making a custody determination, we cannot be certain that the trial court's decision would have been the same in the absence of its reliance on the religious affiliations of the parties.


More on What FISA and the Fourth Amendment Requre -- And What They Don't: Over at Balkinization, Marty Lederman looks at the current dispute over the scope of NSA wiretapping powers and offers the following take:
[I]t must be the case that the NSA's aim is not simply to surveil foreigners who it already suspects as being part of Al Qaeda. It can obtain a FISA order as to those folks. What it wants, instead, is to be able to intercept foreign communications coming over domestic wires where (i) it does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (ii) there is a chance that some of the intercepted communications will be with persons in the U.S.

FISA does not allow surveillance where both of those conditions obtain. (Indeed, insofar as the surveillance picks up U.S. persons in such cases, without proof that either party is the agent of a foreign power, it would probably violate the Fourth Amendment, too, at least according to the pre-FISA cases that considered the question.)
  As to the first point, I think that is clearly right. Federal law plainly allows the government to monitor foreign people with no connection to U.S. soil so long as the monitoring occurs outside the United States. Such persons have no Fourth Amendment rights under Verdugo-Urquidez, and FISA does not apply. So the government wants to do the same monitoring from the U.S. switches that they can do from monitoring posts outside the U.S. That is, they want to take out the relevance of where the monitoring site happens to be. The question is whether FISA allows particular measures to try to do that given the possibility of picking up calls and e-mails to the U.S.

  Second, there are two notable reasons to think that the Fourth Amendment is not implicated in this setting. First, there are some precedents indicating that if you call someone whose calls are being monitored without violating their reasonable expectation of privacy, then it does not violate your Fourth Amendment rights to have the call recorded. See, e.g., United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995) (person speaking to a person on a cordless call being monitored by the police). I don't think the Supreme Court has addressed this theory, and I gather some VC readers will find it unpersuasive, but there are such cases on the books.

  Second, the Fourth Amendment generally is only triggered by intentional conduct. See Brower v. Inyo County, 489 U.S. 593 (1989) ("Violation of the Fourth Amendment requires an intentional acquisition of physical control."). If the government collects a call and doesn't know that it is conducting a search or seizure under the Fourth Amendment -- because it doesn't know a party has Fourth Amendment rights -- it may be that under Inyo there is no Fourth Amendment violation. (This latter argument is subject to the uncertainty as to whether wiretapping is a search or seizure or both, as well as how the mens rea requirement applies to searches, but I think it is still worth noting.)

Related Posts (on one page):

  1. Are Telcos Still Liable for NSA Cooperation?
  2. My Take on the New FISA Amendment:
  3. More on What FISA and the Fourth Amendment Requre -- And What They Don't:

Why should anyone get a free copy of my book?

Over at I offered free books — my new Discover Your Inner Economist: Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist -- to fifteen people who gave me good reasons for getting the book for free. They also had to vouch that these were reasons they truly believed in. You can read the reasons here, it is a fascinating series of arguments. One of my favorites is this:

I'm a graduate student in economics, and my funding is the sole source of income for my family (wife and daughter). My wife doesn't believe in the permanent income hypothesis, so I'm liquidity constrained. I'm searching for thesis ideas, and I think your book could be a great source.


The Inside Story of Why Congress Is Now Willing to Amend FISA: Newsweek has the story here. The key news is that after the Administration started submitting TSP surveillance to the FISA court, one of the FISA judges objected to parts of it:
[A]t some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates—concluded that some aspects of the warrantless eavesdropping program exceeded the NSA's authority under the Foreign Intelligence Surveillance Act, the basic 1978 law that governs eavesdropping of espionage and terrorist suspects, said the lawyer who had been briefed on the ruling. The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a "big deal" for the administration.
  What is the legal issue? The Los Angeles Times reports:
[O]fficials said the ruling's reach [affects] cases "where one end is foreign and you don't know where the other is" — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.
  From what I can tell, the legal issue is how FISA applies when the government wants to monitor someone outside the United States whose communications happen to be routed through the United States through U.S. switches. And specifically, what to do when the government has no idea where the people are on the other end of that person's calls and e-mails, but they want to monitor from the U.S. switch. The problem, as I emphasized in my draft article Updating the Foreign Intelligence Surveillance Act, is that the government often won't know where people are or who they are -- and if the law requires them to know that, then how the law applies will be very hard to figure out.

  Specifically, the key legal issue here probably is the scope of 50 U.S.C. 1801(f)(2), which states that a FISA warrant is required if the government acquires "the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." Under this statute, no FISA warrant is required so long as a communication is foreign to foreign. But what happens if no one knows if a communication is foreign to foreign?

  To pick an isolated example, imagine the government is monitoring Bad Guy #1 in Pakistan, outside the United States, and Bad Guy #1 gets 10 phone calls and 30 e-mails every day from lots of different anonymous phone numbers and e-mail addresses. Can the government assume that the calls and e-mails are from places other than the U.S. and monitor the calls without a FISA order? Or must the government presume that the calls and e-mails are from inside the U.S. unless proven otherwise? What kind of proof is sufficient either way?

  I gather the disagreement between the two FISA judges is what to do in this setting. Off the top of my head, the statute is probably vague enough that one judge could reasonably say that the unintended collection of information from a non-target that turns out to be in the U.S. is permitted, whereas another judge could reasonably say that the government needs to provide some kind of assurance first that no such collection is likely to occur. And depending on what kind of assurance the judge wants, that assurance could be a major shift in what kind of monitoring the government can conduct. And that presumably explains the recent Congressional move to amend FISA to clarify what should happen in these settings.

  Anyway, those are my tentative thoughts. As always, we don't know all the facts: I'm just trying to give you my best guess as to what is happening and why based on the few facts that have leaked out. I look forward to your comments.

Wednesday, August 1, 2007

Bridge collapse in Minneapolis:

I cross the 35W bridge that collapsed tonight at least twice a day to go to and from work, often during rush hour. Tonight I left my office at about 5:45 p.m. and took the 10th Ave bridge right next to the 35W bridge in order to avoid the congestion created by the recent construction on it. It went down about 15 minutes later. If I'd taken the 35W bridge, as I usually would, there's a decent chance I would have been delayed in the congestion and stuck on it when it collapsed.

As I crossed the Mississippi River tonight, I looked over and saw the cars jam-packed on 35W and remember thinking, "Thank God I didn't go that way."


More Lott v. Levitt Developments:

Yesterday a federal district court judge in Illinois rejected John Lott's motion for reconsideration of its dismissal of portions of his defamation suit against Steven Levitt, the Chronicle of Higher Eduction reports. But the litigation is not over. As the Chronicle further reports Lott’s lawyers have fired yet another salvo, asking the court for permission to file an amended complaint" based upon "new facts" that have come to Lott's attention since first filing the suit. Stay tuned . . .


Fred Thompson on Eminent Domain:

A few months ago I mentioned eminent domain reform, and especially post-Kelo reform as one interesting issue in the 2008 Presidential campaign, and mentioned some candidates' positions at that time. For those, like me, who are interested in this issue, non-candidate Fred Thompson has issued a statement on his blog describing his views on the subject. His comments can be found here.

Fred Thompson on the Leslie Southwick Nomination,



"Sunday Suit" Decided -- But Not on "Sundays":

Today the Ohio Supreme Court issued its opinion in the "Sunday Suit," siding against Ohio Governor Ted Strickland. The suit arose out of a dispute over whether Strickland could still veto a bill on his first day in office that had been passed at the end of the legislature's term, and that his predecessor, Bob Taft, had intended to let become law without his signature. Strickland said "yes," and purportedly vetoed the bill. The leadership of the state legislature cried foul, and filed suit. By a vote of 5-2, the Ohio Supreme Court said "no," concluding the bill had become a law by the time Strickland sought to veto it.

As I chronicled in these posts, the controversy centered on whether the clock had run on the Governor's opportunity to veto the bill. The Ohio Constitution specifies that bills become law within ten days if not vetoed by the Governor. But how do we know when the ten days is up? Here is the relevant language:

If a bill is not returned by the governor within ten days, Sundays excepted, after being presented to him, it becomes law in like manner as if he had signed it, unless the general assembly by adjournment prevents its return; in which case, it becomes law unless, within ten days after such adjournment, it is filed by him, with his objections in writing, in the office of the secretary of state.
One issue was whether Sundays should count as days after the legislature adjourns for the end of the session. Sundays are explicitly excepted in the first clause, but not in the second, leading some to argue that they should count as days when counting from adjournment, but not when counting from presentment.

While the Sunday issue was the focus of earlier coverage (and my blog posts), it was not the basis for the Court's decision. Instead, the majority opinion by Justice Cupp, himself a former state legislator, concluded that ten day period expired whether or not Sundays were counted, because the clock began running on December 26, when the legislature adjourned, rather than on December 27, when the bill was presented to the Governor. This means the ten day period expired no later than Saturday, January 6. So, when Strickland took office on January 8, it was too late.

One of the dissents was written by Justice Pfeifer, easily the all-Republican Court's most liberal member, was particularly pointed, accusing the majority of "a new level of judicial activism — a wholesale rewriting of the Ohio Constitution." Justice Pfeifer, writing only for himself, wrote:

Nothing in the law supports the majority opinion’s conclusion. Nothing in the majority opinion would convince an objective reader that the conclusion is just or in any way supported by case law, statutory law, learned treatises, or the plain language of Section 16, Article II of the Ohio Constitution.

Why is the majority deciding this way today? I do not know. In the ultimate display of result-oriented justice, its reasoning shifts. From the day of oral argument, the unfolding of the majority opinion has been the story of a result in search of a justification and an author.

Is the majority troubled by Governor Strickland identifying a loophole and bursting through it? Whether one considers Governor Strickland’s veto gambit as clever or devious, whether one believes that vetoing legislation when the preceding governor has made it known that he wishes the legislation to become law without his signature is impertinent or tactical, the fact remains that his decision was hardball politics. Brilliant or backhanded, it was politics. And most importantly, it was constitutional. . . .

Controversies like this are to be expected with shifts in the balance of power. The battles that ensue from those shifts are best fought by politicians. Today this court wades into politics and overreacts. At the end of the day, real damage has been done to the Ohio Constitution. That the damage is inflicted by this court is ironic and dispiriting.

While Justice Pfeifer thought "nothing in the law" supported the majority's conclusion, many of the other Justices (including the other dissenter, Justice Lanzinger) joined opinions suggesting this was a difficult decision. Two of the concurring justices — Justice Lundberg Stratton who joined the majority opinion and Justice O'Donnell who only concurred in the judgment — suggested an alternative basis for the holding of the Court. They suggested that once Governor Taft filed the bill with the Secretary of State, the Governor's authority over the bill terminated, and the bill could not be recalled by the successive Governor for a subsequent veto.

Justice O'Connor also concurred separately to respond specifically to Justice Pfeifer's insinuation that the majority's decision was motivated by political considerations. Her opinion also includes some strong language (for a judicial opinion) and alludes to specifics about the Court's consideration of the case.

When judges and justices engage in robust discussion in furtherance of the search for consensus, we are rightfully expected by the people who elect us to act with respect and courtesy. In turn, we have often called upon attorneys to practice their profession with civility. Although civility is an amorphous concept in legal arenas, at a minimum it suggests proceeding without insult and ad hominem attacks when discussing those who hold an opposite view. Unfortunately, Justice Pfeifer disregards the same civility he once espoused in favor of a dissent filled with sarcastic scurrility.

The dissent states that our holding in this case was reached in a result-driven process that was started on the day the case was argued and that has been fueled by political considerations since then. Nothing could be further from the truth.

As the dissenter knows, our internal debate on this matter has been extensive. The outcome in this case was not preordained.

As the dissenter knows, I, and at least one other member of this court, gave careful consideration to a former draft of an opinion he circulated more than ten weeks ago, notwithstanding its vitriolic invective. The fact that five separate opinions have been written on the merits of the claims raised here suggests, quite strongly, that the members of this court are not of one mind – or persuasion. . . .

Each justice takes an oath to fulfill that duty to the best of his or her ability. To wrongly call into question the integrity of justices with opposing views maligns our personal and professional reputations, including that of the dissenting justice. Most offensively, however, it undermines the integrity of the court itself.

To disparage the members of the court with the dishonest suggestion of political expedience is disheartening personally, but more important, it is a professional disservice to the parties and institutions involved and to the people of Ohio. Justice Pfeifer’s dissent is incorrect insofar as it states that real damage has been done to the Ohio Constitution. More correctly, the real damage has been done to the perception of the judiciary’s integrity. I am left to wonder if he understands that it is his words that have inflicted the “ironic and dispiriting” damage.

Based on my reading of the Ohio Constitution, I am inclined to believe both arguments supporting the majority are correct. These arguments seem to have a firmer grounding in the relevant text than Pfeifer's alternative read. I also believe that the "Sundays" argument that the majority failed to reach is plausible as well. I can envision many reasons why Sundays would not count in the normal course of business, but would count when the legislature adjourns for the year. Among other things, it would make controversies of the present sort less likely. In the end, I find it quite incongruous that a newly elected governor could veto legislation enacted the prior year that the then-sitting governor intended to let become a law, and it seems to me that the text of the Ohio Constitution is in accord with this view.

Here is some preliminary coverage of the decision in the Cleveland Plain Dealer and Columbus Dispatch. Hat tip: Right Angle Blog.


My Legal Times Article on Wilkie v. Robbins:

I have just published an article in the Legal Times on the Supreme Court's important, but largely overlooked, property rights decision in Wilkie v. Robbins. Here's a brief excerpt:

Lost in all the attention devoted to the Supreme Court’s more high-profile end-of-term cases was an important property rights decision issued on June 25: Wilkie v. Robbins . . .

In the short run, the main effect of Wilkie is to ensure that some property owners will not have adequate remedies for violations of their constitutional rights by federal government officials. This is a potentially serious problem in Western states . . . where the federal government has extensive landholdings and disputesbetween federal agents and local property owners periodically lead to violations of constitutional rights.

More broadly, Wilkie reinforces the long-standing second-class status of constitutional property rights. In previous cases..., the Court often defined the scope of property rights in a much more restrictive way than is usually applied to “noneconomic” rights such as freedom of speech and religion. In Wilkie, it ensured that even indisputable violations of constitutional property rights will be compensated less adequately than violations of other individual rights.

The article was partly based on several VC posts that I wrote about Wilkie. See here, here, and here.


Race-Based Hate Crimes, the UCR, and the NCVS:

The recent talk about hate crimes reminded me of some data I looked at a while ago, but never got around to blogging. I thought, then, that I'd bring it up now, especially since my sense is that it hasn't gotten much coverage elsewhere.

Let's begin by briefly discussing The Nation's two crime measures, the UCR and the NCVS. The UCR (Uniform Crime Reports) reports on crimes that are reported to, and then reported by, the police. The NCVS reports on what is said by people surveyed through the National Crime Victimization Survey; it includes crimes that aren't reported to the police, and aspects of crimes that aren't reported to or by the police.

Each has possible flaws: The UCR doesn't cover unreported crimes, and in some ways reflects police classification decisions more than anything else. The NCVS is more prone to error as a result of respondent mistakes or falsifications, since no-one investigates the respondents' claims. To give you a sense of the difference between the two, note that the UCR Hate Crime Statistics 2005 reports 7163 hate crime incidents in 2005; the NCVS Hate Crime Reported by Victims and Police (2000-2003 data) estimates "[a]n annual average of 210,000 hate crime victimization incidents." Figure out for yourself which you think is most plausible; my sense is that the NCVS tends to be more reliable (except as to homicide, which the UCR measures pretty well, and which the NCVS for obvious reasons doesn't measure at all).

In any case, what does the UCR tell us about 2005 race-based hate crime incidents? Of the 3919 such incidents, 21% were anti-white and 67% were anti-black. Keep in mind that 75% of the population is white and 12% is black (numbers subject to change slightly depending on how one allots the "other" category and multiracial categories; Hispanics are not classified as a separate race). The UCR data suggests that the victimization rate for race-based hate crimes is 20 times higher for blacks than for whites.

What does the NCVS tell us about 2000-2003 hate crime data? It reports that 56% of all hate crime victims, according to data reported by respondents, were victims of race-based attacks. It unfortunately doesn't break down the race just of those offenders who report race-based incidents, but it reports that the total annual victimization rate for all hate incidents per 1000 people is 0.9 for whites and 0.7 for blacks; 85% of all victims were white, 9% were black.

Thus, assume all the non-race-based attacks were against whites, and all the attacks against blacks were race-based — just to take the scenario that would produce the highest ratio of black/white victimization by race-based hate-crimes. Then, out of 1000 incidents in which there were 850 white victims and 90 black victims, 410 (850 minus the 440 non-race-based) would be race-based attacks on whites, and 90 would be race-based attacks on blacks. This means the maximum victimization rate ratio for race-based hate crimes would that the rate is a bit under 1.4 times higher for blacks than for whites.

I also asked Joe Doherty at the UCLA law school's Empirical Research Group to analyze the NCVS raw data for race-based incidents only, for 1992-2003. The results — which let us avoid having to make any assumptions about how the non-race-based incidents shake out by victim race — were that whites accounted for 64% of the victimizations, blacks for 11%, and Hispanics for 15.5%. Joe's analysis broke Hispanics out into a separate category, but setting them aside means that the victimization rate for race-based hate crimes would be about the same for blacks as for whites.

Which is the right ratio? For that matter, which is the right estimate of total hate crime incidents — 7000 (UCR), 7000 * 7 (to roughly for agencies that didn't submit any incident reports), or 210,000 (NCVS)? You be the judge. My tendency is to assume that the NCVS is generally sounder here as it is elsewhere, though there's no doubt that there are threats to validity in the NCVS as well as the UCR. But even if this is uncertain, just keep in mind the dangers of relying exclusively on UCR-based accounts.


"Feloniously": Eugene's mention of a 1792 North Carolina case reporting an indictment "for feloniously and burglariously breaking and entering" reminds me of a case I briefed and argued when I was at DOJ, United States v. Simmons, 47 F.3d 118 (4th Cir. 2001).

  The question was the meaning of "feloniously" in 18 U.S.C. 662, a statute punishing the receipt of goods that have been "feloniously taken, stolen, or embezzled." The defense argued that the taking was not "felonious" because it was only a misdemeanor. The issue in the appeal: Does "feloniously" mean "in the course of a felony" or simply "with intent to steal"?

  My brief for the United States is available here. Very fun brief to write. How often do you get to discuss Blackstone, 17th Century English statutes, and the United States Court of Appeals of Indian Territory in a single brief?

Better Excise Confederate Flags from Any Civil War Images You Have in Your Office,

including images of noted Confederate defeats: The Hartford Courant reports:

A coffee mug used by Department of Public Safety Commissioner John A. Danaher III showing the Confederate flag in a Civil War battle has angered black leaders who said it was insensitive to display a symbol of hate, particularly when the state police have been under fire for complaints of racism.

The issue arose Wednesday night after the NAACP met with members of the Commission on African American Affairs to discuss how to address recent allegations of rampant racism within the state police and state Department of Correction. The African American Affairs Commission is a group of citizens appointed by the legislature to improve and promote the well-being of African Americans in the state.

After the meeting, Dawne Westbrook, the attorney for the NAACP, said she was contacted by a state trooper who was offended by the mug, which she saw Danaher drinking from when she met with him in his office over the racism issue and other problems within the department.....

While Danaher has sent the letter of apology to Master Sgt. Theresa Freeman, and said he has taken the mug home, he said it depicts an artist's rendition of the third day of the battle of Gettysburg, with the beaten Confederate soldiers retreating.

Danaher said he has used the mug for seven years since his sons bought it for him as a gift when they visited Gettysburg.

"There are pictures of soldiers on horseback in retreat having lost," Danaher said. The flags were the "size of a postage stamp," he added....

But black leaders said Danaher should have been more sensitive about the symbol, particularly when he was meeting with a black trooper....

Scot X. Esdaile, president of the Connecticut state conference of NAACP branches, urged the commission to join forces and hold a public hearing about the racism issue.

"If it's true that needs to be dealt with immediately," Esdaile said. "There is a deep history of pain and suffering under that flag and we need to have a zero tolerance."

A letter that appears to be from the state trooper involved seems to corroborate Danaher's factual report of what's on the mug, and to report that the trooper "was not offended by the picture on the cup, but ... thought the commissioner was being insensitive by drinking from it during our conversation."


The Dodgers:

I don't know how many of you saw the HBO Special that aired several weeks ago about the Brooklyn Dodgers ("The Ghosts of Flatbush"), but it was really wonderful stuff, and I recommend it to those of you who didn't see it but who might be able to catch it as part of an On Demand service. I'm a Brooklyn boy, born and bred (and damn proud of it, too!), six years old when the Dodgers decamped for L.A. (an event that had deep significance for me and for most other kids growing up in Brooklyn at the time), so maybe it's just me -- the Dodgers' story does, I admit, grab me in some deep place. But I think it's more than that; the Dodgers were integral parts of three of the great stories in post-war America: (1) Jackie Robinson, (2) Winning the '55 Series (after having lost and lost and lost and lost, often in heart-breaking fashion, and usually to the Yankees), and (3) Moving West. It's not "Greek tragedy," but Aristotle would have recognized the themes: the Brotherhood of Man, the Triumph of Good over Evil, and Abandonment and Loss. That's a pretty good list for 10 years ('47 - '57), and it made for a terrific couple of hours of intense TV.



Not only is it a word, but the related "burglarious" has the Sir William Blackstone seal of approval. Westlaw also manages to beat the OED on this one; "burglariously" is attested by the OED only as far back as 1807, but a quickie Westlaw search locates a 1792 North Carolina case reporting an indictment "for feloniously and burglariously breaking and entering into the dwelling house of one Rice." Google Books finds a reference from The Gentleman's Magazine in 1789; Galenet finds one from 1724, which apparently paraphrases a 1640 statute as providing that

If any be Indicted or Appealed, for the Death of any evil disposed persons Attempting to Murther, Rob, or Burglariously or Feloniously to Break any Mansion House (and the same is so found by Verdict) he shall Forfeit no Lands or Goods for the same, but shall be fully Acquitted thereof ....

The oldest source I could find for "burglarious" is an index to a legal handbook published in 1749. (I'll follow Sasha's lead by reporting these early references to the Oxford people, since they try to include the earliest available references in their entries.)

I do not advise that you use the terms, though, except for humorous effect.

Related Posts (on one page):

  1. Burglariously:
  2. Burglariously:

Burglariously: I wouldn't have guessed that "burglariously" is a word, but apparently it is.

Related Posts (on one page):

  1. Burglariously:
  2. Burglariously:

A Bit of Perspective on the Use of Feces and Toilets in Protests:

As I've noted below, I think it's wrong for Stanislav Shmulevich to face felony prosecution for stealing and destroying two books from the Pace library.

At the same time, let's have a bit of perspective here: Throwing books in the toilet and defecating on them is a strikingly vulgar and juvenile way of expressing yourself, and would be even if Shmulevich had refrained from theft and vandalism and did this with his own Koran (and cleaned up after himself so as not to jeopardize Pace's plumbing).

That Shmulevich is being mistreated here shouldn't lead us to lose sight of the fact that his actions, even setting aside the theft, are hardly admirable.

Related Posts (on one page):

  1. A Bit of Perspective on the Use of Feces and Toilets in Protests:
  2. The Perils of Hate Crime Laws:
  3. The Shmulevich Case -- Facts and New York Law, as I Can Best Figure Them Out:

Will Congress Amend FISA This Week?: It looks like Congress might vote to amend FISA this week; the New York Times has the story here. I don't know the details, but it looks like the issue would be a narrow amendment to clarify that the interception of foreign-to-foreign communications are not covered by FISA. More when details are available. For my own views of how FISA should be amended, see my forthcoming article, Updating the Foreign Intelligence Surveillance Act.

How BigLaw Recruits Associates: The American Lawyer has this interesting story on firm recruiting at large law firms. For a clever take on how the process looks from the perspective of students being recruited, see here.

Do lawyers get better medical and dental treatment?

In my new book Discover Your Inner Economist: Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist, I discuss the claim that lawyers get better treatment from their doctors and dentists, at least compared to the average person. Fear of litigation is one possible mechanism, but not the only one. Addendum: Just to be clear, let's adjust for income, which is likely to be above average.

I would love to know what you all think; comments, of course, are open.


[Ward Farnsworth (guest-blogging), August 1, 2007 at 9:06am] Trackbacks
The Stag Hunt.

The Legal Analyst has a section on cooperation and other problems for groups. Some of the chapters in that section involve game theory, and one of them covers the game known as the stag hunt. Let me explain it here. It’s fun to think about, and I’ve found that it’s less well-known than the prisoner’s dilemma (which is also discussed in the book, of course).

The two of us are hunters. If we cooperate we can take down a stag and have it for dinner; if we work alone, we’ll only be eating hare. My hope, of course, is that we’ll cooperate and eat stag. But I wouldn’t want to hunt stag if you don’t; that’s my last choice. It will be a waste of time and leave me hungry. Of course you don’t want to go after stag, either, unless you’re sure I will, too.

So maybe we can agree to work jointly and have a stag hunt, but there is risk in it. Unless we have good reason to trust each other, the temptation will be great for either of us to give up on the stag and give chase to any hare that goes by. At least if I do get a hare I no longer have to worry that I’ll end up with nothing if you decide to go after a hare because you think it’s good insurance against the danger that I’ll go after a hare because I’m worried that—and so forth.

We owe this parable to Rousseau’s Discourse on the Origin and Basis of Inequality among Men. There are many situations like this where players in a drama do best by all cooperating, but otherwise had better all defect; if they don’t all cooperate (or if some critical mass won't cooperate), in other words, then nobody should — so perhaps nobody does. A mutiny can be another simple example, or (more vividly in our times) efforts to overpower hijackers on an airplane.

The stag hunt may remind some readers of the prisoner’s dilemma, but it works differently. In a prisoner’s dilemma it’s best for you to defect no matter what I do. In a stag hunt that’s not true; if I know you will cooperate, I’ll want to cooperate, too. Sometimes a stag hunt is said to be an assurance game because that is the true issue: if everyone has good assurances that everyone else will cooperate, they will be glad to do the same.

For understanding these games, the idea of a Nash equilibrium helps. The players of any game have arrived at a Nash equilibrium if, given what everyone else is doing, none can do better by changing their strategies. Sometimes there is more than one equilibrium the parties can reach, and a stag hunt is an example of this. Do you see why?

Eating hare is an equilibrium. If we take as given that you’re eating hare, there’s no sense in my getting up to chase stag; if we take as given that I’m eating hare, there is no point in your chasing stag, either. The situation is unappetizing but stable. We all could do better by changing, but it wouldn’t be rational for either one of us to be the first. So we just keep eating hare. Yet hunting stag also is an equilibrium if we somehow can get there. Once we’re doing it — once we’re cooperating confidently — there’s no reason for anyone to go back to having hare.

Efforts to solve stag hunts, like the problem of rent seeking discussed yesterday, help to explain some laws and legal doctrines; examples are discussed in the book, and include deposit insurance for banks, “circuit breakers” in stock markets, some cases of neighborhood segregation, and maybe even some of the rules about when judges are supposed to interview and hire law clerks. The value of understanding the stag hunt (or any game) is that it allows you to perceive common patterns in situations like these. That's interesting in itself, and it also can then help you make sense out of new problems that aren't solved yet and just look like an uncooperative mess.

Perhaps you can suggest some other “stag hunt” situations that law is used to address (sometimes the tricky part is separating these from the prisoner's dilemmas, where your first ("rational") choice is for everyone to cooperate except you; those tend to be more common than stag hunts and to call for different sorts of solutions). Or maybe you would enjoy speculating about some situations that might be stag hunts might not be. Part of what makes a stag hunt interesting is figuring out why the game works that way — in other words, what makes people reluctant to do X unless others do it, too. Why are some people so much more willing to support redistributive tax policies that bind everyone than they are to just voluntarily write checks that redistribute their own income to others? Why did so many hockey players resist wearing helmets until it was made a rule? Etc.


DNI Adds More Details Re TSP and Call Records Programs: The investigation and defense of Alberto Gonzales is resulting in still more disclosure (albeit drip by drip) about the details of the scope of the Terrorist Surveillance Program and the NSA Call Records program and related post-9/11 intelligence activities. Yesterday the Direct of National Intelligence Michael McConnell sent a letter to Senator Leahy clarifying the following:
1. There were several different programs, of which the disclosed TSP was only one. The rest remain classified.

2. All of the different programs were authorized and reauthorized by the President in a single executive order. The order was reauthorized every 45 days. The precise scope of the combined program changed over time.

3. The phrase "Terrorist Surveillance Program" was made up in 2006 after that part of the program was disclosed (which was pretty obvious -- it's a public relations label, not one that would be used for the intel community). The label was designed to be used only to refer to the disclosed part of the overall program, not the overall program.
  Ths Washington Post's coverage of the letter is here.

Indoctinate U and The Columbia Quiz:

I've previously noted Evan Coyne Maloney's documentary Indoctrinate U. Evan has now put up on his website a scene that was deleted from the final cut of the film. He calls it the "Columbia Quiz."


Tuesday, July 31, 2007

When Do Authors Submit Law Review Articles?: In a forthcoming article on the law review placement process, Navigating the Law Review Article Selection Process: an Empirical Study of Those With All the Power—Student Editors, found via Co-Op, authors Leah Christensen and Julie Oseid include data collected by a "top 25" law review on how many submissions they received on a week-by-week basis from mid-February to mid-October.

A Moose for a Lawyer:

From today's Seventh Circuit opinion by Judge Easterbrook in Nunez v. U.S. (thanks to How Appealing for the pointer):

A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment.

Is this the birth of a new professional pejorative? "He's such a moose." "She's a total moose."

On the other hand, later on the opinion suggests it disapproves of "a rule that a lawyer is the client's puppet." Especially not, I hope, a moose puppet.


Ingmar Bergman, RIP:

Ingmar Bergman, one of the greatest filmmakers of all time, died yesterday at the age of 89. Here is the New York Times obit and a collection of Bergman-related stories. Libertas' Jason Apuzzo has a remembrance here. An index of his work is available on IMDB here.

UPDATE: Michelangelo Antonioni died too. Daniel Drezner sees a plot.


Cheney Can't Recall If He Sent Gonzales and Card to Hospital to Get Ashcroft Authorization: From tonight's interview with Larry King, via TPMMuckraker:
KING: The New York Times — which, as you said, is not your favorite — reports it was you who dispatched Gonzales and Andy Card to then-Attorney General John Ashcroft's hospital in 2004 to push Ashcroft to certify the President's intelligence-gathering program. Was it you?
THE VICE PRESIDENT: I don't recall — first of all, I haven't seen the story. And I don't recall that I gave instructions to that effect.
KING: That would be something you would recall.
THE VICE PRESIDENT: I would think so. But certainly I was involved because I was a big advocate of the Terrorist Surveillance Program, and had been responsible and working with General Hayden and George Tenet to get it to the President for approval. By the time this occurred, it had already been approved about 12 times by the Department of Justice. There was nothing new about it.
KING: So you didn't send them to get permission.
THE VICE PRESIDENT: I don't recall that I was the one who sent them to the hospital.
  UPDATE: As some commenters note, Cheney's statement is likely to add fuel to the fire over whether Gonzales was being truthful about the scope of the TSP. At the very least, it suggests an understanding within the White House that it was the TSP that was at issue in the now-famous hospital showdown.

Sasha Singing About Hayek:

Here's a video someone (I don't know who) made at an IHS event. Note that the video doesn't include the entire song, which goes like this:

We're doing battle with statists
Across the USA,
'Cause everybody's reading Hayek,
The man from Austri-ay --
In spontaneous order
We let the market play,
With the writer Fred Hayek,

We use the signals of prices
And then we'll be O.K.,
'Cause no one knows what's efficient
Unless they have to pay;
If we replace that with planning
Like once in Russ-i-ay, [pronounced "Rush-Eye-Ay"]
We'll take the road to serfdom --
Serfdom USA.

[Backup singers should at this point start singing, "Serfdom, serfdom USA, Friedrich H-A-Y-E-K."]

We still have government bureaus,
Just like the FDA, [replace with three-letter agency of your choice ending in A]
But the welfare state mindset
Will soon become passe.
Ayn Rand said he was evil,
Which makes him A-O.K. --
Friedrich August von Hayek, H-A-Y-E-K.

For another Hayek song, see here.


Congressional Republicans Beating Congressional Democrats by 6-2 Margin, at least in the criminal investigation competition.

Sowood Capital Latest Casualty of Credit Market Turbulence:

The hedge fund, run by the former manager of Harvard's endowment, is liquidating after losing 57% of its value. Fortunately for Harvard, it had "only" 500 million dollars invested in this fund. This follows the high-profile collapse of two Bear Stearns credit market hedge funds, victims of the subprime debacle.

Well, Harvard can't say it wasn't warned. I posted on Feb. 27th: "[I]f I had my money in a hedge fund that even provided a hint that it invested in mortgage-backed securities, I'd be pulling my money out pronto. Remember Long Term Capital Management? These folks aren't as smart as those folks." [Concession: I can't tell from news reports what percentage of Sowoods' funds were in mortgage-backed securities, as opposed to other debt instrument.]

Note: Despite the allure of wishful thinking, even though I'm a homeowner now, I don't think the housing bubble has finished deflating.


The Political Leanings of Law Firms: David Lat has an interesting post at Above the Law on the political leanings of law firms. I agree with David's sense that most firms don't care -- which is to say that they reflect the view of the professional crowd drawn to that city, but they don't make a big deal of it -- but that D.C. firms are more likely to have a reputation as identifying one way or the other. DC is unusual in that a lot of people in DC firms want to go into government at some point. There's a crowd that will to pick firms based in part on contacts they expect to make to help them get a job in the OTCMGE Administration, which results in some firms leaning towards particular parties.

  That's my impression, at least: Lawyer-readers, what do you think?

The State of LawProf Blogging: Over at Concurring Opinions, Dan Solove has posted the latest "Law Professor Blogger Census." The key point: the number of law professor bloggers continues to increase steadily.

  I wonder: Would you get the same impression by counting the number of posts rather than the number of self-identified bloggers? My very casual impression is that the number of professors who are members of a blog is growing, but the set who post regularly is still very small. That's my sense, at least: I only read a small subset of law blogs, so maybe I'm wrong on this.

Ban on Publishing Names of Certain Government Workers:

Missouri just enacted a new statute (2007 House Bill 820, revising Rev. Stat. Mo. § 546.720), which provides in relevant part:

3. A person may not, without the approval of the director of the department of corrections, knowingly disclose the identity of a current or former member of an execution team [i.e., a group of people chosen to perform executions] or disclose a record knowing that it could identify a person as being a current or former member of an execution team. Any person whose identity is disclosed in violation of this section shall:

(1) have a civil cause of action against a person who violates this section;

(2) be entitled to recover from any such person:

(a) actual damages; and

(b) punitive damages on a showing of a willful violation of this section.

A state is free to demand that its employees, and others with whom it contracts, not reveal certain confidential information. It is probably also free to impose civil or even criminal liability for people who violate such confidentiality obligations -- consider, for instance, the law barring the disclosure of income tax records. But a state may not punish third parties (such as reporters, commentators, activists, bloggers, and the like), who never entered into any confidentiality agreements, for revealing accurate information about whom the state is using to perform this important government function.

Perhaps in rare circumstances a state may restrict publishing employees' names when doing so would risk violent attack on the employees, though even there I have argued the First Amendment should generally prevail, since knowing even the names of undercover policemen and the like can often be important for the public's evaluation of government actions. I'm unaware, however, of any real risk of violence to people who are on execution teams, nor is the law limited to situations in which such a risk of violence is present.

Nor should this speech be punishable, I think, on the grounds that whoever republishes it must be aware that it was originally illegally leaked by some government employee. First, sometimes the information may indirectly come from incautious statements by the execution team members themselves, or their relatives or friends who know the team members' identities. But second, the government generally may not punish the redistribution of speech by third parties simply because the original leaker was violating some confidentiality obligation -- if it could, then a wide range of investigative journalism, for instance reporting on corporate or government misconduct, would be legally punishable, on the theory that it reports on information that employees were duty-bound to keep confidential. See generally the Supreme Court's decision in Bartnicki v. Vopper for a discussion, albeit not entirely conclusive, of a related issue.

Of course, people who participate on execution teams may suffer social ostracism or even private discrimination -- not from me, but perhaps from some people who are strongly opposed to the death penalty. But the government may not punish people from publishing accurate information simply because this information might prove embarrassing and socially troublesome for some people.

And this is especially so when the information is connected to such an important government activity, and may be relevant to whether it's being carried out soundly. The Missouri law, according to a New York Times story published yesterday, was enacted following a controversy over supposedly flawed executions: "A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state's protocol called for, explaining that he is dyslexic. 'So it's not unusual for me to make mistakes,' said the doctor, who was referred to in court papers as John Doe I." The identity of the doctor may be quite relevant to deciding whether the state was negligent in using him; and the identity of doctors who deny making mistakes may be relevant to deciding how credible they are.

Thanks to M. Louis Offen for the pointer.


Germany to Stop Subsidizing Coal:

Germany has decided to phase out subsidies for the domestic coal industry over the next decade.

For decades, German lawmakers have propped up the industry, unwilling to risk massive layoffs and reluctant to eliminate a reliable energy source as gas and oil supplies become scarcer.

But after spending more than $200 billion in subsidies since the 1960s, the federal government this year decided that the practice had become unaffordable. The 2018 sunset for the hard-coal industry was set.

Economists and free-market lawmakers have long decried the subsidies as handouts to the politically influential coal industry and powerful trade unions. This year, for instance, Deutsche Steinkohle AG, the owner of the remaining eight mines, will receive more in government subsidies ($3.3 billion) than it will from selling coal ($2.9 billion).

With just 32,000 miners left, that's the equivalent of more than $100,000 in annual subsidies per worker.

As bad as U.S. coal subsidies are (and I'd like to see them phased out too), Germany's sound worse. At least U.S. coal companies are profitable.


Did Alberto Gonzales Commit Perjury?: I find myself more or less in agreement with Ruth Marcus, at least based on what we know so far. As I've said before, more than once, I think Gonzales should resign as AG. But based on the public record, the allegations that he committed perjury seem pretty weak to me.

Are Democrats Short-Sighted on Judges?

Stuart Taylor thinks that Senate Democrats are being short-sighted on judicial nominations, and that their actions may come back to haunt a President Clinton or Presient Obama:

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative? . . .

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

I would add to Taylor's argument an additional reason why the Senate Democrats' approach is particularly short-sighted: As a campaign issue, judicial nominations has been a more successful campaign issue for Republicans than Democrats. In both the 2002 and 2004 elections, judicial confirmations were an issue that helped motivate the Republican base and boosted GOP candidates in tight Senate elections.

As I have said before (perhaps ad nauseum), I believe that Senate "advice and consent" should be fairly deferential, and I do not believe that ideology is a reason to reject highly qualified judicial nominees. Insofar as judicial philosophy should influence judicial selection, I believe it should influence the President's selection of nominees, not the Senate's decision on whether to confirm that nominee.

Among other things, I believe there are many reasons why the Executive is more likely to take a "long view" in assessing judicial philosophy than is the Legislature, and is less likely to focus on specific judicial controversies. Some of these reasons were suggested by Alexander Hamilton in Federalist 76.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that." This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
Others relate to the fact that Presidents are term-limited, whereas Senators are not — meaning that Senators are more likely to have to "live with" the decisions of confirmed judges for a longer period of time than the President, and therefore may be prone to consider how a judge will address specific issues. Thus, executive branch interviews of judicial nominees include broad discussions of judicial philosophy, whereas Senators routinely try and pin judges down on specific issues, sometimes even specific cases.

Such arguments aside, Taylor is clearly correct that Senate Democrats are creating conditions for future judicial nomination fights with their treatment of Southwick and other Bush nominees.

UPDATE: I have already addressed most of the objections of the questions raised in the comments in prior posts on judicial nominations. I summarize my views in this post, which includes links to prior posts with greater detail. (See also here.)

I recognize the difficulty of convincing either side to engage in "unilateral disarmament." My suggestion -- which I have made before but is hardly original with me -- would be for a Senate resolution endorsing a given set of rules to take effect after the next Presidential election. If done far enough in advance, there is the possibility that there would be enough uncertainty about which party would control the White House (and the Senate) that each side might agree, but it would require substantial political leadership to make this happen -- and the window for such a deal before the 2008 election is rapidly closing.

Related Posts (on one page):

  1. Are Democrats Short-Sighted on Judges?
  2. Senator Schumer's Says No More GOP Justices:

Discover Your Inner Economist:

The subtitle of my new book is "Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist." You can order it here.

Eugene asked me to write a few posts on the book; I thought I would start by citing an characterization:

An earlier generation of these books, like Steven Landsburg's The Armchair Economist and David Friedman's Hidden Order, tackle the economic puzzles of everyday life by applying good old-fashioned price theory to novel situations. Many of the new spate of pop-econ page-turners reflect the maturation of economics as an increasingly empirical science. Freakonomics is the exemplar of this shift. But Cowen's new book, which may seem superficially similar to old-style pop-econ, in fact integrates a great many of the insights of Levitt-style work, as well as insights from behavioral and experimental economics... Cowen's synthesis of these new insights adds up to a level of psychological realism heretofore unseen in the pop-econ genre. If Cowen succeeds in offering excellent cute-o-nomic advice, and I think he often does, it's because economics as a whole is now generating a more empirically adequate picture of the world. For those of us weird enough to love economics, that's better than cute: that's beautiful.

I would go further: we won't make much more progress on the macro issues without first understanding the micro-complexities of everyday human life. Why are nominal wages sticky at the macro level? In the United States at least, it's not mainly about long-term contracts or government regulation (those do play a role, however). It's more about morale, the need for workers to feel in control of their situation, and perceptions of fairness. If you want to understand what is happening in the BLS statistics, you're not wasting your time if you are hanging around the water cooler and listening to what people have to say.

Monday, July 30, 2007

Does CJ John Roberts Have Epilepsy?

According to the AP:

U.S. Chief Justice John Roberts, the senior judge in the United States, was reported alert and fully recovered from a seizure and fall at his seaside summer home, in which he experienced minor scrapes but no serious injuries.

Supreme Court spokeswoman Kathy Arberg said Monday that Roberts, 52, would remain overnight in a hospital in the northeasternmost U.S. state, Maine. "It's my understanding he's fully recovered," said Christopher Burke, a spokesman for Penobscot Bay Medical Center, where Roberts was taken. . . .

Roberts was taken by ambulance to the medical center, where he underwent a «thorough neurological evaluation, which revealed no cause for concern,» Arberg said in a statement.

Roberts had a similar episode in 1993, she said.

Doctors called Monday's incident «a benign idiopathic seizure,» Arberg said. The White House described the January 1993 episode as an «isolated, idiosyncratic seizure. A benign seizure means that doctors performed an MRI and other tests to conclude there was no tumor, stroke or other explanation.

In addition, doctors quickly would have ruled out simple explanations such as dehydration or low blood sugar.

By definition, someone who has had more than one seizure without any other cause is determined to have epilepsy, said Dr. Marc Schlosberg, a neurologist at Washington Hospital Center, who is not involved in the Roberts case.

Whether Roberts will need anti-seizure medications to prevent another is something he and his doctor will have to decide.

But after two seizures, the likelihood of another at some point is greater than 60 percent.

"When it's going to occur, obviously nobody knows," Schlosberg said.

The incident occurred in midafternoon on a dock near Roberts' home in Port Clyde on Maine's Hupper Island. Port Clyde, which is part of the town of St. George, is about 90 miles by car northeast of Portland, midway up Maine's Atlantic coast.

Roberts was taken by private boat to the mainland, then transferred to an ambulance, St. George Fire Chief Tim Polky said.

"He was conscious and alert when they put him in the rescue (vehicle)," Polky said. . . .

Larry Robbins, a Washington attorney who worked with Roberts at the Justice Department in 1993, said he drove Roberts to work for several months after Roberts' seizure. Robbins said Roberts never mentioned what the problem was, and he never heard of it happening again. . . .

UPDATE: Interesting perspective from Ace of Spades.


It's Not Every Day That the FBI Executes a Search at a United States Senator's home.

Chief Justice Roberts: reports:
  Chief Justice John Roberts suffered a seizure Monday, causing him to fall while at his summer home off the coast of Maine, the Supreme Court said.
  Chief Justice John Roberts was taken to a hospital in Maine after a fall at his summer home.
  Roberts has "fully recovered from the incident," and a neurological evaluation "revealed no cause for concern," the Supreme Court said in a statement.
  Doctors called the incident a "benign idiopathic seizure," similar to one suffered by the chief justice in 1993, the court statement said. An idiopathic seizure is one with no identifiable physiological cause.
  We don't know much in terms of the details -- to the extent they are knowable -- but Lyle Denniston has a bit more at SCOTUSBlog.

The New Anti-Blasphemy Laws:

For more on the resurgence -- in the U.S., fortunately still mild -- in attempts to punish blasphemy, see this thread here.

As I noted below, the Shmulevich prosecution seems to be an unusual sort of hate crime prosecution, in which Shmulevich's punishment may be enhanced simply because he was motivated by religious hostility. But the connection to blasphemy seems to me clear: Speech or conduct that is intended to offend certain religious groups is especially likely to yield pressure for greater enforcement (e.g., from religious activist groups), and is especially likely to be obviously motivated by someone's religion. It's thus especially likely that someone who is blaspheming and who violates some other law -- even, for instance, who merely recklessly inflicts more than $250 in damage on a bystander's property in the course of a blasphemous act -- will face vastly increased punishment.


The Perils of Hate Crime Laws:

Imagine five situations:

  1. Stanislav Shmulevich steals a Koran from Pace University, puts it in the toilet, and covers it with feces. He is prosecuted not just for the misdemeanor of damaging a book (which he seems to be guilty of), but for a felony hate crime, because he is acting "because of a belief ... regarding the ... religion ... of a person," there some Muslims with whom he had been having an argument — perhaps he thought that the Muslims were bad because of their Islam, and he wanted to blaspheme against Islam as a way of getting back at them. (Note that he did not choose his victim because of the victim's religion; the victim of the property damage is Pace University.)

  2. Shawn Eichman comes to New York to burn another flag, which he owns; but he burns it "recklessly" in a way that causes over $250 of damage to a bystander's property (which is to say with the awareness that his burning poses) a substantial and unjustifiable risk to such property). He is prosecuted not just for the misdemeanor of recklessly damaging property, but for a felony hate crime, because he is acting "because of a belief ... regarding the ... race, ... national origin, ... or religion ... of a person." Say, for instance, he was burning the flag to protest the lack of enough blacks or Hispanics in various parts of the administration (race), to protest what he sees as various Republican leaders' wrongheaded and excessive religiosity (religion), or to protest what he sees as the misconduct of American troops (assume that New York courts interpret "national origin" to include American citizenship or participation in American institutions).

    [UPDATE: On reflection, I realize that it's not clear whether the hate crimes law would cover this, since it requires that one "intentionally commit the acts." It may be that intentionally burning a flag, intentionally doing so because of someone's attributes, and thereby recklessly damaging property is enough; but it may be that the law would apply only to intentionally burning a flag and thereby intentionally damaging property. Assume, though, that the former interpretation is adopted; or, if you prefer to assume that New York courts will adoopt the latter interpretation, then assume that the flagburner took the flag from a government building, or borrowed it from a friend or family member without getting permission to burn it, either of which would make the burning into fully intentional fourth-degree criminal mischief.]

  3. An artist creates a display with a cross covered in human excrement, to protest what he sees as the historical crimes of Christianity (or, if you prefer, the Catholic Church's actions with regard to child molestation by priests). However, he does this on the premises of a public housing project, and refuses to leave when the public housing project authorities tell him to do so. Such failure to leave is normally a third-degree criminal trespass, which is a class B misdemeanor. But the artist is prosecuted for a class A misdemeanor because he committed the acts because of a belief regarding the religion of various Christians or Catholics against whom he is protesting.

  4. A minister comes to the home of a local Episcopal Church leader to remonstrate against him because of the Church's willingness to approve gay bishops. The leader at first grudgingly agrees to let the minister enter and discuss the matter, but eventually demands that the minister leave. The minister refuses to leave, which would normally make him guilty of class A misdemeanor second-degree criminal trespass — but because the minister was motivated by a belief regarding the sexual orientation of the confirmed bishops, the minister is prosecuted for a felony hate crime.

  5. Finally, assume that New York law is revised to cover not just the offenses that are now specified in the hate crime statute, but also any other crime, such as blocking traffic and the like. This means that anyone who acts illegally in the course of a protest motivated by someone's race, religion, religious practice, sexual orientation, and the like — for instance, steps out on the street in a way that blocks traffic, or throws papers on the ground in violation of a littering ordinance — would be eligible for extra punishment because of why he was protesting.

The first scenario is real; the others are hypothetical; but it seems to me that they are hard to distinguish from each other. What should we think about them?

It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It's right to punish them for such actions. But it seems to me that they shouldn't be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.

Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime's target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes: Even such speakers may face substantial extra punishment if they recklessly — or, if the law is broadened, even grossly negligently — damage some property in the course of their speech (see example 2 above, though you can similarly adapt the other examples), refuse in the heat of the moment to comply with a command to leave property (see examples 3 and 4), or do something that may be misinterpreted as intentional misconduct.

In Wisconsin v. Mitchell (1993), the Court did indeed uphold a law that increased the punishment of criminals who "[i]ntentionally select[ed] the person against whom the crime ... [was] committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." And indeed, given that even legal conduct (e.g., firing someone, refusing to rent to someone, and so on) can be made civilly actionable when it is done because of the target's race, religion, and the like, I think criminal conduct can be punished more when the target is selected because of the target's attributes.

But it doesn't necessarily follow that the law should be free to increase the punishment not just because the criminal was discriminating in choice of victims, but because the criminal was hostile to some other person based on that person's religion, religious practice, sexual orientation, or race — which often means that the criminal simply disapproved of some group, even when the target of the crime was not discriminatorily chosen. Nor does it follow that the law should be free to increase the punishment because the criminal was trying to insult some group.

And even if the First Amendment does give the government a free hand in enhancing punishments on such bases — which Mitchell could be read as approving, though I don't think it has to be so read — the Shmulevich case and the other examples are good reasons to resist such laws. The criminal should be punished for committing a crime. But he shouldn't be punished any extra because his intentionally damaging a book, recklessly damaging someone's property, or trespassing was motivated by his hostility to Islam, fundamentalist Christianity, Scientology, or whatever else.


The Shmulevich Case -- Facts and New York Law, as I Can Best Figure Them Out:

Stanislav Shmulevich was arrested Friday, apparently for stealing two Korans (in two separate incidents) from a Pace University "meditation room," throwing them into Pace toilets, and defecating on one of them. I'll have more on the constitutional and policy questions raised by this arrest in an upcoming post. Here I'd like to just summarize the facts and the relevant New York criminal law, as best I can figure them out.

If the factual reports are true, then Shmulevich is indeed guilty of theft, and may be guilty of some offense related to risking damage to the toilets (though I'm skeptical on that latter count, unless he was deliberately attempting to damage the toilets). But apparently he's risking a much more serious punishment, because the book he stole was the Koran, and presumably because he is seen as being motivated by hostility to Islam. From the AP story cited above:

Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief and aggravated harassment, both hate crimes, police said....

Muslim activists had called on Pace University to crack down on hate crimes after the [Koran-in-toilet] incidents [which happened months ago]. As a result, the university said it would offer sensitivity training to its students.

The school was accused by Muslim students of not taking the incident seriously enough at first. Pace classified the first desecration of the holy book as an act of vandalism, but university officials later reversed themselves and referred the incident to the New York Police Department's hate crimes unit.

The incidents came amid a spate of vandalism cases with religious or racial overtones at the school. In an earlier incident on Sept. 21, the school reported another copy of the Quran was found in a library toilet, and in October someone scrawled racial slurs on a student's car at the Westchester County satellite campus and on a bathroom wall at the campus in lower Manhattan....

Ibrahim Hooper, a spokesman for the national CAIR office in Washington, D.C., ... said CAIR decided to speak out about the Pace incidents because Muslim students are impacted by the creation of what could be viewed as a hostile campus environment.

Now the only DA's complaint that I've seen in this case deals only with the criminal mischief charge, and not with the aggravated harassment charge; so there might be something I'm missing as a result. But here's my best sense of the matter:

1. Because Shmulevich is being accused of "hate crimes," he is facing punishment that's "one category higher than" it would normally have been. This means, for instance, that if stealing and destroying a book and risking damage to a toilet is a misdemeanor, the "hate crime" version of this is a class E felony — potentially a pretty substantial sentence enhancement.

2. "[H]ate crime" is defined by New York law as a crime in which the offender

(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or

(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

Subsection (a) — essentially discriminatory choosing the target of a crime — is what most hate crime prosecutions seem to be about. It's also the sort of provision that the Supreme Court unanimously upheld against First Amendment challenge in Wisconsin v. Mitchell (1993). But it's pretty clear that Shmulevich isn't guilty under this provision, because his victim was Pace University, which he didn't choose because of its religious affiliation. It appears that if Shmulevich is guilty, he's guilty under subsection (b), presumably because he committed the crime against Pace University because of "a belief or perception regarding the ... religion ... of a person" other than Pace — according to the complaint, because "he committed the acts out of anger toward a group of Muslim students with whom he had had a recent disagreement."

3. So that's the hate crimes enhancement provision; what about the underlying crimes? Here's the New York fourth-degree criminal mischief provision, which is charged in the complaint, and which indeed seems like the only relevant criminal mischief provision: "A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he ... [i]ntentionally damages property of another person" — presumably Pace's Korans. (It sounds like he didn't damage, or intentionally attempt to damage, the toilets, though he may have recklessly created a situation in which they might have ended up damaged.) So it sounds like stealing and damaging a book is a class A misdemeanor, while stealing and damaging a book because of someone's (not the victim's, but someone's) religion is a class E felony.

But when it comes to aggravated harassment, I can't see what the charge might be, and perhaps no such charge has been filed (despite what the AP story says), given that the only complaint I've seen mentions only criminal mischief. Here is what the aggravated harassment statutes say, in relevant part:

A person is guilty of aggravated harassment in the second degree [a class A misdemeanor] when, with intent to harass, annoy, threaten or alarm another person, he or she:
1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication, or
3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of the race, color, religion or national origin of such person; or
4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree ... within the preceding ten years. [Harassment in the first degree is in turn defined as "intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."]

A person is guilty of aggravated harassment in the first degree [a class E felony] when with intent to harass, annoy, threaten or alarm another person, because of the race, color, religion or national origin of such person he:
1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars ....

These items all seem inapplicable here. There is no telephone, telegraph, or written communication. (I suppose throwing a Koran in the toilet is a form of communication, but not what one would call a "written" one.) There is no telephone call. There is no physical contact with another person, or attempted or threatened physical contact. There is no repeated following or repeated asks that place a person in reasonable fear of physical injury (even if Shmulevich has some past conviction for such a crime, which I've seen no evidence of). And there's no damage to premises primarily used for religious purposes, since "premises" means a place (see, e.g., Black's Law Dictionary); the damage here was to a religious book, not a religious premises.

So that's all I've got as to the facts and the New York law; more in an upcoming post, as promised, on the constitutional and policy questions. Allahpundit at Hot Air has more.

Related Posts (on one page):

  1. A Bit of Perspective on the Use of Feces and Toilets in Protests:
  2. The Perils of Hate Crime Laws:
  3. The Shmulevich Case -- Facts and New York Law, as I Can Best Figure Them Out:

The Simpsons:

Like many of you, I suspect, I spent a few hours this weekend at the theaters watching the Simpsons movie. I thought A.O Scott, in his review in the NY Times, got it just about right -- it's not (and not trying to be) some sort of grand Simpsons apotheosis, but rather just a good Simpsons episode, stretched out some. I suppose that means that people who don't like the TV show very much (and I know there are such people out there) won't find the movie terribly interesting, but for those (like me) who do, it's a real treat. PG-13 because, as the official advisory has it, there's "irreverent humor throughout." Damn straight -- the Simpsons is so subversive (and has always been) that we sometimes take it for granted, but we'll miss its attitude when it's gone. Authority is bullshit. You could line up every anarchist and libertarian tract and treatise ever written and they won't, in the aggregate, have a fraction of the impact the Simpsons has had in conveying this important message.


Captain Copyright Has Hung Up His Cape:

Last year, I blogged about Captain Copyright, a Canadian site aimed at conveying a pro-copyright message to children, and at being used by schoolteachers for that purpose. I faulted the site for having a "legal notice" that seemed to misrepresent copyright law.

Reader Bill Poser, who found the Captain Copyright site through the earlier post, now reports that Captain Copyright has given up the fight. The site now contains the following text:

In August 2006, we took the Captain Copyright website offline so that we could revise its content in response to the criticisms the site had received. We worked extensively on revising the original lessons and we commissioned someone with expertise on the creation of educational materials to prepare new lessons on the Creative Commons, fair dealing and the public domain. We also sought the assistance of an advisory panel of educators and copyright experts with a range of perspectives on copyright, and every lesson was submitted to them for rigorous review. We then incorporated their revisions to the lessons so that they could be thoroughly teacher-tested.

Despite the significant progress we made on addressing the concerns raised about the original Captain Copyright initiative, as well as the positive feedback and requests for literally hundreds of lesson kits from teachers and librarians, we have come to the conclusion that the current climate around copyright issues will not allow a project like this one to be successful. It is difficult for organizations to reach agreement on copyright issues at this time and we know that, in the face of continuing opposition, the materials will not be used in the classroom. Under these circumstances there is no point in our continuing to work on this project.

We began this project because teachers told us that copyright had become too much a part of their students’ daily lives for it not to be taught in the classroom, and they told us they needed a teaching tool to help them do it. We still believe that creating such a tool is important, but we also now believe that no single organization can take the lead on such an initiative. We truly hope that there will come a time when the copyright community -– including educators, librarians and copyright collectives — can work together to provide a unbiased teaching tool that provides teachers and students with a balanced view of copyright.

UPDATE: Michael Geist also blogged about this earlier this year.


[Ward Farnsworth (guest-blogging), July 30, 2007 at 11:35am] Trackbacks
Don't Shoot Me, I'm Only the Piano Player.

Eugene has been kind enough to invite me to blog a bit about a book I’ve written called The Legal Analyst. In the coming days I’ll write about some of the ideas in the book. Today I’ll say something about the rationale for the project (and at the end of this entry I’ll offer a historical comment about the legal implications of selling a piano to a house of ill fame. So there will be something for everyone.).

The book is a kind of user's manual for ideas about the law. The ideas aren’t doctrinal categories like contract and tort. They’re tools for analysis that cut across categories like contract and tort. A lot of the chapters involve economic principles, but many others don’t; there’s a good bit of cognitive psychology, political science, jurisprudence, etc. The result is meant to be useful to lots of people: law students, lawyers, scholars, and laymen with an interest in the legal system (perhaps not a bad description of the readership of this blog).

The style of teaching in the book somewhat resembles the approach of my chess website and books — lots of examples meant to build the reader’s ability to recognize patterns. But since most people aren’t as interested in the intersection between law and chess as I am, I won’t linger on the point!

Let me instead pursue the theory behind the book with a question. How should law school be organized? Isn’t it odd that the first-year curriculum is the same almost everyplace, and that it’s structured as it is? A couple of schools have started to experiment with minor innovation, but there still isn’t much of it. Here’s what I might suggest: a year spent just on analytical methods, another year spent entirely on various forms of rhetoric, and then one year on substantive legal doctrines (some of which would also have been taught along the way during the other two years). Not that every school should do this, but shouldn’t someplace do it? Perhaps you have other ideas of your own. I see no reason to assume that one size fits all. Maybe it’s a stag hunt, which is an idea discussed in the book that I’ll talk about later in the week. Or a case of path dependence.

I said a school might usefully spend the first year on analytical methods. That’s the part of my suggestion that relates to the book. There are, in general, two sorts of things one learns at a law school. You learn lots of legal rules — principles that tell you whether a contract is valid, how to tell murder from manslaughter, etc. And you learn how to use tools for thinking about legal problems — ideas such as the prisoner’s dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias, and so on. Those tools for thought are the more interesting and useful part of a legal education, and the greater share of the fun of it, at least if they're taught properly.

Law school courses could be organized around those tools rather than legal subjects, so that in the first year everyone would take a course on the prisoner’s dilemma or on game theory, a little course on rules and standards, a course on cognitive psychology, and so forth, and in each of those classes one would learn, along the way, a bit about contract law, a bit about tort law, etc. But instead law school is carved up the other way around: by legal topics, not by tools. Maybe there are good reasons for teaching law this way, but a side effect is that most students never get that hang of the tools that ought to be the best payoff of the enterprise. They just hear about them in passing. Maybe any given idea gets mentioned by a teacher sometime, or maybe not; maybe it comes up again later, or maybe it doesn’t.

Anyhow, whether or not it makes sense to carve up legal education by methods rather than substantive subjects, I do think there’s at least a place for a book that does this. I hope so, at any rate, because that’s what I’ve tried to write.

Another problem the book means to address has to do with the gigantic volume of legal scholarship churned out every year by law professors. The one percent of it that would be of most interest to a student or to a generalist lawyer or law professor — the portion that amounts to a helpful analytical tool, or to a charming illustration of the use of one — is not so easily found. I’ve tried to round up as much of that one percent as I can (I’ve left out a lot of it, of course), and to explain it as accessibly as possible.

In some cases I’ve enlisted the help of other professors who already had written outstanding explanations of the issues I wanted to cover. The chapter on slippery slopes, for example, is co-authored with Eugene, and really is nothing but an adaptation of his scholarly work on the subject. I’m very grateful to him and to my other co-authors for helping out, and hope that in return I may bring their ideas to some people who might not have heard about them otherwise.

Tomorrow I’ll start talking about some of the ideas in the book, but enough about it for today. As long as I’m here, though, I’ll venture a comment on an issue Eugene raised last week: tort and criminal liability for supplying someone with the means to commit a crime. Eugene didn’t mention another interesting angle on the problem, namely the contractual side. A contract to help someone commit a crime is unenforceable. A very classic example is the old English case of Appleton v. Campbell, [1826] 2 C & P 347. It mustn’t be paraphrased; only direct quotation will do:

Assumpsit for board and lodging. The defence was, that the defendant was an immodest woman, and used the lodging for the purposes of prostitution, to the knowledge of the plaintiff.

To substantiate this, another female, who lodged in the house, and who was called for the plaintiff, proved, on her cross-examination, that the defendant was in the habit of receiving male visitors, and that the plaintiff used sometimes to open the door for them; and that the plaintiff told her, that the defendant was an immodest woman.

Abbott, C.J. — If a person lets a lodging to a woman, to enable her to consort with the other sex, and for the purposes of prostitution, he cannot recover for the lodging so supplied. But if the defendant had her lodgings there, and received her visitors elsewhere, the plaintiff may recover, although she be a woman of the town, because persons of that description must have a place to lay their heads; but if this place was used for immoral purposes, the plaintiff cannot recover.

There is a distinctively American version of this problem, too, from when the world was young: someone sells a piano to a house of ill fame, and the proprietor of the establishment defaults on the obligation to pay for it. Is the contract enforceable? The case raises nice questions about the relationship between the piano playing in a brothel and the other activities carried out there. (Not long ago Robert Hughes said, “One gets tired of the role critics are supposed to have in this culture: It's like being the piano player in a whorehouse; you don't have any control over the action going on upstairs.”)

This precise issue doesn’t generate much litigation now, probably (I claim no expertise) because no modern brothel can be bothered to hire a piano player, or for that matter a player piano — unless, I suppose, it’s going for retro charm, sort of like Camden Yards. But once upon a time there was a fun if minor division of authority on this little problem of pianos. See Hollenberg Music Co. v. Berry, 106 S.W. 1172 (Ark. 1907); Colburn v. Coburn, 211 S.W. 248 (Tex. Civ. App. 1919).


Sunday, July 29, 2007

Early Monday Asian Markets Mostly Down.--

As I write, it's still Sunday night in the US, but it's Monday morning in Asia.

Asian stock market trading so far:

^N225 Nikkei 225: DOWN (1.00%)
^SSEC Shanghai Composite: UP (1.95%)
^STI Straits Times: UP (0.21%)
^AORD All Ordinaries, DOWN: (0.43%)
^HSI Hang Seng: DOWN (0.19%)
^JKSE Jakarta Composite: DOWN (0.01%)
^NZ50 NZSE 50: DOWN (0.37%)
^KS11 Seoul Composite: DOWN (0.20%)
^TWII Taiwan Weighted: DOWN (1.10%)

UPDATE: At 1AM Eastern Time on Monday morning, 6 of the open Asian markets are down, while 4 are now up.

2D UPDATE: Monday Morning, 9:50AM ET. Eight of 11 Asian markets ended Monday UP. So far in Europe, 9 of 11 open markets are also UP. So far in the US, both the Dow and the S&P 500 are marginally UP, though expect a lot of volatility in either direction.


Off to Poland:

I'm off to Poland for a few days to do a presentation at the IVR World Congress on Philosophy of Law and Social Philosophy in Cracow. I will be talking about political ignorance, "voting with your feet," and their implications for democracy on the Special Panel on Libertarianism organized by Japanese legal academic Susumu Morimura. The panel will be held on Thursday, August 2, at 3 PM, in the Larisch Palace at the Jagiellonian University (complete schedule of workshops here, with my panel on pg. 58). If you are attending the conference or (less likely) are a VC reader based in Cracow, feel free to come to the panel, which should be extremely interesting.

I also look forward to seeing Poland, which was an inspiration to so many of us during the struggle against communism in the 1980s, and a generally successful example of post-communist transition since then.


Uncertainty After Japanese Parliamentary Elections

More political turmoil in Japan after Sunday's Elections (via Reuters/CNN):

Hawkish Japanese Prime Minister Shinzo Abe vowed to stay in his post despite a crushing defeat for his ruling camp in an upper house election, but policy gridlock loomed and Abe's grip on his job was still uncertain.

Voters outraged at a string of government scandals and gaffes and government bungling of pension records stripped Abe's coalition of its upper house majority in his first big electoral test since taking office 10 months ago.

Abe's bloc will not be ousted from government by the upper house defeat, since it has a huge majority in the more powerful lower chamber, but he was expected to reshuffle his cabinet.

"I am determined to carry out my promises although the situation is severe," Abe said late on Sunday, after acknowledging that he was responsible for the huge loss. "We need to restore the people's trust in the country and the government," a weary and drawn-looking Abe told reporters.

Abe still faces pressure to quit, although a lack of suitable successors inside his party could help him survive for now. . . .

The LDP and its partner, New Komeito, won 46 seats compared to 60 for the Democrats. The coalition had needed 64 to keep their majority in the upper house, where half of the 242 seats were up for grabs. . . .

Critics said Abe was out of touch with voters more concerned with bread-and-butter issues such as pensions and health care.

Democratic Party leader Ichiro Ozawa, a pugnacious veteran who bolted from the LDP 14 years ago, had pledged to shrink income gaps, protect the weak and help farmers -- a group that had long supported the LDP.

Ozawa has vowed to make an upper house win a step towards an early general election, but media warned that his party's public image could suffer if it takes too obstructionist a stance. . . .

Ozawa -- who suffers heart problems -- failed to put in a public appearance on Sunday while others celebrated a stunning turnaround in the party's fortunes.

Party officials said Ozawa had decided to rest to recover from the fatigue of campaigning, but his absence has cast doubts over his ability to keep leading his often fractious party.

A weakened ruling bloc is expected to try to bolster its hand by wooing independents and conservatives in the Democratic Party -- a mixed bag of former LDP lawmakers, ex-socialists and young conservatives, some of whom are seen as ripe for poaching.


Lott v. Levitt Settles -- Somewhat:

The Chronicle of Higher Education reports on a partial settlement in John Lott's defamation settlement against Steven Levitt.

In documents filed today in federal court, the two parties outlined a settlement that requires Mr. Levitt, who is a professor of economics at the University of Chicago and a co-author of the best-selling book Freakonomics: A Rogue Economist Explains the Hidden Side of Everything, to send a letter of clarification to John B. McCall, a retired economist in Texas.

Mr. Lott’s lawsuit alleges that Mr. Levitt defamed him in a 2005 e-mail message to Mr. McCall . . .

The letter of clarification, which was included in today’s filing, offers a doozy of a concession. In his 2005 message, Mr. Levitt told Mr. McCall that “it was not a peer-refereed edition of the Journal.” But in his letter of clarification, Mr. Levitt writes: “I acknowledge that the articles that were published in the conference issue were reviewed by referees engaged by the editors of the JLE. In fact, I was one of the peer referees.”

Mr. Levitt’s letter also concedes that he had been invited to present a paper at the 1999 conference. (He did not do so.) That admission undermines his e-mail message’s statement that Mr. Lott had “put in only work that supported him.”

The provisional settlement is simple: Beyond the letter of clarification, the agreement does not require any formal apology from Mr. Levitt, and no money will change hands.

But the settlement also explicitly allows Mr. Lott to appeal the court’s January dismissal of a major portion of his lawsuit.


Why People Get Much Worse Government than they Deserve:

In reply to my recent post on the shortcomings of Vladimir Putin's repressive regime in Russia, one commenter suggests that the Russian people are "getting precisely the kind of government they deserve." This is a very common point of view: that people who live under repressive or corrupt governments are in some sense responsible for their own fate. After all, why don't they act to improve the regime or replace it with a different one? My purpose in this post is not to attack an individual commenter, but to point out some major flaws in the widespread view underlying the saying that "people get the government they deserve." The problem is not just that the saying oversimplifies; all sayings do that. The problem is that it is fundamentally misleading. This is one case where liberal strictures against "blaming the victim" should be taken to heart.

I. The Impact of Repression.

If it has a relatively loyal army and secret police, a highly repressive government can survive for decades even if the vast majority of its subjects disapprove of it. Indeed, as economist Timur Kuran explains in an excellent book, such governments can often prevent both their people and outside observers from even realizing the full extent of the regime's unpopularity. Repression can make it dangerous for ordinary people to express their antigovernment views, much less act on them. As Kuran shows, such dynamics enabled communist governments in Russia and elsewhere to persist for many years despite widespread popular distaste for them. Only the regime's own efforts at partial liberalization finally gave the people an opportunity to overthrow it. Some communist regimes, such as Cuba and North Korea, persist to this day because their leaders wisely (from their point of view) chose not to imitate Glasnost and Perestroika.

To be sure, even a totalitarian state would fall apart if all or most of the population ceased to cooperate with it simultaneously. However, organizing such concerted resistance is a classic collective action problem, in which each individual has strong and understandable incentives to free ride on the efforts of others. Not to mention the fact that efforts to organize against the govenrment are likely to be ruthlessly suppressed and punished by the authorities. In light of these facts, I think it is wrong to assume that people living under a repressive regime necessarily approve of its policies. It is even more wrong to blame them for their supposed cowardice in failing to engage in active resistance. Given the dire risks to dissidents and their families, it is understandable if many are unwilling to take them. How many of us would be so brave if we were in their place?

II. Bad Government and Cultural Values.

Perhaps, however, the saying that "people get the government they deserve" is true in the weaker sense that corrupt or repressive regimes in some sense reflect the cultural values of the societies they rule over. Even if the people disapprove of the regime, their culture may be responsible for keeping it in place.

There is, of course, some truth to this, but far less than is often believed. Often, institutions matter far more than cultural values in causing repression and corruption. East and West Germany had similar cultures, and the same is true of North and South Korea. It was political institutions, not cultural values, that turned two of these countries into oppressive nightmares, and the two others into relatively successful democracies. Similarly, the large number of Russian immigrants living in the West or in Israel do not engage in nearly as much crime and corruption as Russians living in Russia, and are much more willing to criticize their government. Again, the difference is caused more by institutions than by cultural values. On average, Russians living in the West are not significantly better people than Russians living in Russia and do not have fundamentally different values. Rather, they face a different structure of incentives created by differing political institutions.

To some extent, of course, repressive societies often do have differing cultural values from freer ones. Yet these differences may be as much the result of repression as the cause of it. Living in an oppressive society reduces trust, "normalizes" corruption, and habituates people to government domination of the economy and civil society. In addition, repressive regimes often engage in extensive indoctrination of their subjects, while suppressing opposing points of view. Even in a society like East Germany, which existed in close proximity to to a freer society with a similar ethnic background, indoctrination had a major impact. People may not buy the government line all the way, but it is hard to avoid being influenced by it when it is constantly drummed into you and is the only viewpoint that can be publicly expressed. If all of this tends to warp cultural values over time, that is not surprising and is not primarily the fault of the people themselves.

Cultural values do have at least some impact. But it is easy to overstate their effects, while downplaying the ways in which political institutions often matter much more and indeed alter the culture itself.

Finally, I do acknowledge that the saying that "people get the government they deserve" has somewhat greater validity in democracies than in authoritarian states. Even here, however, it misleads at least as much as it enlightens. If time permits, I will take up the case of democracy in a follow-up post.

UPDATE: Various commenters note that Putin came to power in a (relatively) free election and is popular with the majority of Russians. Both points are true, and they do make Putin different from, say, Lenin, who took power despite the opposition of the vast majority of the Russian population. But neither point necessarily undermines my broader argument. After seizing power, Putin soon began to repress political opponents and shut down opposition media, making it very difficult for effective opposition to his policies to arise in the future. Moreover, the authoritarian and nationalistic political instincts that led many Russians to support Putin's initial ascension to power were conditioned by decades of Soviet indoctrination, and before that by the repressive policies of the czars. The Russian "values" that help maintain support for Putin are as much the product of repression as they are its cause.

UPDATE #2: Other commenters note that my comparison between Russian immigrants abroad and Russians in Russia is flawed because the former are in part self-selected for their distaste for Russian authoritarianism and totalitarianism. This is true, and I decided not to consider this issue in the original post only because of space constraints (in retrospect, a mistake). I don't think it completely invalidates the comparison, however. While it is fair to say that many Russian emigrants are indeed more liberal than those who remained at home, there are some groups of emigrants who can't be characterized that way. The many nobles and right-wing nationalists who fled to the West after the Bolshevik Revolution (along with many liberals and socialists) certainly did not lack for authoritarian instincts. Yet they and their descendants have behaved far differently in the West than they did in Russia. The political institutions of the West had a far bigger impact on their behavior than the dysfunctional cultural values that they brought with them.

Related Posts (on one page):

  1. Why People Get Much Worse Government than they Deserve:
  2. Gary Kasparov on Putin's Russia and the Godfather:

Recess Appointments to the Supreme Court:

What would happen if there was another Supreme Court vacancy before January 2009 and Senate Democrats followed Senator Schumer's counsel and successfully blocked the confirmation of another Bush nominee? One possibility is that President Bush would make a recess appointment. Such action is hardly unprecedented. According to C-Span, there have been 15 recess appointments to the Supreme Court. The first was John Rutledge, who was given a recess appointment to be Chief Justice by President George Washington in 1795. As noted in this report, President Eisenhower made three recess appointments to the Court — Earl Warren, William Brennan, and Potter Stewart. Brennan, in particular, was placed on the Court in the midst of the 1956 Presidential campaign, arguably for political reasons.

I am not a fan of recess appointments to Article III courts. Nor am I a fan of Senate obstruction of judicial nominees. Whichever party wins the White House in 2008, I hope to see a de-escalation of judicial confirmation fights after January 2009, if not before. Unfortunately, remarks like Senator Schumer's on Friday — and the likely GOP response — do not bode well in this regard, and we may actually see another recess appointment to the nation's highest court.

UPDATE: Given some of the comments, I thought it was worth posting a link to this summary of my views on judicial nomination fights.


Bush Appointees Blocked Health Report Release:

Today's Washington Post reports that political appointees in the Bush Administration blocked the publication of a 2006 Surgeon General's report on global health. As the Post reports, in recent Congressional testimony Carmona cited the report's "suppression as an example of the Bush administration's frequent efforts during his tenure to give scientific documents a political twist." This episode is part of a broader narrative that the Bush Administration systematically distorts and politicizes science for ideological reasons. The problem is that the facts of this episode do not support Carmona's charge nor the larger narrative.

The draft report at issue here was not a purely scientific or medical document — not even close. The report, The Surgeon's General Call to Action on Global Health, is as much a policy document as anything else, complete with specific policy recommendations on a range of issues. Among other things, the report calls for ratification of the Framework Convention on Tobacco Control, and the acceptance of certain international health regulations. Whether or not these are sensible health policy prescriptions or not, they reflect normative value judgments, not scientific judgments.

My point here is not to defend the Bush Administration, nor is it to suggest that the report should have been withheld. Rather it is that many cases of "science politicization" are in fact policy disputes. The Post's subhead reads "Global Health Draft In 2006 Rejected for Not Being Political," yet the report itself was an inherently political document. The dispute between Carmona and Bush officials was about the extent to which a policy report should reflect, endorse, or promote Bush Administration policy. It was not an instance of politics or ideology trumping science. If the Administration is to be criticized for blocking the release of The Surgeon's General Call to Action on Global Health, it should be criticized on policy grounds — for opposing particular public health measures and refusing to support others — rather than for allegedly censoring scientific expertise.

UPDATE: Here is a good example of how this story is (wrongly) placed in the traditional narrative of science politicization. Contrary to Mark Hoofnagle's claim, this episode has little to do with "scientific integrity." Nonetheless, he terms it "despicable."

Related Posts (on one page):

  1. Bush Appointees Blocked Health Report Release:
  2. Richard Carmona's Political Science:
  3. Did White House Censor Surgeons General?

Good News From Iraq:

I just got home from my local sports bar, where I watched the Iraqis win the championship over Saudi Arabia in the Asia Cup (sort of like the world cup, but limited to "Asian" teams [including Australia and most of the Middle East). I've taken a lot of stick from people on this blog over the years for suggesting that things like this are as important, and probably more important, in the long run, for Iraqi "nation-bulding" than most of what we see and hear on the news. [See some prior postings are here and here]. this is a big day for Iraq -- hopefully, without the violence that accompanied their semifinal win. Maybe a step toward Iraq joining the community of nations in a normal way -- but certainly something that, for Iraqis, will be remembered for a long time.


Was the Gonzales/Comey Hospital Confrontation About the TSP or the NSA Call Records Program (Or Both)?: Today's New York Times has an intriguing but frustratingly unclear story adding some details about the now-famous hospital confrontation over whether the recovering John Ashcorft would approve an NSA surveillance program despite Acting-AG James Comey's conclusion that the program wasn't legal. A few comments:

  (1) The story says that the dispute "involved computer searches through massive electronic databases," but that in itself is pretty useless. If information is collected and then analyzed, and then the fruits are used, there will always be a stage involving "computer searches through massive electronic databases." Heck, Google queries are "computer searches through massive electronic databases." The question is, what information was in the database? And what did the government do with the fruits of the searches?

  (2) It sounds like the NSA Call Records program and the Terrorist Surveillance Program were designed to work together. The government would get the non-content records, run searches through them for patterns, and then conclude that certain patterns were sufficient to suggest that some people were bad guys and that the contents of their communications should be intercepted. The starting point would be the call records program, the end point the TSP. I gather the question of whether Gonzales's testimony was misleading concerns where one program ends and the other begins.

  (3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." But we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don't know which one is particularly likely to be right.

  (4) I'm puzzled by the newspaper's claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn't in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn't relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I'm not sure.

  Marty Lederman has more thoughts at Balkinization.

We're Number One!

At Concurring Opinions, Dave Hoffman has posted an update of the law blog ranking project initiated by Roger Alford at Opinio Juris. It ranks law-related blogs to which law professors contribute by traffic, and somehow we're at the top of the list. I think I speak for all of the Conspirators when I say we appreciate your readership, comments and feedback, and hope that you continue to come back. I also encourage VC readers to check out some of the other blogs on the list. There are lots of good lawprof bloggers out there, so check 'em out.


Sunday Song Lyric: Given how long I've been blogging Sunday Song Lyrics, it seems odd I've never posted anything by namesake, Richard Adler. We're not related (as far as I know), but I can't think of any other famous songwriters with my name. Working with Jerry Ross, Adler wrote "The Pajama Game" and "Damn Yankees" (for which he won Tonys), and classic songs like "You Gotta Have Heart," and "Whatever Lola Wants."

Something interesting I learned reading his entry in the Songwriters Hall of Fame, is that he was a "White House Consultant for the Arts" during the Kennedy and Johnson Administrations. He also did work for the Kennedy Center.

One of Adler's most famous songs, written with Ross and popularized by Tony Bennett, is "Rags to Riches." Here's how it begins:

I know I'd go from rags to riches
If you would only say you care
And though my pocket may be empty
I'd be a millionaire.

My clothes may still be torn and tattered
But in my heart I'd be a king
Your love is all that ever mattered
It's everything.

Gary Kasparov on Putin's Russia and the Godfather:

In this Wall Street Journal op ed, former chess world champion and Russian opposition leader Gary Kasparov analogizes Vladimir Putin's Russia to The Godfather:

Mr. Putin's government is unique in history. This Kremlin is part oligarchy, with a small, tightly connected gang of wealthy rulers. It is partly a feudal system, broken down into semi-autonomous fiefdoms in which payments are collected from the serfs, who have no rights. Over this there is a democratic coat of paint, just thick enough to gain entry into the G-8 and keep the oligarchy's money safe in Western banks.

But if you really wish to understand the Putin regime in depth, I can recommend some reading. . . [G]o directly to the fiction department and take home everything you can find by Mario Puzo. If you are in a real hurry to become an expert on the Russian government, you may prefer the DVD section, where you can find Mr. Puzo's works on film. "The Godfather" trilogy is a good place to start, but do not leave out "The Last Don," "Omerta" and "The Sicilian."

The web of betrayals, the secrecy, the blurred lines between what is business, what is government, and what is criminal--it's all there in Mr. Puzo's books. A historian looks at the Kremlin today and sees elements of Mussolini's "corporate state," Latin American juntas and Mexico's pseudo-democratic PRI machine. A Puzo fan sees the Putin government more accurately: the strict hierarchy, the extortion, the intimidation, the code of secrecy and, above all, the mandate to keep the revenue flowing. In other words, a mafia.

I don't fully agree with Kasparov's assessment. Putin's regime is not "unique in history." To the contrary, predatory regimes that combine corruption, repression, and skullduggery are all too common in the developing world. As I have noted in an earlier post, one of the main themes of The Godfather is that all government has a great deal in common with organized crime. Russia's government is more Mafia-like than those of the West, but not more so than many other regimes elsewhere in the world. And as Kasparov would probably agree, even a Mafia state is still a major improvement over the mass murdering totalitarianism of communism.

The tragedy of Russia is not that its current government is uniquely bad. It is that the country had the human and material resources to do so much better, as the post-communist states of Eastern Europe and the Baltics have done. The tragedy for the world is that this particular Mafia state has large quantities of oil, gas, and nuclear weapons.

Related Posts (on one page):

  1. Why People Get Much Worse Government than they Deserve:
  2. Gary Kasparov on Putin's Russia and the Godfather: