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Saturday, February 9, 2008

Women's Rights Brief in DC v. Heller:

A brief on behalf of 126 women state legislators, and several academics, presents a women's rights perspective on the DC ban on handguns and on home self-defense with any firearm.

Part I points out that, compared to the past, women are more likely to live alone. Young women are less likely to move straight from their father's house to their husband's house, but may instead live on their own. A large number of elderly women live alone, because they have outlived their mates, or for other reasons. Accordingly, the paternalistic assumption that all women are under the protection of a man has no validity today.

Part II notes the prevalence of violence against women, particularly domestic violence. (This point is also made at great length in a pro-prohibition amicus filed on behalf of many state domestic violence groups). The brief quotes Andrea Dworkin discussed the battered woman: "She has a constitutional right to a gun and a legal right to kill if she believes she’s going to be killed. And a batterer's repeated assaults should lawfully be taken as intent to kill." Other feminist advocates of women's empowerment for self-defense are cited and quoted too.

Section B of Part II summarizes the relevant social science evidence, showing that armed self-defense by women is effective. Although the domestic violence groups cited studies showing that guns caused an increased risk of homicide to a domestic violence victim, the brief points out that the research shows an increased risk if an abuser has a gun. The data show no statistically significant risk for gun ownershp by victims who lives apart from the abuser and who has her own gun.

The remainder of Part II points out that under cases such as Castle Rock and Warren v. D.C. women are victimized because of law enforcement failure to act against known threats (or even women who rely on false 911 promises that help is on the way) have no legal remedy.

Part III points out that because most women have less upper body strength than men, a handgun is superior to a long gun for self-defense. Also:

Advocates of women’s reproductive choice commonly argue that pregnancy disproportionately affects women due to their innate gender-based characteristics. Thus, they argue, courts failing to recognize the right to terminate a pregnancy therefore discriminate against women and bar their ability to participate as equal and full members of civil society. While choices about pregnancy no doubt impact a woman’s ability to determine the course of part of her life, it is not clear why such a right should be due greater protection than a woman’s ability to defend her very existence.
The brief acknowledges that some women are hostile to gun ownership. Historically, A large segment of women were likewise averse, moderately supportive or even downright indifferent to female suffrage and women’s reproductive choice. However, the fact that only some will choose to exercise their right to self-defense should in no way prove a legal impediment to those women for whom owning a firearm is necessary to their ability to determine the course of their lives and consequently their place in society.
Read in conjunction with the brief of the domestic violence groups, the two briefs present the court with the contrasting perspectives, in regard to the gun issue, of victim feminism and empowerment feminism.

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The English Roots of the Right Arms. DC v. Heller brief:

A brief for the Cato Institute and legal historian Joyce Malcolm, in the DC handgun ban case, explicates the English common law roots of the American right to arms, and the development of that common law right in America.

Many of the briefs on both sides of this case has brief treatments of the English roots. A mistake in my view, since the material is so repetitious. The English issue is covered in some depth in a pro-ban brief filed by historians Jack Rakove, Saul Cornell, and others.

In my view, the Cato/Malcolm brief demolishes the claim that the 1689 English Bill of Rights, Blackstone's Fifth Auxiliary Right, and other common law sources did not recognize a right to own firearms in the home for personal defense. The Cato/Malcolm brief is far broader and deeper in its use of English sources, and requires no verbal gymnastics to attempt to explain away the plain languages of the key sources. Part II of the brief leads the reader through the development of the common-law right in America, from the colonial era through the 19th century.

Jeffrey Toobin has written that Justice Souter reveres the common law; if so, the Cato/Malcolm brief may be especially persuasive to him.

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LGBT brief in DC v. Heller:

A brief filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty presents a LGBT perspective on the Second Amendment. The main arguments are: 1. LGBT people have a heightened need for handguns for self-defense, because of the frequency of hate crimes, the majority of which involve attacks in the home. 2. The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right, since courts are extremely deferential to legislative/executive decisions on military issues, including discrimination against LGBT people in the military. Unlike with the other briefs that I've blogged on, there is no counterpart brief in support to the DC handgun ban to which I can link. No LGBT organization participated in an amicus brief on DC's side (although, of course, some of DC's other amici are "gay-friendly," just as many of Heller's other amici are).

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Dartmouth College II Case Motion to Dismiss Denied:

The State of New Hampshire, Grafton County Superior Court this week denied the Motion to Dismiss in the Dartmouth College II case, Association of Alumni of Dartmouth College v. Trustees of Dartmouth College. The opinion is available here.

The opinion is consistent with the views I expressed several months ago about the case. It is quite an interesting and thorough opinion.


"The Case for Settling for Mr. Good Enough":

An interesting essay in The Atlantic on love and marriage from a woman's perspective.

Most of my closest friends have always been women -- when I got married, the attendants on my side were my brother and two groomsmaids. And many of my women friends have been (or are) unmarried considerably longer than they might have liked; this was for all the right reasons, but it still made them somewhat unhappy. So I've thought a lot about such matters, thought obviously without the intensity stemming from direct personal concern (men face a different set of problems related to marriage), and the essay seemed to me to capture a good deal of truth.

In any case, I'm not sure the essay is right, I'm sure that it doesn't tell the whole story, and I am pretty sure that nothing in it is particularly original. But it strikes me as refreshingly candid as to one set of circumstances that are worth a good deal of thinking (even though it necessarily slights other circumstances). And there is one item that I thought was very well put (though I stress again that, like all statements on this subject, it can't describe everyone's experience equally):

Marriage isn't a passion-fest; it's more like a partnership formed to run a very small, mundane, and often boring nonprofit business. And I mean this in a good way.

207 Comments

Friday, February 8, 2008

Is Eminent Domain Turnabout Fair Play?

The Pfizer Corporation played a key role instigating the New London, Connecticut condemnations that led to the Kelo case. Now, some of Pfizer's own property may be on the eminent domain chopping block. The New London Day reports that New York officials may try to condemn a Brooklyn factory owned by Pfizer in order to build "affordable housing" on the site.

The article notes that some New London residents who opposed the Kelo condemnations are happy about Pfizer's predicament. As one of them put it, "Turnabout is fair play."

Her attitude is understandable. But I take a different view. Property rights, like other fundamental rights, must not be limited to those who support them. We don't deny Communists the right of freedom of speech, even though they advocate taking away that very same right from others (and have actually done so whenever they had the chance). Similarly, Pfizer should not be denied the right to property even though they lobbied to take it away from others when it was in the corporation's interest to do so.

It's also worth noting that the proposed Brooklyn condemnation seems extremely dubious. Because the property is currently all owned by one entity, there is no collective action or holdout problem of the sort used to justify the use of eminent domain in other cases. If Pfizer's land really is more valuable to the City as a housing site than in its current use, the government should be able to purchase it through voluntary transactions. The benefits of the new use would be greater than the purchase price. If, on the other hand, city officials believe that buying the land isn't worth the price, that's a sign that society will be better off leaving it to its current use.

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Congressional Brief in DC v. Heller:

A brief in favor of Respondent Heller has just been filed on behalf of 250 Members of the United States of House of Representatives, 55 United States Senators, and the President of the United States Senate, Richard B. Cheney. In January, a brief in support of the DC handgun and self-defense ban was filed by 18 Members of the U.S. House of Representatives. The latter brief suggests that "Consideration of, or deference to, Congress’s experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent with the Court’s role." Indeed true.

The 250/55/1 brief explains that Congress has repeatedly declared the Second Amendment to be an individual right, in the 1866 Freedmen's Bureau Act, the 1941 Property Requisition Act, the 1986 Firearms Owners' Protection Act, and the 2006 Protection of Lawful Commerce in Arms Act.

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McCain on Judges: Although he spoke on the topic only very briefly, Senator McCain's talk at CPAC hinted that a President McCain would make belief in judicial restraint a priority for his judicial appointments:
  [Clinton and Obama] will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives.
  I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.
More -- including an earlier address by McCain about judicial appointments -- from Ed Whelan.
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DC v. Heller, amicus brief on racial issues:

In the Supreme Court's DC handgun ban case, a brief from the Congress on Racial Equality argues that there is a long history in America of gun controls being enacted and applied with racially discriminatory intent. A brief for GeorgiaCarry.org makes similar arguments, with more detail about Georgia. [I think it's wonderful to see a 21st-century in which a black man won 2/3 of the vote in the Georgia Democratic primary, and a gun-rights organization from Georgia is calling for the U.S. Supreme Court to pay attention to problems of racial discrimination.]

In support of the DC handgun ban, a brief from the NAACP LDF uses most of its words to argue against overturning what its says is the large body of anti-individual rights precedent. The brief also points out the high rate of gun crime victimization by blacks. Pages 29-31 of the NAACP LDF brief anticipate the arguments presented CORE/GeorgiaCarry briefs, and argue that the Fourteenth Amendment's equal protection clause is sufficient to address any problem of racial discrmination in gun laws. See also NAACP Br. at 19 n.20 (DC's ban is not racially discrminatory, and in any case, Equal Protection and Due Process, are sufficient to address the issue, without need for an individual rights Second Amendment).

I don't think there's any reasonable dispute that much of the gun control in American history is tainted by racial discrimination. But, commenters, do you think that the CORE and GeorgiaCarry briefs overcome the NAACP's anticipatory counter-arguments? Please write your comments after reading the briefs, rather than making other arguments which could have been made, but were not.

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Court Voids EPA Mercury Rules:

The U.S. Court of Appeals for the D.C. Circuit vacated the Bush Administration's controversial regulations governing mercury emissions from power plants this morning. This is a big loss for the Administration and a big win for the states and environmentalist groups that challenged the rule. The decision in New Jersey v. EPA is here. I'm crashing on some deadlines, but I hope to have more to say about the decision later today or over the weekend.

UPDATE: The Washington Post covers the decision here. As the story notes, one consequence of the decision is to delay the eventual imposition of mercury emissions from power plants. On the other hand, the decision virtually assures that when federal mercury standards are eventually imposed, they will be more stringent than the Bush Administration had proposed.

Related Posts (on one page):

  1. NJ v. EPA and the EPA's Failed Mercury Policy:
  2. Court Voids EPA Mercury Rules:
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What's So Great About Unity?

One of Barack Obama's major campaign themes is the promise that he will "unite" America. Obama is an incredibly skillfull campaigner, so I must assume that he wouldn't be pushing this trope unless there were good reason to believe that it works. Of course, Obama is far from the only politician to promise unity. Remember when George W. Bush promised that he would be a "uniter, not a divider"? That was a fairly successful campaign theme too.

This emphasis on unity for its own sake seems misplaced. After all, unity is really valuable only if we are united in doing the right thing. Being united in doing the wrong thing is surely worse than being divided, if only because division reduces the likelihood of the harmful policies being enacted. And even if the policies proposed by the would-be "uniter" really are beneficial, it's not clear why broad unity in support of them is preferable to just having enough votes to get them passed.

Ultimately, the ideal of unity is antithetical to democracy itself, which relies on constant competition and division between parties. When democracy works well, it is precisely because of our divisions, which check the power of incumbents and ensure their replacement by their opponents if the voters decide they have screwed up badly enough. If we really value unity for its own sake, perhaps dictatorship or one party oligarchy would be a better form of government.

Despite its vacuousness, unity rhetoric seems to be popular. Popular enough that both conservative and liberal politicians routinely resort to it. Popular enough that a brilliant candidate like Obama has made it a centerpiece of his campaign. Popular enough that nationalists, socialists, fascists, and communists have all made effective use of it. Remember "One People, One Fuehrer, One Reich"? No, I am not saying that Obama (or Bush) is like the Nazis and Communists. Far from it. However, the Nazi and communist examples do dramatically illustrate how unity doesn't have any intrinsic value. The achievement of national unity made these regimes even worse than they would have been otherwise, not better.

The interesting question is why people find the idea of "unity" so appealing. I tentatively conjecture that the popularity of unity themes is in part related to rational political ignorance and voters' lack of incentive to consider the issues carefully and systematically. Because voters don't have much incentive to consider policy issues in detail, they often fail to get beyond the warm, fuzzy feelings that appeals to unity inspire. If voters were more sophisticated in their thinking, they would not so easily yield to this temptation. They would at least ask: "What is it that he wants to unite us to do?" They would also recognize that tropes about unity are one of the most common excuses for flawed, inefficient, and oppressive policies. As economist Dan Klein explains in his article "The People's Romance," the unity theme has a long and sordid history.

UPDATE: Various commenters and others claim that Obama is merely expressing the fact that Americans share common goals. Even if this is true, it still doesn't prove that the unity trope is a good thing. After all, there is no value to having common goals if those goals are the wrong ones. Unity has value only in so far as it can be used to promote beneficial ends, and is positively harmful otherwise. Moreover, I doubt that Obama (and previous practitioners of unity rhetoric) merely seek to express a preexisting unity. After all, if the unity they appeal to already exists, there is no need to support their campaigns in order to promote it. Rather, Obama, Bush and many others promise to provide a greater level of unity than existed before. That is surely what Bush meant when he promised he would unite rather than divide, and what Obama seems to mean today.

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Sharia Law Enforced in Texas!

Read all about this (and Osama is even involved). But wait, it's also in Minnesota. And in New Jersey (Nat'l Group for Communications & Computers Ltd. v. Lucent Technologies Int'l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).

Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment "based upon this Court's review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court's understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia."

And of course the application of Sharia law was indeed a perfectly normal matter. American courts are governed by American law, but American law has long provided that parties to contracts can provide for alternative dispute resolution mechanisms (such as arbitration). American law has likewise long provided that some contractual disputes would be resolved with reference to foreign law, especially when the law is expressly provided for by the contract. It doesn't matter whether the arbitration or the foreign law is secular or religious -- secular and religious rules are treated basically equally, on the principle that the parties' contractual choices should be honored unless some extraordinary circumstance makes it unfair to do so.

One could argue that American courts shouldn't be able to apply religious rules because of concerns about excessive entanglement of the government and religion. But even if that's so in some situations, it wouldn't apply when a court is merely asked to confirm an arbitration award rather than to applying the religious rules in the first instance, and it also wouldn't apply when the religious rules are part of the law of a foreign country (such as Saudi Arabia).

Now maybe Sharia law is more likely to be unfair than other systems in certain circumstances; and doubtless some people feel strong social pressure to enter into contracts endorsed by their cultural group. But people feel various kinds of pressure to enter into various kinds of contracts. American law usually enforces the contracts despite talk of pressure and unfairness. There are exceptions, but they are indeed exceptions, and the rule is enforcing contracts. Yet the skies haven't fallen, nor do they seem likely to fall even if more contracts end up being arbitrated or otherwise evaluated under Sharia law.

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Thursday, February 7, 2008

The Archbishop of Canterbury and Sharia Law:

Samizdata and other sources point to this article. The article begins with, "The adoption of some aspects of Islamic Sharia law in Britain 'seems unavoidable', the Archbishop of Canterbury has said." Samizdata and others harshly condemn the Archbishop's position.

I read the Archbishop's speech (which I found by googling some key phrases). It's a long speech, with a good deal of theoretical discussion that's hard for me to precisely pin down, and some references to articles and books that I haven't read and can't opine on. But the heart of that part of the Archbishop's proposal that's quoted in the newspaper article seems clear; the Archbishop proposes

a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents.' This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution — the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts.

As best I can tell, the Archbishop is arguing for an analog to something quite familiar: arbitration agreements, including prenuptial agreements. If you and I enter into a contract (such as one related to "financial transactions") in the U.S., we could agree to having our disputes resolved by an arbitrator (usually secular, but nothing stops us from choosing a religious arbitrator).

We could also agree to have our disputes resolved under whatever legal rules we choose -- the law of North Dakota, the law of Switzerland, some legal rules that we ourselves draw up, or Jewish or Islamic law. The courts would then enforce the arbitrator's decision, unless one of us can point to some compelling and exceptional grounds for setting it aside. Likewise, people can enter into prenuptial agreements that set forth the substantive and procedural rules to be followed should they divorce.

Now of course these agreements aren't always completely enforceable -- there are various procedural requirements related to disclosure of certain things for the agreement to be treated as valid, and substantive constraints on supposedly unfair provisions of the agreement. And of course the agreements can call only for standard civil remedies; we can't enter into an agreement that provides for a beheading or a whipping in case of breach. Likewise, the agreements might not be enforceable to the extent they were entered into by minors (a possible issue for prenuptial agreements entered when a spouse is under 18) or to the extent they purport to limit the rights of third parties (a possible issue for prenuptial agreements that purport to decide child custody and child support as well as division of property between the contracting spouses).

But the Archbishop's proposal likewise calls for a variety of constraints on such agreements; he's not entirely clear about the magnitude of such constraints, but I think he might well envision more constraints than American law generally imposes, and more than most libertarians like me would impose on what are after all voluntarily entered-into contracts. No-one is talking about executing apostates, only about providing for an alternate way to resolve normal civil disputes related to financial transactions, divorce, and the like.

Thus, the Archbishop's proposal seems eminently defensible under the rubric of freedom to contract -- a freedom that I as a libertarian (squish that I am) believe to be quite important. It is the freedom of people to make their own rules for their own transactions, rather than having a one-size-fits-all rule set imposed on them by the government.

Such freedom of contract often provides important efficiencies, but it also helps protect professional communities (which may not want their internal disputes resolved by lay jurors or judges who know nothing about the relevant technical questions or the customs of the trade), helps protect personal choices, and helps protect cultural and religious communities that may want to settle their disputes using their own rules. So long as the decision binds only the contracting parties -- which the Archbishop seems to expressly contemplate -- civil courts should uphold it.

Now of course many people (usually not libertarians) do object to arbitration agreements on the grounds that they're "coercive" or "unfair" in that they "force" people into giving up rights that people's shouldn't have to give up, whether procedural rights such as a jury trial or substantive rights such as a right to get half the other spouse's marital income. And indeed sometimes there are social or economic pressures that lead people into such contracts, or for that matter any contracts.

Yet it seems to me that the general presumption should still be freedom of contract, and contract that the civil courts will enforce. Generally speaking, people are better off with this freedom. True, no choice is ever completely free, but it's generally better have the power to choose (in light of all the pressures under which we labor) and be able to commit to others that this choice will be binding. If there are to be constraints on this freedom (e.g., that one can't make certain irrevocable and highly damaging contracts, such as selling oneself into slavery), they should be narrow. Again, I think that's very much the libertarian approach.

But even those who aren't libertarians should be pleased that the Archbishop actually contemplates a good deal of constraint on the freedom of contract. He doesn't go into very great detail on this (it's a lecture, not a bill), but the discussion about the "inheritance of widows" problem suggests that he would indeed impose important substantive constraints on what can be contracted away. I'm sure the Archbishop is no libertarian, and endorses a great deal of paternalistic legislation. But his willingness to endorse this sort of liberty of contract, with plenty of constraints, strikes me as a valuable acceptance of people's choice to reject one-size-fits-all government solutions in favor of those that they and their partners choose.

Now I can't speak about the degree to which the English legal system is currently open to arbitration and prenuptial agreements (I have a vague sense that it's less open to prenuptial agreements than American states generally are, but I'm not positive). And if it isn't open to them already, I certainly wouldn't endorse preferential recognition of contracts to abide by Sharia and not by other procedural or substantive contractually provided regimes. But I would endorse a general openness to enforcing such contracts, whether they are secular, Islamic, Jewish, or whatever else.

And at the very least the harsh condemnation of the Archbishop -- who seems to be endorsing a system much like that which is already available as a matter of course to those Americans who choose it -- strikes me as excessive given the relative modesty and good sense of his proposal. And I say this as someone who has criticized the Archbishop on other matters in the past.

Thanks to InstaPundit for the pointer.

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Cheek Swabs for DNA Used to Look for Serial Killer: An Orlando, Florida news station reports about a search for a serial killer using cheek swabs designed to test for a DNA match:
  Police officers in Daytona Beach are swabbing the mouths of persons of interests during traffic stops with special DNA kits in the hunt for an elusive serial killer, . . . . [T]he Daytona Beach police Chief, Mike Chitwood, said detectives have the killer's DNA.
  "Genetically, we know who he is," Chitwood said. "We have DNA evidence from the murder scenes — so, we got that. That is never going to go away. And, sooner or later, we will match the DNA to the physical person and bring closure to everything that is going on."
  Agents are using the DNA kits to collect as much DNA as possible during traffic stops and special operations in hopes on making a match.
  Local 6 showed agents stopping a person of interest from Canada, who gave his DNA to officers on the street using the DNA kit.
  The DNA kits are also being used in prostitution stings in the area.
  Hey, wait, you're wondering — can they do that? The story is short on details, so it's kind of hard to tell. But here's some background on the law, which will explain how the legal issues might go depending on how the facts play out.

  First, taking a DNA sample using a cheek swab is a Fourth Amendment search that would normally require a warrant. See Kohler v. Englade, 470 F.3d 1104 (5th Cir. 2006). It looks like the police don't have warrants here. The question then becomes if some exception to the warrant requirement applies to make the cheek swab reasonable. It may be that the officers are only asking targets for consent to give up a DNA sample. If that's the case, the swabs are constitutional under the consent exception. It also may be that the officers are only getting cheek swabs when they arrest someone. If that's right, the DNA samples are very probably constitutional under the search incident to arrest exception.

  On the other hand, if they aren't waiting until they arrest targets; aren't making the tests voluntary; and don't have particularized warrants, then these swabs are very likely unconstitutional. (There's some possible issues of exigent circumstances or special needs, but I tend to doubt they would work out.)

  Finally, it's worth flagging that I don't think the remedy is particularly clear in a case like this. Imagine an unconstitutional swab leads to a DNA match, and the target is then arrested. I gather that particular DNA match can't be used, as it's a fruit of the poisonous tree. On the other hand, I gather the police aren't blocked from trying to get a DNA sample some other way from the same guy, and since they know there's a match, presumably they would work hard to get another sample down the road anyway. DNA is not like a gun in someone's jacket pocket; it's always there, not just there at one particular time. It's not totally clear how the doctrine would work out, but presumably the police wouldn't just set the serial killer free — and presumably a court would let the government use another DNA sample taken another time in another way to prove the serial killer's guilt.
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Claremont Institute Empirical Brief in DC v. Heller:

Just-posted: Marc Ayers (of the Bradley Arant firm in Birmingham) and Don Kates have written a Brandeis brief in the Supreme Court handgun brief. The brief is filed on behalf of the Claremont Institute and a group of scholars.

The main theme of the brief is debunking the "more guns, more murder" meme, which pervades the brief of DC and many of its amici. The theme is elaborated in the briefs of the American Academy of Pediatrics, of the American Public Health Association, and of Professors James Alan Fox and David McDowall.

The single largest topic is a 1991 article in the New England Journal of Medicine by Colin Loftin. The NEJM article reported that the DC handgun ban had reduced homicides and the suicide in the District.

The Claremont brief points out that the NEJM article used raw numbers rather than rates, and used the wrong start date for the law (which was delayed by an injunction issued by the D.C. Superior Court). Moreover, when one compares DC to the other 49 largest U.S. cities, or to Virginia and Maryland, the D.C. homicide rate grew worse in comparison to these other jurisdictions. Notably, a meta-study by the National Academies of Science agreed with the critiques of Gary Kleck and Chester Britt that the NEJM article's data were so fragile as to be of no persuasive value; even small adjustments of the start/end date negated the study's findings.

Given shorter treatment in the Kates/Ayers brief is another study which used the circulation of Guns & Ammo magazine as a proxy for gun ownership levels. The study found that higher circulation of Guns & Ammo was associated with higher homicide. This finding is frequently restated in the briefs of DC and its amici as a finding that more guns leads to more murder. Kates/Ayers cite John Lott's article pointing out that during the study period, Guns & Ammo was giving away a huge number of free copies (to maintain circulation numbers), and targeted the give-aways at cities where it was believed that crime was increasing. The circulation of other gun magazines (which were not using G&A's circulation-boosting method) shows no relation to homicide.

Kates/Ayers present extensive data showing that gun density is not related to homicide. For example, since the late 1940s, per capita gun ownership in the U.S. has soared, while homicide rates have fluctuated with little apparent relation to gun density. Likewise, comparative data from Europe show no relation between gun density levels and homicide rates.

DC has argued that its ban on possession of a functional firearm in the home contains an implicit exception for self-defense. Kates/Ayers explore what such an exception might mean, and argue that there is no way for a Court, or a DC resident, to discern the terms of the alleged self-defense exception.

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The Denominator Is Important:

I just read an article on whether people in their homes should be free to use lethal force against burglars even when they don't have specific reason to fear death, serious bodily injury, rape, or kidnapping from the burglar. One question that arises, of course, is whether they have enough general reason to fear injury from such crimes -- just on the theory that someone who will break into their home may also attack them further -- that they should be allowed to assume that the burglar may mean them harm, and use lethal force on that assumption. Here's the relevant discussion:

[B]urglary, from a statistical standpoint, does not appear to be a particularly violent crime. The vast majority of burglars appear to be unarmed, and the vast majority of burglaries involve actual or attempted theft of household property, rather than violent crimes.... Indeed, the incidence of violent attacks by intruders during burglary is quite small. Violent crimes (generally defined as rape, robbery, and assault) were committed during only about 3.8% of all burglaries committed during a ten-year period studied by the Department of Justices.
Sounds like a pretty telling statistic, no? But then let's look at the small print in the footnote:
It should be noted, however, that when a household member was present, the incidence of violent crimes was considerably higher -- about 30.2%.
It's to the article's credit that it mentions this fact, but shouldn't this go in the text, instead of the 3.8% statistic, rather than in the footnote? After all, the percentage gotten when the denominator is only those crimes where there's someone whom the burglar to attack (30.2%) is rather more relevant than the percentage gotten when the denominator is all burglaries.

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Pathetic: Eugene includes this language in his post below, but I want to stop and comment on the sentence about terrorism in Mitt Romney's address announcing that he is suspending his campaign:
If I fight on in my campaign, all the way to the convention, . . . I'd forestall the launch of a national campaign. Frankly, I would be making it easier for Senator Clinton or Obama to win. Frankly, in this time of war, I simply cannot let my campaign be a part of aiding a surrender to terror.
  If you watch the video, this was no off-the-cuff remark. It was a big applause line, delivered carefully and deliberately. After he delivers the line, Romney grins broadly and soaks in the moment of his having delivered a good zinger.

  But come on, folks. "Surrender to terror"? You can certainly argue that one candidate or one party is better at responding to the threat of terrorism. But suggesting that the other side would "surrender" to terror is absurd. This speech should have been a display of statesmanship, not an audition to be the next Ann Coulter.
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NRA brief in DC v. Heller:

The NRA amicus brief in DC v. Heller is now on-line. Although the Court will be deluged with amici, the NRA brief is likely to get a close read, for the same reasons that Justices pay close attention to the AFL-CIO brief in a labor case, or the ACLU brief in a free speech case. Here's a summary:

Part I goes through the major textual and structural arguments of the Second Amendment as an individual right. Does not use a lot of Framing Era quotes (of which there are a lot in Respondent's brief, and will be more in other amicus briefs). Explains how the right of the people to keep and bear arms makes possible the existence of a well-regulated militia. This argument is supported, in part, by a discussion of the NRA's own history is promoting marksmanship and safety training, including its leading role in certifying police firearms instructors. My favorite part is President Truman's letter thanking the NRA for its efforts during World War II, which "have materially aided our war effort."

Part II argues for a strict scrutiny standard in review of gun laws, based on Supreme Court precedent. It distinguishes "fundamental" from the way that term is used in deciding whether to incorporate a criminal procedure provision from "rights fundamental to our democracy." It notes that the Second Amendment declares itself to be "necessary to the security of free state", and therefore must be fundamental to American democracy itself.

The NRA brief engages the argument raised in pro-DC amicus from Professors Winkler and Chemerinsky. They had argued for a "reasonableness" standard of review (with "reasonablness" meaning, in effect, that almost any law short of total destruction of the right is permissible). The W&C brief reasoned that viewpoint discrimination is impossible in a Second Amendment context, and that therefore strict scrutiny is unnecessary. The NRA responds that viewpoint discrimination certainly is possible, especially under a weak standard of review, since gun laws could be used to disarm political opponents. The point could have been illustrated by abundant historical examples, but perhaps space limitations precluded this.

Part III addresses crime and accident statistics, and points out that only a minute fraction of the 200 million guns in America are misused. Modern state court cases (e.g., Rhode Island's Mosby v. Devine) as well as common law classics (Semayne's Case) are deployed to argue for the right of armed self-defense in the home.

The comments section of my previous post (on Heller's brief) was impressively thoughtful, as it was clear that commenters had read the Heller and DC briefs, and were offering commentary to advance the discussion. (Rather than getting into troll-fights over gun policy in general.) Commenters, keep up the good work! Please read the NRA brief before commenting, and of course also read the Winkler-Chemerinsky brief if you want to comment on the standard of review issue.

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Two Dozen Yale Law Students Stand With Plastic Bags Over Their Heads During Judge Bybee Talk: Coverage from the Yale Daily News is here, and a photograph of the protest is here. Thanks to the ACS Blog for the links. (This happened a few days ago, but I don't think I've seen it widely blogged.)
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Abercrombie & Fitch Ads Accused of Being "Obscene" as to Minors:

Dan Slater at the Wall Street Journal Law Blog points to this Virginia Beach Virginian-Pilot story:

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges....

The citation was issued under City Code Section 22.31, [police spokesman Adam] Bernstein said, which makes it a crime to display "obscene materials in a business that is open to juveniles." ...

Bernstein confirmed that one depicts three shirtless young men from the back, walking through a field. The man in the lead appears to be about to pull up his jeans, which have slipped down enough to reveal his upper buttocks....

The other image is of a woman who is topless and whose "breast is displayed with her hand covering just the nipple portion," Bernstein said. "You could still pretty much see the rest of the breast."

The seizure was "prompted by several customer complaints, and the management of Abercrombie & Fitch was notified of those complaints," Bernstein said....

I'm pretty sure, though, that this prosecution is unconstitutional, not statutorily authorized, or both — as the Virginia Beach city attorney's office seemed to conclude when it said that it would recommend dropping the charges at the scheduled March 3 hearing. The relevant ordinance reads:

It shall be unlawful for any person to knowingly display for commercial purposes in a manner whereby juveniles may examine or peruse ... Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles ...
"Harmful to juveniles" is defined as:
Harmful to juveniles: That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it:

(1) Predominantly appeals to the prurient, shameful or morbid interest of juveniles;
(2) Is patently offensive to prevailing standards in the adult community in the city as a whole with respect to what is suitable material for juveniles; and
(3) Is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.

Juvenile: Any person less than eighteen (18) years of age.

Nudity: A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

Here's the problem: To be constitutionally unprotected obscenity (including the broader category of obscenity-as-to-minors, which may not be shown to minors even if it's protected as to adults), the material must do more than just depict nudity, even in a "prurient," "offensive," "value[less]" way — it must depict sex, excretion, or "lewd exhibition of genitals." "[A] portrayal of nudity is not, as a matter of law, a sufficient basis for a finding that a work is obscene," Price v. Commonwealth, 214 Va. 490 (1974), and in fact Miller v. California — the 1973 Supreme Court case that held that there is indeed an obscenity exception to the First Amendment — didn't give mere nudity as one of its examples of the "sexual conduct specifically defined by statutes" that could be restricted. (The Virginia Beach ordinance largely follows the Miller test but with the addition of "for juveniles" or "of juveniles" to each prong, which is what makes it an ordinance related to "obscene-as-to-minors" material; the one exception to this model is that it also adds "nudity" as one of the specifically defined forms of "sexual conduct.")

Likewise, the Court explicitly said in Jenkins v. Georgia, 418 U.S. 153, 161 (1974),

Our own viewing of the film satisfies us that ‘Carnal Knowledge’ could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the ‘patently offensive’ element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including ‘ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.
And the Court likewise held that "Clearly all nudity cannot be deemed obscene even as to minors," Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). "[U]nder any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene 'such expression must be, in some significant way, erotic.'" Nudity in the context of sex would be erotic, as would lewd exhibition of the genitals; a butt crack might be sexy in some contexts, but I doubt that it would be "significant[ly] erotic," and I suspect the courts would so rule even as to some exposure of the female breast. The Erznoznik Court's earlier mention that "The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited," seems to support that — a partially or even largely exposed breast probably doesn't qualify as "sexually explicit." See also Sebago, Inc. v. City of Alameda, 211 Cal. App. 3d 1372 (1989) (specifically applying the "nudity alone isn't obscene" rule as to a restriction on unsupervised distribution of obscene-as-to-minors material); Carl v. City of Los Angeles, 61 Cal. App. 3d 265 (1976) (same); State v. Cardwell, 539 P.2d 169 (Ore. App. 1975) (same).

It's also hard to see — even assuming the ordinance could apply to nudity without sex, excretion, or lewd exhibition of genitals — how depiction of a partly unclothed breast, or the top of a butt crack, "[p]redominantly appeals to the prurient, shameful or morbid interest of juveniles" ("prurient" in these contexts is just a synonym for "shameful or morbid"). Likewise, the Virginia law is that the third prong is satisfied "if a work is found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole"; my sense is that the pictures, though advertising, have serious artistic value for older adolescents.

But more importantly, it seems to me that absent something beyond mere nudity (even nudity that is titillating even though it lacks lewd exhibition of genitals), a picture can't be constitutionally treated either as obscene or as obscene-as-to-minors.

UPDATE: Thanks to reader Tracy Johnson, we bring to you the following nude breast — special bonus: Sex + Violence! — though one with serious political value (since it's on the flag of the Commonwealth of Virginia):

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Headline of the Year?

From the excellent Language Log.

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Romney Suspends Campaign, McCain Seen as a Sure Winner:

The AP reports:

John McCain effectively sealed the Republican presidential nomination on Thursday as chief rival Mitt Romney suspended his faltering presidential campaign.

"If I fight on in my campaign, all the way to the convention, I would forestall the launch of a national campaign and make it more likely that Senator Clinton or Obama would win. And in this time of war, I simply cannot let my campaign, be a part of aiding a surrender to terror," Romney will say at the Conservative Political Action Conference in Washington....

Thanks to InstaPundit for the pointer.

UPDATE: I should note that I think Romney's "aiding a surrender to terror" line is quite over-the-top; whatever Clinton's and Obama's possible faults may be, they surely aren't planning to "surrender to terror" or do anything close. (Even promptly withdrawing troops from Iraq, something I don't agree with, can't be fairly described as that.) I didn't focus on that sentence when I first posted it -- I just copied and pasted what struck me as an important news item -- or else I'd have noted this at the outset.

Related Posts (on one page):

  1. Pathetic:
  2. Romney Suspends Campaign, McCain Seen as a Sure Winner:
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Respondent's Brief in DC v. Heller:

On Monday, the brief for Respondent was filed in DC v. Heller, the Supreme Court's case involving the DC handgun ban. The brief for Petitioners (DC and Mayor Fenty) is here.

The first portions of each brief raise textual and historical arguments. DC argues that the preamble of the Second Amendment ("a well-regulated militia") controls and limits the main clause ("the right of the people"). DC emphasizes that militias are subject to limitless state control.

The Heller brief offers well-known rules of construction from the Founding Era to argue that a preamble doesn't limit the main clause. Both sides quote Marbury v. Madison. The Heller brief contains a great deal of American history, partly based on David Young's new book The Founders' View of the Right to Bear Arms (2007), which presents General Gage's disarmament of the citizens of Boston as one of the key causes of the decision of Americans to finally resort to armed revolution, and as the kind of abuse which the Founders wanted to prevent in the new nation.

The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on "necessary to the security of a free State" being a reference to state governments, not a free polity. Respondent's brief gives short shrift to this argument, citing various cases that governance of the District of Columbia is controlled by various parts of the Constitution which only limit (or used to only limit) Congress, and not state governments. Eugene Volokh's Notre Dame L. Rev. article "Necessary to the Secureity of a Free State," collects every use of "a free state" during the Founding Era, and shows that the phrase was a term of art which was used only to mean "a free polity" and never to mean "a free American state government."

DC presents more social science data than does the Heller brief, which confines itself to some quick rebuttals. On both sides, the in-depth debate in social science is in the amicus briefs. (More on those next week, after the pro-Heller amici file on Monday.)

DC's gun lock law literally requires that all guns in the home (rifles, shotguns, or pre-1977 handguns owned pursuant to a grandfathering clause) be locked up or disassembled at all times. The locking law makes an exception for guns on business premises and for guns being used in sporting activities. DC concedes that a ban on use of long guns for self-defense in the home would be unconstitutional, but argues that the functional firearms ban must contain an implicit self-defense exception. DC points to a case where a court found that a duress exception must exist in an another law.

Heller retorts by pointing to the 1977 D.C. Court of Appeals (the District's equivalent of a state supreme court) case of McIntosh v. Washington. In that case, the Court of Appeals upheld the self-defense ban as an intended feature, not a bug, of the District's new gun law.

Both briefs are very well-written, and merit study by any law student or lawyer looking for good examples of persuasive brief-writing on sophisticated topics.

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Wednesday, February 6, 2008

Handicapped vs. Disabled:

Edwin Battistella's Bad Language p. 98 (2005) explains the supposed superiority of "disabled" over "handicapped":

[O]ne can argue that disabled is the optimal choice on the basis of conciseness, accuracy, politeness, and connotation.... The term handicapped ... carries the connotation of being held back in some competitive enterprise (we talk of social handicaps, golf handicaps, and racing handicaps) and is unwelcome by some people with disabilities.

I've heard this argument from others as well.

But wait: The term disabled carries the connotation of not being able, which surely holds one back in various enterprises, competitive and otherwise. In fact, if you're looking at the connotations that stem from the word's visible etymology, "handicapped" seems more favorable — it suggests that someone's path is harder because of the burden under which he labors, but it does not suggest that he's not able. Horses or golfers who labor under heavy handicaps may sometimes win. Horses or golfers who are disabled (in the literal sense) don't win.

Now etymology, even visible etymology, will only carry you so far; there are other aspects to this issue, which I've touched on elsewhere (here and here). But if one does focus on visible etymology, it seems to me that "handicapped" should be the superior term.

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Commercial Speech and the Distinction Between Unsolicited Speech and Speech in a Voluntarily Accessed Publication:

In the lawyer self-promotion thread, I pointed out a troublesome implication of a New York appellate decision applying the Telephone Consumer Protection Act. The decision held that a lawyer's unsolicited faxes explaining some legal issues (and implicitly promoting the lawyer as an expert whom readers should hire) were commercial advertising, and thus less-protected "commercial speech" for First Amendment purposes. The same logic, though, would suggest that a lawyer's blog, legal magazine article, treatise, or newspaper column (which also implicitly promote the lawyer as an expert whom readers should hire) would be commercial advertising, too.

Some readers suggested a possible distinction: Unsolicited faxes come to the recipient, simply because he's plugged his fax machine into the phone line; the other communications only come to him once he's opened up some publication or visited some Web site. And I agree that this is a distinction that makes us annoyed by unsolicited faxes (especially since they cost the recipient money by using his paper), and may justify special statutes aimed at such faxes.

But the trouble is that this distinction can't affect the judgment of whether something is "commercial speech" for First Amendment purposes. The commercial speech cases generally define the category to include speech that proposes a commercial transaction between the speaker (or the speaker's business partners) and the listener (or the listener's business partners). That includes proposals in unsolicited speech (such as mailings or in-person approaches) or in voluntarily accessed publications (such as newspapers, magazines, or TV programs). Many of the Court's "commercial speech" cases in fact involved commercial ads in newspapers, on television, on product labels, and the like.

An "Accident? Hire me" ad is equally a proposal of a commercial transaction if it's in an unsolicited fax, in a free newspaper dropped on your doorstep (which may have a combination of editorial and advertising), in a free newspaper you pick up, or in a newspaper which you pay to subscribe to. Likewise, an "Introduction to lawyer malpractice law" page is equally a combination of information and an implicit suggestion to hire (or refer people to) the author if it's in an unsolicited fax, in a free newspaper dropped on your doorstep, in a free newspaper you pick up, or in a magazine which you pay to subscribe to.

It may well be that the law should bar all unsolicited faxes, whether they are commercial or not. And it may well be that First Amendment law should treat restrictions on unsolicited speech differently from restrictions on solicited speech.

But the statute here distinguishes commercial speech from noncommercial speech; and it condemns the particular fax here on the grounds that it is commercial advertising, which is to say commercial speech. That logic can't be neatly cabined to apply only to annoying unsolicited faxes, when commercial speech can exist in lots of other media as well.

(For evidence that the line TCPA draws for faxes tracks the First Amendment commercial/noncommercial speech line, see the uncontradicted assertions in the Stern v. Bluestone dissent and the reasoning in Rudgayzer & Gratt v. Enine, Inc., 779 N.Y.S.2d 882 (2004), on which Stern relies.)

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Is the How Appealing Blog "Commercial Speech" and Thus Less Constitutionally Protected? How About This Blog?

In Stern v. Bluestone, a New York appellate court held that blast faxes from a plaintiffs'-side legal malpractice lawyer — sent to other lawyers — constituted commercial advertising.

Each "Attorney Malpractice Report" [fax] consists of a one-page essay on legal malpractice containing information regarding issues and trends in that area. The faxes include generic statements about the elements of professional malpractice; the most common causes of attorney malpractice litigation; and brief discussions of situations that have given rise to attorney malpractice cases. At the bottom of each fax is a box containing Bluestone's contact information, office address, telephone number, fax number and web site address. Another web site address appears at the top of the faxes....

The court plausibly reasoned that the faxes were commercial self-promotion on Bluestone's part (paragraph break added):

The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits.

Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services.... Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services.

The court doesn't discuss in detail the fact that Bluestone is faxing lawyers and not the consumers who would typically use his services, but I take it that the response to that would be that he's trying to get lawyers to refer clients to him (since many lawyers don't know much about this sort of litigation, and would rightly refer their clients to specialists). And because the speech is treated as commercial advertising, the court concludes, it's covered by the federal ban on unsolicited commercial advertising via fax — though note that the legal consequence of this is that the speech is treated as falling within the "commercial speech" exception for all purposes, not just for the blast fax law.

Now there surely is something to the court's analysis: When lawyers and other professionals write about things they specialize, they're often implicitly trying to promote their services. And that's true of magazine articles, blogs, and other things as well as blast faxes. Young lawyers, I'm told, are often urged to write for bar publications precisely for this reason.

Yet if the court is right, then this suggests that lawyer-written blogs (such as the invaluable How Appealing), lawyer-written articles, and even lawyer-written treatises might qualify as "commercial speech," since they too "have the purpose and effect of influencing recipients to procure [the author's] services." (I give How Appealing just as a prominent and highly respected example of a blog that is written by a lawyer, and that I very much hope helps bring the lawyer business, or else I imagine he wouldn't be able to devote as much time to it as he does.)

Such blogs, articles, and treatises often "include the name of [the author's] law firm and contact information." They "indirectly advertise the commercial availability and quality of such services." They often "list ... web sites that boast [the author's] specialization." They "are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services."

"Moreover, [the author's] professional role as an attorney specializing in [whatever the blog, article, or treatise topic may be] supports the conclusion that the [blog, article, or treatise] advertise[s] his services." And if the author's "identity, motives, purposes, and intentions are relevant to whether the [work] was merely 'information' or 'advertising,'" that may often likewise cut against the blogger or article author, since the author's identity is as a practicing lawyer, and his motive will often in part be to get business.

And if the material is treated as "commercial speech," then the consequence isn't simply that it can't be sent as an unsolicited fax (something we law bloggers certainly don't do). Rather, we might well become strictly liable for any false statements we might post, rather than being protected by the "actual malice" test and the like. We would be punishable for any statements that the Bar might find to be "misleading." We could be required to post a wide range of government-compelled statements, which usually can't be required for nonadvertising media, but can be for advertisements. And the government might even be able to impose broader content-based restrictions on our speech, so long as the restrictions pass muster under the weaker Central Hudson test rather than the very demanding strict scrutiny test.

How can law bloggers and article writers distinguish themselves from Bluestone? Likely not based on motive; even if motive is relevant (the court here says it isn't, though later it cites a case suggesting that it may be), law bloggers and writers often have a mixed motive — spread knowledge and improve the legal profession, but also get more client inquiries and referrals — and law faxers might, too. It may well be that Andrew Bluestone not only likes to fight lawyer malpractice in court, but sincerely wishes that lawyers know better how to avoid malpractice, or how to spot possible malpractice causes of action against their clients' ex-lawyers. (A cynic might think that malpractice lawyers would like to see more malpractice, but many of them might figure that there'll be plenty for their business in any case, and surely many serious, decent professionals sincerely want a world with less malpractice.)

Perhaps the difference might be that Bluestone's faxes are brief and not terribly informative. But I'm not sure that's right — in fact, Bluestone does have a blog, and the entries in his Attorney Malpractice Report category strike me as having a good deal of substance. I can't speak to whether they're particularly original, helpful, or even accurate; nor am I positive that his faxes tracked these blog posts. But my sense from the opinion is that the fax items were pretty similar to the blog posts; and I'd hate to see a legal test under which a court would have to compare the relative value of Bluestone's posts and the relative value of my posts or Howard's posts or any other legal blogger's posts.

So it seems to me that the Stern decision is pretty troubling, and potentially dangerous to all lawyers who write about law, as well as to other professionals who do similar things — potential expert witnesses who write articles aimed at lawyers, doctors who write articles in the hope of building their name with the public or with other doctors who can provide referrals, and more. I'm not at all sure it's wrong under existing law, especially given Bolger v. Youngs Drug Products Corp. (1983), in which the Supreme Court held 8-1 (with only Justice Stevens taking a contrary view) that pamphlets by a drug company that promoted the benefits of condoms fell within the "commercial speech" zone of lower protection — even when they didn't mention the company's product by name. (This case goes a bit beyond Bolger; but not far.) But the decision does, I think, help illustrate the potential breadth of the "commercial speech" category under existing law, and helps show how a considerable amount of speech restriction — including restriction of valuable speech such as law blogs or professional articles — could be allowed under a broad reading of the commercial speech doctrine.

Note: I've spoken here of "commercial speech" in the First Amendment sense, which roughly means "express or implicit commercial advertising." For more on this definition, see here; suffice it to say that "commercial speech" doesn't mean "speech sold as an article of commerce" (such as a book, a newspaper, or a slogan on a T-shirt) or "speech about commerce"; it just means express or implicit advertising proposing a commercial transaction between the speaker (or his business partners) and the listener (or his business partners).

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McCain / Watts?

A RedState post suggests "JC Watts for Vice President." Of course, the Julius Caesar part might worry some ....

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The Good Old Days, When Typewriters were Typewriters:

In today's Washington Post, Ruth Marcus has an op-ed piece bemoaning the public release of the federal budget documents exclusively in electronic form, rather than in the form of a 2,200-page printed document. "It isn't the same," she writes, "as having the volume -- volumes, actually -- in hand, being able to flip through the tables, to see the columns neatly arrayed without having to scroll up or down to decipher the details."

It's "more than simple nostalgia" for the experience of paper, she doth protest:

"There is a clarifying immediacy to holding the document itself, not settling for its online representation . . . To read a document online is to face constant temptations to stray from the text. . . . [To] my school-age children, [who]are being taught to compose at the keyboard, writing in longhand seems as antiquated as dipping quill in ink. But there is something lost in intellectual rigor by abandoning -- indeed, never really learning -- the laborious discipline of writing out a first draft."
"Online is much harder to use. It makes the information less accessible and harder to ferret out. Frankly, it is no fun staring for hours at a computer screen to find obscure spend-out rates. You can't underline, can't make a note on a page, and who wants to read a computer in bed?"
Hmmm . . . can't say I get the point about the "intellectual rigor" of writing longhand. Sure, releasing the information in electronic form is different than having the Government Printing Office produce a couple of thousand copies -- different as in "better." It makes the information "less accessible"? You've got to be joking -- it's "less accessible" when anyone in the world who wants a copy can get one than when you have to stand in line at the GPO and lug away your copy? Harder to ferret out information? How so? I find searching through 2200 page documents a whole lot easier when they're in electronic form -- and if you don't, if you really "crave the comforting certainty of ink on paper" or are desperate to underline or make notes on a page or read in bed, you might find it useful to buy a "printer," a fabulous little device that can take electronic documents and, quite successfully, transfer them onto paper; your local Kinko's would be more than happy to prepare as many 2200-page versions of the budget as you would like.
What Ms Marcus is really asking for, I suspect,is a taxpayer subsidy for her craving -- the good old days, when reporters could get nice free copies at the GPO at taxpayer expense. If the federal government wants to print up a few thousand copies to give away, I don't have a big problem that -- but couching it as some sort of plea for information purity is a bunch of nonsense.

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The Candidates on Trade:

David Ranson assesses the candidates' trade positions in the WSJ. This is an important issues upon which to judge presidential contenders because, as Ranson notes, "Trade is a good litmus test of statesmanship, since many polls show that voters believe trade with other countries hurts our economy."

During their debates, some of the Republican candidates expressed more ifs, ands or buts about free trade than others. John McCain says: "Free trade should be the continuing principle that guides this nation's economy." Mitt Romney's position is: "I strongly support free trade, but free trade has to be fair in both directions." According to Mike Huckabee: "I believe in free trade, but it has to be fair trade." But elsewhere he has said: "I don't want to see our food come from China, our oil come from Saudi Arabia and our manufacturing come from Europe and Asia."

Hillary Clinton has taken an even stronger stance against free trade, suggesting that the economic theories underpinning it no longer hold. To support that she cited economics Nobel Laureate Paul Samuelson, but he was only making the long-understood but sometimes forgotten point that, even in the long run, free trade does not benefit everyone.

Mrs. Clinton believes in "smart trade." As president she would appoint an official to ensure that "provisions to protect labor and environmental standards" are enforced by international bodies like the WTO and the International Labor Organization. She proposes a "time out" on future trade agreements, and a reconsideration of existing deals -- including Nafta.

Barack Obama is more even-handed: "Global trade is not going away, technology is not going away, the Internet is not going away. And that means enormous opportunities, but [it] also means more dislocations." In a 2005 essay he said: "It's not whether we should protect our workers from competition, but what we can do to fully enable them to compete against workers all over the world."

If Messrs. McCain and Obama see foreign trade as a glass that is half-full, Mrs. Clinton, Mr. Romney and Mr. Huckabee see the glass as half- empty.

Based on Ranson's summary, it seems McCain is the soundest of the lot. Whether he'd be a successful free trade President is another matter, as he would have to contend with a heavily Democratic Senate.

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Feds Seek to Dismiss Rendition Claim:

The Washington Post reports on the Justice Department's effort to dimiss a lawsuit against private companies alleged to have assisted in the rendition of a detainee.

The American Civil Liberties Union sued Jeppesen Dataplan Inc. last year in San Jose federal court, accusing it of aiding the CIA in the "forced disappearance, torture and inhumane treatment" of five suspected terrorists in violation of national and international laws. The ACLU alleges that Jeppesen, based in San Jose, knowingly participated in the program by supplying aircraft, crews and logistical support to the CIA flights.

On Tuesday, Justice Department lawyers asked U.S. District Judge James Ware to toss the lawsuit without further litigation because of unspecified national security risks.

In an earlier court filing, CIA Director Michael Hayden invoked the "state secrets privilege," which would let him bar evidence sensitive to national security from being used in court.

The judge appeared sympathetic to Hayden's position Tuesday, but declined to rule immediately. Ware said he would issue a written opinion soon.

ACLU lawyers argued Tuesday that Hayden's security concerns are trumped because the rendition program is public knowledge.

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Tuesday, February 5, 2008

An Overlooked Potential Benefit of Conservative Distrust for McCain:

John McCain will now almost certainly become the Republican nominee for president. Therefore, we will be hearing more about the longstanding issue of conservative distrust towards him. I think that that distrust has an important upside that has been overlooked: it will make it more difficult for McCain to promote major new expansions of government should he become president.

Many conservatives either supported or at least refused to aggressively oppose the Bush Administration's massive expansion of domestic spending, most notably his prescription drug and education plans. They did so in part because conservatives for a long time felt a sense of affinity with Bush and trusted him. There is very little such trust between conservatives and McCain. It will therefore be much more difficult for him to win conservative support for comparable boondoggles.

That, combined with the restraining influence of divided government, will make it much harder for McCain to enact major new statist policies than it was for Bush during the years when he had a Republican majority in Congress. McCain might even end up emphasizing his anti-spending instincts in order to shore up conservative support.

I don't want to be a pollyanna here. If elected, McCain will almost certainly succeed in enacting some policies that pro-limited government conservatives (to say nothing of libertarians) will find highly objectionable. Some conservative Republicans will be tempted to support McCain's initiatives simply out of party loyalty. That said, I think that the combined impact of conservative distrust and divided government can greatly reduce the potential harm caused by a McCain Administration. It might even result in some positive benefits.

Ronald Reagan once urged us to "trust but verify." When it comes to McCain, a "distrust and verify" approach might be even better.

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And Now, An Important West KeyNote:
[2] Key Symbol 399 Vagrancy
Key Symbol 399k1 k. Nature and Elements of Offenses.

It is not a crime to be a "hippie".
Source: The West KeyNotes associated with Hughes v. Rizzo, 282 F.Supp. 881, 884 (E.D. Pa. 1968) (Fullam, J.) ("It is not a crime to be a ‘hippie’, and the police could not lawfully arrest on the basis of suspicion, or even probable cause to believe, that the arrestee occupied the status of being a homosexual or narcotics addict.").
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ACLU of Massachusetts Condemns Brandeis University

in the Hindley "wetback" matter.

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"Middle School Issues Ban on Intentional Flatulence":

So reports Village Soup / the Knox County Times (thanks to InstaPundit for the pointer). Apparently "it seems some Camden-Rockport Middle School eighth-grade boys are ... making a game of seeing who can expel the loudest and grossest flatus"; the school responds by threatening detention for "intentional farting."

Reader James Paternoster asks whether the school can do this. I answer yes, and it should, both to avoid distraction and to teach students how to behave. And detention seems a sensible punishment -- enough to be something of a deterrent, but not something that would interfere with the students' education or be otherwise excessive (as expulsion or a long suspension would be).

True, I'd hate to try to prove beyond a reasonable doubt in a criminal case that a fart was intentional. But school discipline isn't a criminal case, there's no need to prove the intent beyond a reasonable doubt, and often the students' statements, giggles, and other behavior will give a perfectly adequate clue to the clueful teacher. Perhaps experience will show the school that for some reason this policy won't work, but it certainly seems to me to be worth trying.

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Married in Hell:


OK, that's not the point, but that's what it looked like when the article first pointed out the interior.

A different thought, though possibly an idiosyncratic one: The bride's wedding dress strikes me as a delightful alternative to the usual wedding dress -- it presents the image of a confident, adult woman, not a young girl or a historical copy of the young girl. I understand such dresses are more common these days in second (and later) weddings; but I like them for all weddings, especially those of women who are past their early 20s. Lovely as ordinary wedding dresses may be (and any friend of mine who's getting married always looks lovely), I like nonspecialty dresses much better.

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The Downside of Mavericks:

In view of all the praise John McCain has gotten for being a "maverick," I can't resist quoting the Iceman's critique of a similar maverick naval aviator:

Maverick [justifying violating the rules during a training flight]: Hard deck my ass. We nailed that son of a bitch. [High fives Goose].

Iceman: You two really are cowboys.

Maverick: What's your problem, Kazanski?

Iceman: You're everyone's problem. That's because every time you go up in the air, you're unsafe. I don't like you because you're dangerous.

Maverick: That's right! Ice... man. I am dangerous.

UPDATE: Commenters point to this clever video analogizing McCain to Maverick and Romney to the Iceman. All I can say is that if Romney really were as impressive as Iceman, I'd have a much different view of the election.

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Wikipedia Refuses To Remove Pictures of Mohammed from Entry,

despite 90,000+ signatures on an online petition (though a quick skim of a few signatures suggests that not all of them endorse the petition's views).

Good for Wikipedia. An encyclopedia may certainly choose not to include such pictures, and still remain true to its mission. (I don't think it would be right for the encyclopedia to remove important historical details that some people are offended by, though the encyclopedia authors would surely have the First Amendment right to do this; but drawings representing the subject are not a necessary part of an accurate discussion of the issue.) But I think an encyclopedia may also properly refuse to succumb to such pressure, and I approve of the Wikipedia editors' refusal here.

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Sounds Like Good Customer Service to Me:

A reader sent me an e-mail which seems to condemn this development as a sign of "dhimmitude":

Standard & Poor's said it will launch on Tuesday versions of its widely used global indexes such as the S&P 500 .SPX, in response to the burgeoning demand for financial products and services that comply with Islamic law, or shariah.

Shariah forbids Muslims from receiving interest payments and from investing in companies involved in the production or sale of pork, alcohol, tobacco, pornography, gambling and non-Islamically structured finance or life insurance....

In further developments, some people have actually launched restaurants that only serve shariah-compliant food! Not only that, but others have food that complies with Jewish law, and still others have food that complies with vegan ethical principles. How will the nation survive?

Seems to me that if customers want to buy certain products and not others -- because they're Muslim, Christian, Jewish, Buddhist, vegan, and so on -- it's generally quite good for businesses to cater to those customers' preferences. If that means investing in companies that don't sell certain foods or certain financial instruments, or investing in companies that pollute less, or investing in companies that supposedly treat their works better, that seems just fine to me. We don't become "dhimmis" (non-Muslims governed by Muslim law) by doing what smart businesspeople routinely do: adjusting their products to the tastes of their customers.

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More on Religious Accommodation Requests:

The Telegraph (U.K.) reports (thanks to my friend Manny Klausner for the pointer):

[Muslim w]omen training in several hospitals in England have raised objections to removing their arm coverings in theatre and to rolling up their sleeves when washing their hands, because it is regarded as immodest in Islam.

Universities and NHS trusts fear many more will refuse to co-operate with new Department of Health guidance, introduced this month, which stipulates that all doctors must be "bare below the elbow".

The measure is deemed necessary to stop the spread of infections such as MRSA and Clostridium difficile, which have killed hundreds.

Minutes of a clinical academics' meeting at Liverpool University revealed that female Muslim students at Alder Hey children's hospital had objected to rolling up their sleeves to wear gowns.

Similar concerns have been raised at Leicester University. Minutes from a medical school committee said that "a number of Muslim females had difficulty in complying with the procedures to roll up sleeves to the elbow for appropriate handwashing".

Sheffield University also reported a case of a Muslim medic who refused to "scrub" as this left her forearms exposed.

Documents from Birmingham University reveal that some students would prefer to quit the course rather than expose their arms, and warn that it could leave trusts open to legal action....

A few thoughts:

1. Certainly hospitals should insist on maintaining proper levels of hygiene, even if that violates some doctors' or students' religious views. Reasonable accommodations of religious beliefs are generally good, but an accommodation that puts patients' health at risk is not reasonable. And while I'm not an expert, my sense is that the hospitals' insistence on not leaving garments hanging below the elbow is sound.

2. At the same time, hospitals should be open to proposed accommodations that would satisfy the Muslim women doctors' and students' felt religious obligations but at the same time protect patients' health. For instance, if it is possible -- as the Islamic Medical Association's spokesman suggests -- to have "long, sterile, disposable gloves which go up to the elbows," that might well be a reasonable accommodation.

3. More broadly, my sense is that such reasonable accommodations are not only good for religious observers, but good for the rest of us, too. When Islamic women go into respected professions, that undermines conservative Islam's subordination of women, and brings Islamic culture closer to Western norms. "Women have bare arms" vs. "women have gloves on their arms" is a relatively small cultural difference. "Women become doctors" vs. "women don't become doctors" is a much bigger cultural difference.

It may well be that as conservative Muslim women become more professionally liberated, women's standards of dress will become more relaxed, too. The two have gone hand in hand in the West. But even if the standards of dress will remain, both Western society and Islamic women will be better off when more Islamic women become professionals. Reasonable, safe accommodations (if these are possible) that help pull more Islamic women into medicine are thus better than refusing all accommodations and thus pushing some Islamic women away.

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Yes, They Can Trace Yahoo E-mails: That and other lessons were learned by some pretty clueless college students who stole rare books from a college library and tried to sell them to the Christie's auction house. The fact section of the opinion, written by Judge Batchelder, is hilarious. Thanks to Howard for the link.
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Monday, February 4, 2008

Assessing McCain:

In two insightful posts, University of San Diego law professor Michael Rappaport argues that John McCain is very bad on a wide range of policy issues and that pro-limited government conservatives might well be better off with a Democratic candidate winning this fall than with a President McCain.

I agree with most of the points Michael makes in his first post. On two of the issues he raises (immigration and torture/interrogation) my position is much closer to McCain's than Michael's is. I also give McCain great credit for opposing Bush's 2003 Medicare prescription drug plan - the biggest of all the Bush Administration's domestic policy boondoggles. He was one of only nine GOP senators to buck the administration on that issue.

I therefore give McCain higher grades on policy than Michael does. Nonetheless, the overall picture Michael paints is far from a positive one. McCain seems less of a big government conservative than Bush has turned out to be. But the difference is more one of degree than kind. On judges, I agree with Michael's suspicions that McCain might appoint moderate to liberal "stealth" nominees to the Supreme Court in order to preserve his beloved McCain-Feingold campaign finance restrictions. I'm not certain about that, but it's a real possibility.

I am much less convinced by Michael's argument that the cause of limited government will be better off in the long run if the Democrats win. Michael argues that, just as Jimmy Carter's failures in office paved the way for Ronald Reagan, the shortcomings of a Hillary Clinton or Obama administration will pave the way for a Reaganite resurgence. By contrast, if McCain wins, the Republicans will end up adopting his pro-government agenda if he is politically successful or will be blamed for his shortcomings if he fails in office.

Maybe Michael is right. But Carter failed to win reelection in large part because he was the victim of circumstances outside his control: a severe recession and the emergence of foreign policy crises in Iran and Afghanistan. Had he been luckier and a more skillful politician, he might not have lost in 1980. In all three cases, Carter probably made a bad situation worse. But his bumbling would have been much less noticeable to the electorate if he had been blessed with better circumstances. By contrast, the next president will probably enjoy a favorable economy two or three years into his term (once the current pseudo-recession ends). And we don't yet know how international events will play out. When you consider that Obama and Hillary are both more skillful politicians than Carter, and that Obama at least is highly charismatic, it's quite possible that a Democratic president will enjoy considerable political success. Unlike Michael, I am not convinced that the Democrats will repeat the political mistakes of Bill Clinton's first two years in office. They (especially Hillary) might well have learned from those errors and be more effective in enacting their agenda this time around.

The Dems might turn out to be a political success even if they adopt policies that cause great longterm harm (as I think is quite likely). The harm may not yet be apparent to voters in 2012 or even 2016. Even when it does become evident, rationally ignorant voters might lack the knowledge necessary to connect it to the big government policies enacted by the Democrats years earlier.

Finally, even aside from McCain's strengths and weaknesses as an individual, there are great benefits to divided government. As I argue here and here, it's one of the best ways of limiting the growth of government power. Since the Democrats are almost certain to retain control of both houses of Congress and Mitt Romney has almost no chance of winning the general election, John McCain may be the only hope for maintaining divided government in 2008.

Maybe Michael is right to suppose that things will go better in the long run if the Democrats win than if McCain becomes president. But I have even more doubts about that scenario than I do about McCain himself. McCain is very far from ideal. But his election might well be a lesser evil than the available alternatives.

UPDATE: I have deliberately avoided discussion of the war in this post. If you support a quick withdrawal from Iraq, Obama is probably your best bet, followed by Hillary Clinton (though neither is likely to withdraw quite as fast as many liberals want). My own view on Iraq is somewhat similar to McCain's, who gets credit in my book for favoring a "surge" long before Bush came around. However, I don't really have anything to say about the issue that hasn't already been said by others with greater expertise.

UPDATE #2: Michael Rappaport responds to this post here. I lack the time to respond in detail and in any event our views are not that far apart. However, I will briefly respond to Michael's claim that the usual benefits of divided government won't happen under McCain because "McCain enjoys his maverick, bipartisan reputation and will only be too happy to sign many of the Democrats’ bills." It is true that McCain probably would sign some Democratic bills that Michael and I would both find objectionable. However, he would be unlikely to cave in to the Democrats on a wide range of important issues, including spending and foreign policy. The key comparison is not between divided government and some ideal state, but between divided government with McCain and united government with the Democrats controlling the presidency and both houses of Congress. Given the Democrats' likely agenda, the latter scenario could well lead to a major expansion of government that will be difficult to undo even if the Republicans return to power in 2012 or 2016.

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McCain & Romney On Judges:

The Federalist Society has posted statements by the two leading GOP candidates -- John McCain and Mitt Romney -- on judicial philosophy as part of their "Originally Speaking" on-line debate series here. According to the site, they will add contributions by the other remaining GOP candidates and the Democratic contenders as they are received.

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Voting for McCain Tomorrow:

It's been hard for me to choose, but I've decided to vote for John McCain in tomorrow's California primary.

I'd vote for either of the Republican candidates in November, and I have some reservations about both. Still, I think that McCain is likely to be very good on defense and on spending, and I think he's eminently electable (not the only criterion, but a very important one). I'm also moved by the views of many lawyers and scholars I know and respect as serious conservatives — such as Ted Olson, Miguel Estrada, John McGinnis, and Stephen Calabresi — whose support suggests that McCain will do a very good job on judicial appointments. I'm also glad to be in the good company of my cobloggers Orin and Dale.

This having been said, I disagree with McCain about restrictions on campaign-related speech, and I'm uncomfortable with his occasional streak of economic populism. But the fact is that no Republican candidate is likely to be a perfect match for my views; and I think that on balance he's the one I'd prefer as my party's candidate this November. So that's one reporter's opinion. We'll see what others think tomorrow, and during the rest of the campaign.

Related Posts (on one page):

  1. Voting for McCain Tomorrow:
  2. I'll second that motion:
  3. Going With McCain:

Upcoming Talks: I have updated the times of my talk on "Constitutional Cliches: Does Trite Make Right?". My talk today at the University of Cincinnati is at 4:30pm. On Thursday of this week, I am speaking at Loyola of New Orleans at 12:30pm and at Tulane at 4:00pm.

Future speaking dates are:

Saturday, February 23: Students For Liberty Conference (NYC)

Wednesday, March 12: Constitutional Cliches, University of Arizona

Thursday, March 13: Curing the Drug Law Addiction: The Harmful Side Effects of Prohibition, UCJC Conference: Drugs, Addiction, Therapy, and Crime, University of Utah, Salt Lake City

Friday, March 14: Constitutional Cliches, Las Vegas Federalist Society Lawyers Chapter

Friday, April 4: Constitutional Cliches, Vanderbilt, Nashville

Saturday, April 5: The Golden Mean Between Dan and Kurt: A Moderate Reading of the Ninth Amendment, Drake Law School conference on The Forgotten Constitutional Amendments, Des Moines.

Monday, April 7: Constitutional Cliches, University of Virginia, Charlottesville

Wednesday, April 16: Constitutional Cliches, University of Pennsylvania & Widender University (Delaware).

Friday, April 18: Constitutional Cliches, University of Connecticut

UPDATE: Bad link to Drake Symposium fixed.

Related Posts (on one page):

  1. Upcoming Talks:
  2. Constitutional Clichés:
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[Michael Abramowicz, guest-blogging, February 4, 2008 at 8:05am] Trackbacks
The Biggest Prediction Market of the Year:

The graph is of the last hour of the Giants' season, as viewed through the Tradesports.com prediction market.

This Giants fan thanks Eugene and the rest of the Conspiracy for letting me guest-blog the past week about my book Predictocracy and about prediction markets. I hope that I have persuaded you at least that prediction markets have the potential to be useful inputs into our public and private decision-making processes.

Meanwhile, I hope to have encouraged at least a few of you to consider writing about the possible use of prediction markets in decision-making institutions. My future research will mostly take me away from prediction markets, but I would be happy to chat with anybody (including, of course, law students) who are interested in doing work in this area. I have many further ideas for applications, experiments, and analyses that did not make it into the book, and would enjoy hearing about your own ideas.

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Calabresi & McGinnis on McCain & Judges:

Northwestern law professors Stephen Calabresi and John McGinnis make the case for McCain in today'sWSJ. Focusing specifically on judicial nominations, they argue that electability should be a conservative's paramount concern.

the gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the "Living Constitution" -- in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Calabresi and McGinnis suggest nominating Romney would risk a "Goldwater-like" electoral catastrophe, and that conservatives opposed to McCain are making the perfect the enemy of the "very good."

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Barack Obama and the Harvard Law Review:

Barack Obama was the first African-American president of the Harvard Law Review. The NY Times carried a story about this in Februrary 1990, which included a few quotes from Obama:

"The fact that I've been elected shows a lot of progress," Mr. Obama said today in an interview. "It's encouraging." "But it's important that stories like mine aren't used to say that everything is O.K. for blacks. You have to remember that for every one of me, there are hundreds or thousands of black students with at least equal talent who don't get a chance," he said, alluding to poverty or growing up in a drug environment... On his goals in his new post, Mr. Obama said: "I personally am interested in pushing a strong minority perspective. I'm fairly opinionated about this. But as president of the law review, I have a limited role as only first among equals." Therefore, Mr. Obama said, he would concentrate on making the review a "forum for debate," bringing in new writers and pushing for livelier, more accessible writing.

For what it's worth, a quick look at volume 104 of the Harvard Law Review suggests that not surprisingly given the genre, Obama didn't succeed in publishing "livelier, more accessible writing." But with regard to "new writers," the extremely prestigious Supreme Court term Foreword that year was written by Robin West, now of Georgetown, but who was then a professor at University of Maryland. Prof. West, moreover, didn't have the typical pedigree, having graduated from University Maryland Law School (yes, in theory completely irrelevant to her credentials to write the Foreword, but if I know my elite law review editors, something that gave many of them significant pause.) More typically, the Review invited Guido Calabresi (dean, Yale), Kathleen Sullivan (professor, Harvard), and Morton Horwitz (professor, Harvard) to write the next three years' Forewords. Prof. West is a very prolific, influential scholar, and was an inspired choice from outside the usual group of elite law school professors the HLR would consider. Call this the Obama effect, perhaps, though I'd be interested in hearing from readers who were editors that year about his effect on HLR culture.

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Sunday, February 3, 2008

One Last Political Ignorance Post (For Now):

This will probably be the last political ignorance post for at least a few days, as I must return to other work. However, I do want to give readers some links that may help address questions some of you have posed.

In this 2004 paper I compile some of the extensive evidence showing that the majority of citizens lack even very basic knowledge about the parties, the structure of the political system, and major issues. The findings are consistent with a lot of previous research on the subject. In that paper and in this article, I try to explain why standard "information shortcuts" such as relying on political parties and opinion leaders are not enough to offset such deep and pervasive ignorance. I also relate actual levels of voter knowledge to the demands of different normative theories of democracy and explain why the actual levels fall short. They even fall short of the demands of relatively forgiving theories such as "retrospective voting" and Joseph Schumpeter's approach. People can disagree about how much knowledge voters should have. But it's very hard to show that the persistently abysmal knowledge levels that exist in the real world are anywhere close to adequate, even under a fairly weak undemanding conception of democratic participation.

Scholars such as Scott Althaus and Bryan Caplan (both cited in my last post) show that political ignorance has a major impact on people's views on major public policy issues. In turn, the public's views have an important impact on the policy choices made by elected officials. While we cannot foresee all the difference that a better-informed electorate would make, it would likely be quite substantial. In my recent paper on post-Kelo eminent domain reform, I show how political ignorance can have a profound impact on policy even with respect to an issue where the vast majority of citizens come down on one side and have fairly strong opinions. The impact on other, more complicated, issues may well be even greater.

I don't believe that political ignorance is the only flaw in modern democratic government. But it's a quite important one that has profound effects.

NOTE: I may not have time to look at the comments to this post, and may therefore not respond to as many of the points and questions raised there as I might have otherwise.

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Super Bowl Open Thread: Quite an ending, eh? Leave your thoughts on the game in the comment thread.
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An Arrested Development Movie?

Maeby!

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Academics' Political Views and the Impact of Political Ignorance:

Various commenters on my posts on political ignorance raise the issue of academics' political views (which, of course, tend to be very left-wing relatively to the general population). Ironically, liberal commenters claim that this proves that increased political knowledge won't make people more libertarian, while some conservative ones claim it proves that political knowledge doesn't actually lead to better judgment on political issues (because the supposedly highly knowledgeable academics hold what these commenters see as foolish views).

Both claims are flawed because both implicitly assume that academics are a representative sample of well-informed voters. This is simply not true. If you take the top 5% of the electorate in terms of political knowledge, or even the top 1%, academics will be only a small fraction of the total. Business executives and high-ranking military officers also probably have vastly more political knowledge than the average citizen, yet their views are on average well to the right of those of both academics and the general public (for military officers' views, see here). Academia is a profession that disproportionately attracts liberals and leftists; whether or not this is the result of discrimination against nonliberal candidates for academic jobs, it results in a highly unrepresentative sample.

If we want to know the true impact of political knowledge on political opinions, it's necessary to test that impact while controlling for other variables in a randomly selected sample of adults. Political scientist Scott Althaus has actually done this in his book Collective Preferences and Democratic Politics. He shows that, controlling for a variety of demographic and other variables, increased knowledge makes people more socially liberal and economically conservative (i.e. - more libertarian). That does not mean that high political knowledge necessarily turns you into a libertarian. Far from it. It does mean that it is likely to make you more libertarian than you would be otherwise. The pattern is not completely consistent across all public policy questions. For example, greater knowledge reduces opposition to taxation (I suspect because antitax arguments are less counterintuitive than the protax ones). But it does hold true across most issues.

Finally, low knowledge levels are just one of two major negative effects of rational political ignorance. The second is poor evaluation of the information that we do possess, what economist Bryan Caplan has called "rational irrationality." As I discuss in this article, the fact that there is little incentive to acquire political information for the purposes of becoming a "better" voter implies that most of the information people do learn is acquired for other purposes. Many of these purposes - such as entertainment value and confirmation of preexisting prejudices - are antithetical to rational, unbiased evaluation of evidence. In my article, I explain how rational irrationality may account for the fact that most citizens tend to discount information that goes against their preexisting views and only read and watch those political media that reinforce those views, while ignoring opposing positions. Such behavior is inexplicable if the goal is to get at the truth in order to be a better voter; it is perfectly rational, however, if truth-seeking is not the primary objective.

Academics, business executives, and other relatively well-informed voters know a lot more about politics than the average citizen. But they too usually have little incentive to do a good job of evaluating the facts they know. Indeed, rational irrationality in evaluating political information may be even more common among academics than average citizens (though I must stress that we don't yet have a study testing this proposition). Most academics have a lot more emotional commitment to their political views than do average citizens, and therefore may find it even more difficult to assess opposing views in an unbiased way.

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Constitutional Clichés: I am on the road this week speaking about "Constitutional Cliches: Does Trite Make Right?" at Federalist Society sponsored talks. On Monday at noon, I will be at the University of Kentucky, and in the afternoon am speaking at the University of Cincinnati at 4:30pm. (I think the talk is at 4:30pm 3:00pm but am not sure.) On Tuesday at noon, I will speak at Northwestern University School of Law in Chicago. On Thursday, I will be speaking at 12:30pm noon at Tulane and in the afternoon at Loyola of New Orleans and at 4:00pm at Tulane. Come say hi and let me know you are a Volokh reader. Here is the abstract for my talk:
Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” “stare decisis” and the “living Constitution” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and although each could mean something again, in current debates all have become trite and largely devoid of substantive. In short, they have become clichés.

In this talk, I explain why these clichés should be abandoned even in casual conversation. Somewhat surprisingly, it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.

Related Posts (on one page):

  1. Upcoming Talks:
  2. Constitutional Clichés:
31 Comments

Sunday Song Lyric: Bernard Seigal, better known as Buddy Blue, had a brief but bright recording career before his untimely death in 2006. Among other groups, Buddy Blue recorded with the alt-rock/country band, the Beat Farmers, a cult favorite.


One song Beat Farmer fans particularly like, and which has fun lyrics to boot, is "Gun Sale at the Church." Here's a taste:

Well let's pack up the kids
and take a break, get away
leave the hustle and bustle
of living from day to day
and I know that the crime
in the city is getting worse
So I'm going on down to
the gun sale at the church . . .

Well we'll ask the lord to
forgive us for all our sins
and we'll look at the latest in
gold plated firing pins.
The rest of the lyrics are available here, and here is a live performance.

[H/t: Andrew Morriss.]

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Why Concern About Political Ignorance isn't Paternalistic:

Some VC commenters and other critics suggest that my concern about political ignorance is a form of paternalism. After all, shouldn't the voters have the right to decide for themselves how much information they need? If they vote on the basis of ignorance, what right have others to complain? And what reason is there to reorganize political institutions so as to reduce the impact of political ignorance? After all, isn't it just a matter of individuals exercising their right to choose?

I think John Stuart Mill gave the best answer to this argument in Chapter 10 of his classic work Considerations on Representative Government:

The spirit of vote by ballot- the interpretation likely to be put on it in the mind of an elector- is that the suffrage is given to him for himself; for his particular use and benefit, and not as a trust for the public. . . This false and pernicious impression may well be made on the generality, since it has been made on most of those who of late years have been conspicuous advocates of the ballot....

Mr. [John] Bright [a prominent 19th century British Liberal political leader] and his school of democrats think themselves greatly concerned in maintaining that the franchise is what they term a right, not a trust. Now this one idea, taking root in the general mind, does a moral mischief outweighing all the good that the ballot could do, at the highest possible estimate of it. In whatever way we define or understand the idea of a right, no person can have a right (except in the purely legal sense) to power over others: every such power, which he is allowed to possess, is morally, in the fullest force of the term, a trust. But the exercise of any political function, either as an elector or as a representative, is power over others.

Mill was a staunch opponent of paternalism; after all, he was also the author of On Liberty. But he was nonetheless extremely concerned about the potential harm caused by widespread political ignorance in a democracy. He recognized that voting is not just an individual right, but the exercise of "power over others." Government officials elected by the ignorant and acting on their policy preferences rule over all of us, not just the ignorant voters themselves. Elsewhere in Considerations, Mill argued that the impact of political ignorance should be offset by giving extra votes to the most highly educated portions of the population. We can disagree with his proposed solution to the problem of ignorance. But it's much harder to dispute his characterization of the problem itself.

There is also a second reason why it is not paternalistic to worry about political ignorance and advocate measures to reduce its impact. Widespread ignorance about politics is the result of a collective action problem. An individual voter has little incentive to learn about politics because there is only an infinitesmal chance that his well-informed vote will actually affect electoral outcomes. Political ignorance is therefore perfectly rational individual behavior, but leads to dangerous collective outcomes. It is a classic example of a public goods problem. Economists have long recognized that outside intervention may be needed to provide public goods. Such intervention is not necessarily paternalistic because it may actually be giving the people that which they want but lack the incentive to produce for themselves through uncoordinated individual action. In the same way, it isn't necessarily paternalistic to advocate the restriction of air pollution. Individual citizens and firms may produce more air pollution than any of them actually want because they know that there is little to be gained from uncoordinated individual restraint. If I as an individual avoid driving a gas-guzzling car, the impact on the overall level of air pollution will be utterly insignificant. So I have no incentive to take it into account in making my driving decisions even if I care greatly about reducing air pollution. Widespread public ignorance is, similarly, a type of pollution that infects the political system rather than our physical environment. Unfortunately, it's much harder to prevent.

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