Saturday, February 23, 2008Media miscoverage of the role of man-made chemicals in disrpupting human or animal reproduction:
That's the topic of my media column in today's Rocky Mountain News. The column also expresses skepticism about the benefits of Gannett buying Colorado's leading college newspaper, about media coverage of Obama and Clinton, and about Maureen Dowd. More on Scott v. Harris: A Reply to Kahan, Hoffman, and Braman:
A few weeks ago, I was debating the very interesting Kahan/Hoffman/Braman article on Scott v. Harris here at the blog. First, I wrote up a critique of the article; then, KHB wrote up a response. I never finished my reply; I wrote half of it, but left that half unposted. Last week I ran into Don during a faculty event and I mentioned this to him, and he expressed interest in hearing more. In that spirit, here are my better-late-than-never (I hope!) reactions to KHB's response.
I want to focus on two arguments that KHB make in their response. The first is that the Supreme Court did characterize the car chase in lots of different ways, which then provides KHB with many different ways of testing people to see if they disagree with the Court's view of the facts: Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris’s driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 (“the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury”); id. at 1778 (“it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians ..., to other civilian motorists, and the other officers”); id. at 1779 (“The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise”).As I understand KHB, the diversity of statements that the Court makes justifies assessing the sample's view of whether they agree on these different variables suggested by the Court's opinion. I look at this differently. True, Justice Scalia says a lot of things about the car chase that go beyond applying the facts to the law. But what's the relevance of these statements? I doubt they have any. As we know, Justice Scalia can be prone to exaggeration. Given that, I read the various claims that Scalia makes about the car chase as just Nino being Nino. Saying the car chase is dangerous couldn't be enough for Scalia; he would have to say it was "a Hollywood-style car chase of the most frightening sort." I don't see this as "the Court's" conclusion, but rather as the reflection of the writing style of one particular Justice. (This is just speculation, but I wouldn't be terribly surprised to learn someday that Scalia's first draft was more over-the-top, and that some of the other Justices joined only if Scalia took out some of the more extreme statements.) As I see it, what really matters is the legal line the Court drew and the Court's decision that this case fell on one side of the line. Assessing whether members of the public agree with Scalia's colorful characterizations is interesting, but I'm not sure it sheds a lot of light on the substance of the Court's decision in Scott v. Harris. The second point KHB make is that asking participants to comment on the reasonableness and relative culpability of Scott's conduct helps tell us whether the Justices properly applied the Fourth Amendment: It’s true, as Orin notes and as we discuss in the paper, that these issues wouldn’t be submitted to a jury under the apparent, bright-line rule that Justice Scalia announced: “A police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” 127 S. Ct. at 1779. But Justice Scalia’s justification for such a rule was that there was only one reasonable way to assess the balance of risks in a case like Scott. We wanted to find out whether ordinary people—whose judgments presumably are part of the reasonableness calculus—would agree. Our finding that in fact members of diverse subcommunities balance the risks differently (from one another and from the Court majority) raises the normative question whether the Court should have formulated a test that bars a jury from considering this matter.That's an interesting response, but it's really about KHB's substantive vision of the Fourth Amendment — A substantive vision that the Supreme Court has not endorsed, and that I think would pretty dramatically transform the Fourth Amendment if it were adopted. The vision seems to be of a Fourth Amendment as reflection of popular will, as a command for the police to act as the people would want them to act. If everyday people would balance the risks a particular way, the thinking goes, then the Justices should try to balance it that way too — of if they can't do it, they should get out of the way and let juries do this. In effect, this approach uses juries in lieu of legislation. It seeks to have juries evaluate police conduct and reflect the will of the people through their judgments. This certainly is an interesting approach, but I think it's quite different from the approach of the modern Fourth Amendment. The modern Fourth Amendment is premised on judges and Justices imposing rules on the police; the courts set the rules, not the people. Indeed, juries almost never play a role in the Fourth Amendment. Most Fourth Amendment issues come up in the setting of motions to suppress that are decided by judges. True, the doctrine often relies on concepts such as "reasonableness," but it is reasonableness as measured by the judges not by the public. In that way, the judges create a set of rules that the police must follow in criminal investigations. Now, maybe the Fourth Amendment we have is problematic; perhaps the Fourth Amendment should be overhauled. Perhaps we should have a more people-focused set of rules — either through more civil actions and jury trials or more reliance on legislation — than the judge-focused rules we have now. But that argument seems pretty distinct from the "cultural cognition" concerns that I had understood to be the point of KHB's paper. I sense that there is a mixing of arguments in the paper that needs to be more clearly separated: There's one argument about the need for self-awareness in construing evidence, and another argument about a new substantive vision of what the Fourth Amendment should become. The two are different, and I tend to think that the paper too readily treats the latter as a sort of subset of the former. Finally, to the extent the paper reflects an interest in increasing the amount of jury participation in Fourth Amendment cases, I think it's very important to consider the role of qualified immunity doctrine. Consider how these cases play out. Fourth Amendment civil cases pretty much always litigate the merits and qualified immunity together. The plaintiff brings a Fourth Amendment claim, and the defendant asserts the qualified immunity defense and then moves for summary judgment. Under Saucier v. Katz, the court has to accept the allegations of the plaintiff as true and first resolve the Fourth Amendment issue. If the court finds that the alleged facts would amount to a Fourth Amendment violation, it then needs to decide if the issue was close or really very obvious. If the issue was close, qualified immunity kicks in, the suit is dismissed, and the case never gets to a jury. Cases only go to a jury if the alleged facts very clearly involved a Fourth Amendment violation. The case then goes to trial to see if the plaintiffs can prove those alleged facts. Unless I'm mistaken, KHB do not discuss qualified immunity beyond their discussion of the facts in Scott v. Harris. But I think the qualified immunity doctrine already blocks Fourth Amendment civil cases from playing the role that KHB want the Fourth Amendment to play (and that they criticize the Court for interrupting). To oversimplify, qualified immunity keeps Fourth Amendment issues away from juries unless it is pretty clear that the police violated the plaintiff's rights. Not only does this sharply limit the jury's role, but it also means that the jury's role hinges on the clarity of Fourth Amendment law. The jury only gets to play a role if the courts have clearly settled the law, making the rights violated "clearly established." To the extent that KHB want juries to have a role in establishing the law, qualified immunity prevents this from happening: juries don't even get the cases unless the law has been established clearly first by the courts. In my view, the current role of qualified immunity doctrine reiterates my sense that there is a lot of normative Fourth Amendment theorizing going on in KHB's paper that needs to be more clearly acknowledged. For the jury to play the role that KHB want — or at least, that I think they want, to the extent I understand their aims correctly — I would think that modern qualified immunity law would need to substantially reworked for the vision to work. Whether you think this is a good idea or a bad one, at this point we're talking about a lot more than how to construe a videotape. Anyway, those are my thoughts. It's always hard to return to half-written comments and to try to finish them in a coherent way, so I hope the comments made at least some sense. Once Blighted, Always Blighted:
One of the many serious problems in current eminent domain law is that many states have definitions of "blight" so broad that virtually any area can be declared blighted and thereafter subject to condemnation whenever local governments want. I have often written about this problem (e.g. - here). A less-recognized, but also serious problem is that once an area is declared "blighted," many state laws allow the designation to persist for decades. Blight designations - and the associated power to condemn property - are allowed to persist even if local conditions change and even if there is no proof that condemnation is actually necessary to eliminate any blight that remains. As I discuss in my paper on recent eminent domain reform efforts, California is one of many states with a broad definition of blight that allows condemnation of almost any property. However, back in 1993, the state legislature enacted a modest reform law that set a deadline of 40 years or January 1, 2009 (whichever comes later) for the completion of blight redevelopment plans begun before 1994. After the deadline, local governments could not condemn property in the "blighted" area without first getting a new blight designation (which in California is usually easy to do). Indeed, the 1993 law was enacted at the behest of California local governments themselves in order to " stave off more radical" reform efforts. However, even this modest restriction is now unacceptable to California planning bureaucrats and the private interests that benefit from taking over condemned property in "blighted" areas. As Dan Walters of the Sacramento Bee reports (hat tip: Tim Sandefur), they are trying to get the state legislature to pass a bill to extend the deadline in the 1993 law, so that the over forty year old blight "redevelopment" plans that expire on January 1, 2009 will still be able to license condemnation after that date. I don't think you have to be a development expert to realize that a redevelopment plan that has failed to eliminate "blight" even after over forty years of trying is probably not going to succeed now. Indeed, long-lasting blight designations are likely to impede development more than promote it. After all, people are likely to hesitate to invest their money in property that could be condemned at any time. Endless blight designations are therefore unlikely to actually help develop communities - even those that are genuinely "blighted" as opposed to merely designated as such under expansive state laws. But permanent condemnation authority is a treasure trove for local politicians. They can use it to transfer condemned property to influential developers and other interest groups that can help them stay in power. All Related Posts (on one page) | Some Related Posts:
Geographical Gun Control Research Project:
David Bernstein recently noted Illinois State Senator Barack Obama's 1999 proposal for a federal law against licensed firearms dealers operating within five miles of a school or park. Every town I've ever visisted which has more than a few dozen inhabitants has either a school or a park. Hypothesizing that the ban would apply to city parks (e.g., Central Park in New York City) but not to National Parks, pick a geographical region, and describe where a licensed firearms dealer could operate. Or pick a geographic point (e.g, Houston)and identify how far a peson would have to drive in order to get to the closest point where a gun store could legally be located. Extra credit for illustrative maps. Friday, February 22, 2008Self-Selection and Ideological Imbalances in Academia:
A recent paper by Matthew Woessner and April Kelly-Woessner argues that much of the massive ideological imbalance in academia may be due to self-selection. Theis survey evidence shows that conservative undergraduates are less interested in doing original academic research and developing a "philosophy of life" than liberal ones, while showing greater interest than liberals in making money and raising a family. The authors claim that these differences in attitude are likely to lead liberals to self-select into academia and conservatives to self-select against it. Woessner and Kelly-Woessner emphasize that these self-selection arguments are not incompatible with discrimination-based explanations. Indeed, one of their other interesting findings is that conservative undergraduates have, on average, weaker mentoring relationships with faculty members (who at most schools are overwhelmingly liberal) even after controlling for the students' academic records. Obviously, faculty mentoring at the undergrad level is often crucial for facilitating later efforts to get into a top grad school. Nonetheless, the authors argue that their attitudinal variables probably do account for a large portion of the ideological imbalance in academia. I agree that self-selection probably plays an important role. It would be a serious mistake to attribute the ideological imbalance in academia solely to discrimination, or even primarily. But I am somewhat skeptical about the particular variables emphasized by the Woessners. If interest in making money were a crucial variable in steering conservatives away from academia, one would expect their representation to be much higher in high-paying academic disciplines such as law, where faculty members routinely make six figure salaries and often have extensive consulting opportunities. Yet the ideological imbalance in legal academia is very large and fairly similar to that in other academic fields. In my view, a focus on raising a family should make academia more attractive to conservatives rather than less. Relative to other professional jobs, academic careers are actually quite family-friendly. Unlike most other professionals, professors have a high degree of control over their schedules. They can also do a much higher proportion of their work at home, which makes it easier to spend time with kids. Universities also tend to have extremely generous family leave policies for faculty. Moreover, universities often give substantial tuition discounts to children of their faculty - an important benefit for social conservatives with large families. Some schools even subsidize private secondary school tuition for faculty children. I'm not saying that the academic life is a family idyll. But it's closer to being so than most of the available alternatives for ambitious undergrads. It's true that the interest in starting a family is negatively correlated with interest in pursuing a PhD in the authors' regression model. I suspect, however, that this is a statistical artifact stemming from the fact that those conservatives with the strongest interest in raising families are also more alienated from the dominant academic ideology than even other conservatives are (perhaps because they are more likely to be highly religious and belong to theologically traditionalist denominations). On the other side of the ledger, I'm skeptical that wanting to develop "a meaningful philosophy of life" really has much to do with wanting to be an academic. And, in the authors' regression model (Appendix A), this indicator is only a weak (though statistically significant) predictor of interest in pursuing a PhD. Like other studies of academic ideology, the Woessner and Kelly-Woessner paper also suffers from the failure to consider libertarians separately from conservatives. As I discuss in this post, libertarians are about 10-15 percent of the general population and are likely to be disproportionately represented among non-liberals likely to be interested in pursuing academic careers. Relative to conservatives, libertarians are about 20% more likely to be college graduates (see Table 10 in the linked paper) and threfore more likely to be potential candidates for academic jobs. Although I'm not aware of survey evidence on this point, I strongly suspect that libertarians are closer to liberals than to conservatives in their interests in doing research, developing a philosophy of life, and raising families. Yet libertarians are almost as underrepresented in academia as conservatives are. Certainly, they are nowhere close to constituting 10 percent of faculty in any field other than economics. It is possible that libertarians are more interested in making money than liberals are; the claim is often made, though I have yet to see any systematic study that proves or disproves it. But even if this stereotype is true, it doesn't explain why they aren't better represented in law and other high-paying academic fields. UPDATE: As I implied in the original post, I don't think that either the ideological imbalance in academia or the flaws of some of the Woessners' self-selection arguments prove that there is extensive ideological discrimination. Indeed, I think the underrepresentation of conservatives in academia is partially due to self-selection factors (though probably not the ones this paper focuses on). On the other hand, there is significant evidence that discrimination plays an important role as well. See this post for links. Related Posts (on one page):
Intellectual Diversity in Academia--Discrimination v. Self-Selection:
A recurrent question regarding the dominance of left/liberal perspectives among university professors is the extent to which this lopsidedness arises from discrimation against those with non-left viewpoints that excludes them from the academy versus self-selection by conservatives and libertarians out of academia and into other professions, such as law and business. The issue has arisen again in light of a new study by Woesner and Kelly-Woessner "Left Pipeline: Why Conservatives Don't Get Doctorates." The paper is a chapter in a forthcoming book by the American Enterprise Institute on "Reforming the Politically Correct University." The papers from the conference are available here. I've read a number of the papers posted there and they are very interesting. The paper is also discussed on The Economist's Voice here. There is also a story in the Chronicle of Higher Education on the study here. Dan Klein, who has written extensively on this issue, has written up a comment on the Chronicle story that he has asked me to post on his behalf (I do so below). Dan raises one concern that I share about the study. It is difficult to sort out the self-selection from discrimination hypotheses because the decisions on what subject to study will be shaped at least in part by one's perception about the likelihood of success in a given area of study. Thus, for instance, if a scholar perceives that one occupation will subject her to discrimination that will limit her career accomplishments while another would not, then at the margin many are going to pursue the one where that is not the case. And, in fact, prior studies have found that the ideological disparity is greatest in those fields with the most subjective standards (such as English and History) and the gap is narrowest in those fields such as economics and sciences that are generally perceived as less subjective. I have also seen it asserted (although I can't find the discussion right now) that within political science itself those who do use more formal modeling and quantitative methodologies is much more equal in ideological orientation than those who use "softer" techniques. Dan's primary point of emphasis in his comment, as I understand it, is that this data on the self-seleciton hypothesis doesn't account for his finding that among those who have already received their PhD "conservatives" are more likely to end up outside academia than liberals. So that, for instance, taking the pool of those who have already received a PhD in History, those who are conservative are less likely to hold an academic position than a similarly-situated liberal. Such disparities, Klein argues, are unlikely to reflect self-selection because those who pursue a PhD in History (for instance) have implicitly manifested an interest in being a professor, regardless of ideological orientation. Since Dan doesn't have his own blog and in the interest of getting his argument out there for debate I reproduce his full comment on the Chronicle story. With respect to Dan's negative view of the Chronicle, I don't read it very much so I don't express any independent view on whether I agree with his opinions. I do, however, certainly share Dan's view that Inside Higher Ed is far more independent of the higher education establishment than the Chronicle and is much more insightful in its coverage. Here's Dan's comment (it is fairly long, so I've placed a good portion of it under hidden text)
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Mourning Miranda:
Berkeley lawprof Charles Weisselberg has posted a fascinating new draft article, Mourning Miranda, on how the police in California currently implement the Miranda warnings. Weisselberg looks closely at how police officers in California are trained to conduct interrogations, and he concludes that the police interpret Miranda to let them do many of the things that the U.S. Supreme Court found objectionable in 1966 that led the Court to create the Miranda framework. Although Weisselberg has long been a noted defender of Miranda, he finds himself concluding that the Miranda experiment has been a failure:
. . . Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation.I hope to post some substantive reactions to Weisselberg's provocative and important new paper when I get the chance. In the meantime, if you're interested in criminal procedure generally or Miranda specifically, definitely check this one out. Our Task Is Vast:
From xkcd (via Language Log):
Mouse-over text: "What do you want me to do? LEAVE? Then they'll keep being wrong!" Change and Originality:
"It’s not change you can believe in, it’s change you can Xerox," Hillary Clinton said, referring to Obama's copying material from Deval Patrick. Well, that sounds like a cute dig — but does it make sense? People can believe in something just fine even if it's copied from someone else. The merits or the rhetorical power of a speech are not dependent on its originality. (True, if something is so often repeated that it becomes cliché, it may become less inspirational, but there's a big gulf between entirely original and cliché.) In fact, when an idea or a line has been tested by someone else first, that can sometimes help demonstrate its substantive or rhetorical quality. Dan Drezner also points out that some of Hillary's own rhetoric seems to be closely borrowed from others. (Thanks to Megan McArdle, guest-blogging at InstaPundit for the pointer.) The inconsistency is telling, and amusing — but the more important point is that even when we want change from politicians, we shouldn't demand originality, a virtue in scholars and novelists but generally not in political leaders. "Discovering Versus Making Law":
Thoughts from my colleague Stephen Bainbridge. Podcast on Framing Brief in DC v. Heller:
At iVoices.org, I interview Hamline law professor Joe Olson for 44 minutes about the Academics for the Second Amendment brief he co-authored in District of Columbia v. Heller. The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others. The podcast is available in MP3 or streaming format. Thursday, February 21, 2008Law and Politics in Battlestar Galactica:
On Concurring Opinions, lawprofs Daniel Solove, Deven Desai, and David Hoffman have a fascinating interview with Ronald D. Moore and Dan Eick, creators of the outstanding science fiction TV series Battlestar Galactica. The interview focuses on the many interesting legal and political issues the show tackles and will be appearing in several installments over the next few days. As most sci-fi fans know, Battlestar Galactica is a reconceptualization of the 1978 television series of the same name. It focuses on the story of a "rag tag fleet" of human survivors of a devastating Cylon attack on their home planets which has wiped out nearly all of the human race. The show has taken on a wide range of legal, political, and moral issues. The series' mostly left-wing politics are very far from my own. In addition, I have some reservations about the way the show's premise is set up. For example, the "colonial" humans' political system seems far too similar to that of the United States, given that these humans supposedly developed in complete isolation from Earth for thousands of years. Many of the show's moral and political dilemmas seem a bit trivial in a setting where most of the human race has already been wiped out through genocide and the few survivors are in grave danger of suffering the same fate. In such an extreme situation, drastic measures such as the use of torture and suspension of due process are surely justified (assuming that they really are effective in staving off annihalation). The show's attempts to make these questions seem difficult strike me as unpersuasive. The more difficult question, of course, is whether these and similar measures can be defended in the much less dire circumstances we face in the real world. To a certain exent, BSG's creators were boxed in by the scenario they inherited from the original 1978 series; there is sometimes a poor fit between the show's basic premise and the issues they want to explore. Despite these reservations, BSG is one of the best and most thoughtful science fiction TV series of the last 30 years and the Concurring Opinions interview has many interesting insights about the show's treatment of legal and political issues. Related Posts (on one page):
Anonymous Bloggers and Defamation:
My colleague Stephen Bainbridge points to an article about this subject by Betsy Malloy (draft available here). Prof. Bainbridge had earlier praised the Delaware Supreme Court's decision in Doe v. Cahill which held that "before a defamation plaintiff can obtain the identity of an anonymous [blogger from the blogger's ISP] through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion" -- which is to say, "must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question." Thus, if you say that you're defamed by John Doe's comments, and Doe's comments seem to be opinion, or are uncontroversially true, or are otherwise not defamatory, your suit is thrown out before you get Doe's identity. (The court recognized that the subpoena can't be defeated by an argument that the defendant made false factual allegations but made them without "actual malice," or without negligence, as the case may be -- that can't be figured out until the defendant's identity is learned, but whether the statements are mere opinion often can be figured out without unmasking the anonymous blogger.) Bainbridge has just pointed, though, to Prof. Malloy's short article criticizing Doe v. Cahill, suggesting that it's an important argument though he is not persuaded by it; and I wanted to briefly respond to Prof. Malloy's position. As I see it, the problem with Prof. Malloy's piece is its assertion that the Doe v. Cahill standard would wrongly restrict claims based on actually false allegations (as opposed to claims that are mere opinion, which isn't actionable in the first place). Prof. Malloy seems to read the opinion as taking the view that statements in blogs are categorically opinion: "[T]he court argued that a reasonable person would not construe a blog as stating facts." "The court indicated that, because of the misspellings, hyperbole, and general nature of blogs, a reasonable person would likely conclude that they only represent opinions." "Though the court holds '[w]e do not hold as a matter of law that statements made on a blog or in a chat room can never be defamatory,' it seems to characterize blogs in such a way as to make it nearly impossible for plaintiffs to meet their burden." Yet Doe did not go that far -- rather, it concluded that a reasonable person wouldn't construe "the blanket, unexplained statements at issue [in that case]" as stating facts. And the statements involved did sound much like the sort of thing that we'd normally interpret as opinion, especially when it comes from someone who doesn't give supporting evidence, who isn't a psychiatrist, and who is just engaged in anonymous chatter:
That indeed appears like the "subjective speculation" or "merely rhetorical hyperbole" that the court rightly said wouldn't constitute actionable defamation in the first place. Nothing in Doe v. Cahill strikes me as a statement that speech in blogs generally is somehow categorically opinion -- its finding of opinion had to do with the particular statements at issue in that particular case. Likewise, Prof. Malloy argues that "the court's opinion ... fails to provide a plausible judicial outlet for plaintiffs." But this "fail[ure]" stems simply from the defamation law rule that you can't sue over mere insults -- you need to point to statements that a reasonable reader would perceive as factual assertion, not "subjective speculation" or "merely rhetorical hyperbole." If you can point to such statements (as would be the case in many of the hypotheticals Prof. Malloy points to), you are legally entitled to subpoena various records to try to discover the anonymous defendant's identity. But if all you can point to is speculation or hyperbole, then you aren't legally entitled to a judicial outlet (at least in the form of a libel lawsuit), whether or not the speaker is anonymous. Now I have heard some argue that even nondefamatory insults -- which are constitutionally protected against civil liability -- should be subject to an "outing" remedy, through which a court allows subpoenas to be used in order to identify the speaker. I don't think is a sound view, but I can see the arguments for it. But it is a mistake, I think to criticize Doe v. Cahill on the grounds that it protects what would otherwise be actionable defamation on a blog. Advice for One-Ls Looking for Summer Jobs:
This time of year, first-year law students (1Ls) around the country are looking for summer jobs. Many VC readers have been there, or are potential employers, or otherwise have some good ideas on what 1Ls should look for and what to avoid. So here's an open thread for readers to offer their advice -- offer away.
From the Department of Dumb Criminals:
Check out the facts of United States v. Drennon, a new Third Circuit decision:
Drennon robbed Bensalem Bank on October 17, 2005, passing the teller a handwritten note made out on the back of a pay stub bearing his name. He was arrested shortly thereafter.Nicely done. Hat tip: Decision of the Day. New Article on Law Blog Influence:
It's Prof. Jay Brown's Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings, and he's blogging about it this week at The Race to the Bottom — the first posts are here and here. Michelle Malkin Responds to Michelle Obama,
here. Malkin, it turns out, has been really proud of her country many times in her adult lifetime (and rightly so). I should also note Michelle Obama's clarification of her remark, via the AP:
Thanks to Si Frumkin for the pointer to Malkin's piece. Keeping Campus Speech Codes in Perspective:
Thomas Sowell (Real Clear Politics) writes, among other things (emphasis added):
I have often criticized campus speech codes -- but I think we need to put them in perspective: Speech on campuses (at least outside graded class projects, which necessarily must be evaluated based on their content) is generally far more free of institutional punishment than speech in many other places. The obvious example, which probably affects about ten times more people than do campus speech codes, is restrictions on speech in workplaces. In most workplaces (again, university workplaces are in some measure something of an exception) speech is quite seriously restricted. First, it is restricted by the government as sovereign, through the pressure imposed by workplace harassment law. One can argue (as I have long argued) that some such pressure is unconstitutional, and that the laws are in a sense part of the speech code movement, but the laws impose broader formal speech-restrictive pressure than do campus speech codes. Second, workplace speech is also restricted constitutionally by the government as employer, restricting speech that is unduly disruptive, profane, insulting, and the like. Some such restrictions might be unconstitutional under the Pickering test, but many are constitutionally permissible. Third, private employers restrict speech by their employees in a wide range of ways, even setting aside the pressure from harassment law. Some such restrictions may be proper and others improper -- but most employees will tell you that their speech is quite substantially restricted by the threat of employer sanctions, and much more broadly than student speech is restricted by campus speech codes. (As one simple example, which person is more likely to face punishment for his speech: A student who prominently criticizes on campus the faculty or the administration, or an employee who prominently criticizes management while on the job?) So the "Nowhere else in America" strikes me as factually incorrect. We notice campus speech codes, I think, in part precisely because student speech is otherwise so generally protected, both at public and private universities. In my experience, academics -- certainly including liberal ones -- are actually quite tolerant of a wide range of criticism, and generally speaking wouldn't try to restrict the sort of speech that is routinely restricted in workplaces (again, consider most criticism of the institution or even of named faculty members). Against this decades-old tradition of broad student free speech, the restrictions on allegedly racist, sexist, anti-gay, and similar speech stand out as exceptions. I'm glad they stand out, and I'm happy to condemn them as generally unconstitutional (in public universities) and generally improper (in all universities). But we shouldn't let these exceptions blind us to the broader rule, and view campuses as unusually speech-restrictive places, where in reality they are quite speech-protective places. Naturally, I have spoken only of formal restrictions, not informal social pressures stemming from a fear of social ostracism, a fear of public condemnation, and the like. But such social pressures are likewise present in many places (and actually quite proper to a large extent in many places, including universities, depending on the context), including workplaces. Viva el absurdo de profesores izquierdistas:
Via Mike Rappaport at The Right Coast, I discover the following ode to Castro from a self-described "egalitarian liberal."
I have to give Dr. Bertram credit of a sort, though. Even in my wildlest satirical imagination, it wouldn't have occurred to me to praise the heroic resistance of the "middle-aged Cuban construction workers" in Grenada. Now This Looks Like a Serious Plagiarism Controversy:
The Columbia Spectator reports:
The New York Times City Room blog also reports on this, as do other New York newspapers. If anyone can point me to more details on the controversy, I'd love to hear about it. "Where's the Beef?":
The scene: an older, establishment Democratic Senator running for president has lost momentum to a younger, handsome, charismatic Senator who has tapped into the American people's desire for change. The older Senator, once thought to be the inevitable Democratic nominee, is now frustrated, struggling over how to effectively articulate the belief that the younger candidate's success reflects a triumph of style and charisma over substance. Sound familiar? In 1984, Walter Mondale seemed in great danger of losing the Democratic nomination to Gary Hart, until one of his speechwriters borrowed from a popular Wendy's advertising campaign and fed him the line "Where's the Beef?". Hart's campaign never recovered. Sen. Clinton is desperately in need of a similar zinger. What's Wendy's slogan these days? Wednesday, February 20, 2008Federalism and Danforth v. Minnesota:
The Supreme Court's recent decision in Danforth v. Minnesota addresses an interesting issue in constitutional federalism: Is it constitutional for state courts to retroactively apply a newly announced federal constitutional protection for criminal defendants even if the US Supreme Court holds that such retroactivity isn't required by the federal Constitution? In a 7-2 decision, the Court decided that state courts can use state law to apply federal constitutional protections retroactively even if the federal Constitution doesn't require such a rule. Interestingly, the seven justice majority includes the four liberal justices and the three most conservative ones (Alito, Scalia, and Thomas). Chief Justice Roberts and moderate conservative Justice Kennedy dissented. I think the Supreme Court majority got it right. Chief Justice Roberts' dissent argues that the need for "uniformity" in the application of constitutional rights forbids states to do this. However, the federal Constitution sets a floor for individual constitutional rights, not a ceiling. States are free to provide defendants with broader rights than the U.S. Constitution requires. They are also free to interpret state procedural law in a way that applies federal constitutional protections more broadly than the federal courts believe to be constitutionally required. I rarely agree with Justice Stevens on federalism issues. But I think he gets it exactly right in this passage from his majority opinion:
UPDATE: I have corrected my silly mistake of misreading Minnesota as Missouri. I probably got confused because Senator John Danforth is a well known lawyer and former senator from Missouri and I intuitively associate the name "Danforth" with his state even though the Danforth in this case has no connection to the former senator (so far as I know). Related Posts (on one page):
"MagicJack" Customer Service:
A while ago I recommended the "MagicJack" device, which allows unlimited U.S. internet calls from anywhere in the world. I still like the device, but I must report that the company's customer service leaves a lot to be desired [But see updates below]. My daughter pulled my MagicJack out of its USB port, and broke it. I tried to find a customer service address on the MagicJack website, but all I could find was a "techchat." Here's the transcript of the chat:
UPDATE: A Commenter points me to a page that "has a post from a guy who claims to be the 'inventor' and offers help via his e-mail address, Dan@magicjack.com." I wrote to Dan, and got a quick response that a free replacement will be on its way tomorrow. Great, but ... odd that you can contact the inventor and get support, but there's still no customer service email address on the website. FURTHER UPDATE: Dan writes in to say that "there are a number of places to send an email regarding returns or replacements." After playing around without the website for a few minutes, I did find this link for returns and replacements. The main problem is that clicking on either "customer care" or "FAQs", which is where I looked, doesn't help much. Also, it's not at all clear once you find the relevant page whether you can return a defective MagicJack after the 30-day trial period, and the Jim the tech support guy, who was apparently misinformed, told me you could not. Anyway, it's still a great product--I even used it in Israel to make free calls via my laptop to the U.S.--and I'm glad to find out that the customer service issue was primarily a matter of miscommunication and a poorly designed website. The Impact of Castro's Repression on Cuban Health:
As I noted in my last post, Castro's alleged improvements in Cuban health care are often used as a counterpoint to his repressive policies. Maybe he repressed political dissent, apologists claim, but at least he improved health care. For example, CNN urges its reporters to "[p]ease note Fidel did bring social reforms to Cuba – namely free education and universal health care . . . in addition to being criticized for oppressing human rights and freedom of speech." In addition to the more obvious objections to this line of argument, it's also essential to recognize that political repression is bad for health. As I discussed in this post, the Cuban communist government executed some 100,000 political prisoners and imprisoned some 350,000 others in brutal labor camps during the the 1960s alone. This in a population of just 6.3 million as of 1960. Obviously, getting executed is bad for your health. Due to the milder climate, Cuban forced labor camps probably have better health standards than Soviet Gulags. Nonetheless, even a tropical Gulag isn't too good for the health of the inmates. A substantial number of the labor camp inmates likely either died before their sentences were up or had their lifespan substantially reduced as a result of privation they endured. Calculating the odds, this implies that the average Cuban at the start of Castro's regime had a roughly 1.5% chance of being executed by the regime and a 5.6% chance of being incarcerated in a labor camp. In reality, the risks were probably higher than that for those who stayed in Cuba, since the 6.3 million population figure includes several hundred thousand Cubans successfully fled the country in the early years of the regime (the US alone admitted some 750,000 Cuban refugees between 1960 and 1976). Even if Castro's government really did improve health care substantially for those Cubans who were fortunate enough to avoid being executed or incarcerated in labor camps, the improvement would have to be pretty enormous to outweigh the negative health effects of the regime's repressive policies. How much of an in improvement in health care would be enough for you to be willing to take a 1.5% chance of being executed and a 5.6% chance of being sent to a brutal labor camp for at least several years? UPDATE: I have corrected a minor calculation error in my estimate of the odds of being sentenced to a forced labor camp in 1960s Cuba. The correct figure is 5.6%, not 4.8%. Related Posts (on one page):
The Supreme Court and Legal Realism:
Check out this fascinating passage from today's decision in Danforth v. Minnesota about what the Supreme Court does when it changes its interpretation of the Constitution. If I'm reading the passage correctly, it indicates that new Supreme Court decisions that overrule old cases simply discover and recognize the real Constitution that the Court hadn't been able to see in the past. Here's what Justice Stevens says about "new rules" of the Constitution established by new Supreme Court decisions:
[T]he source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay. Extra Credit Question: If the Justices truly believe in the passage above, should they be adhering under stare decisis to any criminal procedure decisions that they think are incorrect? Supreme Court Hands Down Danforth v. Minnesota:
I can't believe I didn't see this until now, but this morning the Supreme Court handed down Danforth v. Minnnesota, the very important habeas decision I blogged about at length back in November. To my surprise, based on the oral argument, the Court ruled for the defendant: The Court divided 7-2, with Justice Stevens writing for the majority and Chief Justice Roberts (joined by Justice Kennedy) in dissent. I think that was the right decision based on the briefs and my own research, but I'll have to read the opinions before I can say more.
Related Posts (on one page):
"Remarkable Presence of Mind" Under Horrible Circumstances:
The Toronto Globe and Mail reports:
Thanks to Prof. Abigail Abraham for the pointer. Do Dentists Have an Unusually High Suicide Rate?
I'd heard this factoid before, and was naturally skeptical. Still, Steven Stack, Occupation and Suicide, 82 Social Science Quarterly 384, 392 (2001) so reports. Controlling for various demographic factors, and using 1990 data from 21 states (covering 6198 suicides and 137,687 natural deaths) dentists had an odds ratio of 5.43 (compared to all the people in the sample), much higher than the nearest runner-up, doctors (2.31). Both the dentists' and the doctors' odds ratios were statistically significant. The lowest statistically significant odds ratios were among farm workers (0.69) and clerks (0.85). Professors and lawyers both were not statistically different from the average person in the sample. Castro's Dictatorship and Cuban Health Care:
Cuban communism may be repressive, but at least it provides good health care. This is a common trope of left-wing apologias for Castro's brutal dictatorship. This claim is getting recycled yet again in the wake of Castro's recent resignation (e.g. here). One response to this point is that of liberal Berkeley economist Brad DeLong: Cuba would likely have a much higher standard of living (and better health care) today had it not gone communist in 1959. As DeLong documents, Cuba in the 1950s was one of the richest countries in Latin America and rapidly approaching Western European standards of living and health outcomes. Under communism, it became one of the poorest nations in the Western hemisphere - despite receiving vast quantities of heavily subsidized oil from the Soviet Union for decades. Taking Cuban official statistics at face value (as DeLong does), Cuban health outcomes and standards of living are roughly similar to those of Mexico and the Dominican Republic. In the 1950s, DeLong notes, Cuba was vastly better off than these countries and, on some measures (such as infant mortality) better than many Western European nations. But there is an even more basic problem with the "at least Castro improved health care" excuse: it assumes that official Cuban government health care statistics are accurate. I find that assumption highly improbable. A government that brutally represses dissent and executed over 100,000 political prisoners out of a population of just 6.3 million is unlikely to be above falsifying its official statistics in order to improve its image. That was certainly common practice in other communist societies, including those which Castro used as models for his own. When the Iron Curtain fell in Eastern Europe, scholars rapidly determined that official Soviet and East European statistics were routinely falsified to burnish the communist regimes' public image. As this foolishly credulous 1973 Time article noted, official East German stats indicated that, by 1970, East Germany had a higher standard of living than Italy and was rapidly closing in on Britain. Anybody with even the slightest familiarity with actual East German living standards knows how far such communist claims were from reality. How bad is Cuban health care really? I don't know. Probably no one will know until the regime finally falls and honest data can be collected. For now, it's at least worth noting that the government health care clinics available to ordinary Cubans (those not members of the government elite) look like this and this. It's also worth noting that if Cuban living standards and health care really were as good as the government claims, it's unlikely that millions of Cubans would have risked their lives to flee the country - not only for the wealthy United States, but even for such far poorer destinations as Puerto Rico and the Dominican Republic. It's especially telling that many Cuban refugees prefer even Haiti (the one Latin American nation that probably really is poorer than Cuba) to life under Castro. The evidence of people risking their lives to vote with their feet is a lot more compelling than the Cuban government's dubious health statistics. UPDATE: I am aware that some of the data on Cuban health care comes from the United Nations and other international organizations. However, the UN and the others depend on information provided by the Cuban government. You can't do independent data collection in a totalitarian dictatorship. Thus, the UN numbers are derivative of Cuban official statistics. Related Posts (on one page):
Bombing in Denmark:
Danish journalist Jakob Illeborg writes:
Illeborg writes more — the entire post is much worth reading — but the conclusion strikes me as very troubling:
I would think that standing up for the right to speak — even when the speech offends other religions — is something that does "really matter[]." See also Abe Greenwald's comments in Commentary, which take the same view that I do. Thanks to Michael Totten (guest-blogging at InstaPundit) for the pointer. For more on the cartoons, see my post from two years ago. Bestiality + Necrophilia = No Crime At All?
Believe it or not, the issue has just come up. The Wisconsin Court of Appeals concludes that it indeed probably isn't a crime (or at least not the crime charged), but that the defendant waived the argument by pleading no contest:
Thanks to How Appealing for the pointer. Lawprofs for Congress?
My erstwhile coauthor Larry Lessig (Stanford) is considering running in Northern California as a Democrat (to fill the late Tom Lantos's seat), and Michael Livingston (Rutgers) is officially running in Pennsylvania as a Republican, against Chaka Fattah. Hillarymandias, Queen of Queens:
Bumperstickerist, a commenter at JustOneMinute, writes: HillarymandiasFor the original, see here. Thanks to Megan McArdle (guest-blogging at InstaPundit) for the pointer. Why I Haven't Blogged on the FISA Bill:
I haven't been blogging on latest developments in the FISA bill and telecom immunity, and I thought I would briefly say why.
In my view, the issue seems to have entered the realm of political symbol rather than law. The President is making overblown and excessive claims about the need for the bill. (National security is at risk!) On the other hand, critics are making overblown and excessive claims about its harms. (This will give them the greeen light to break the law again!) It seems to me that the stakes on both sides are an order of magnitude lower than either side is pretending they are. That's not necessarily a bad thing for democracy. A clash of the branches is healthier for democracy than one branch rolling over and playing dead, even if it's mostly posturing. But it doesn't lead to a whole lot of interesting blogging on the merits. One exception to that rule is that there have been some very interesting clues from the public debate about how the Protect America Act has been implemented. Back when the Act was new, we spent a lot of time trying to figure out just what the heck in meant. Sounds the Administration have been making give us some ideas; in particular, it sounds like they did *not* enact a one-size-fits-all monitoring protocol, but rather have a series of monitoring protocols on a smaller scale. That's been my impression at least; given all the political posturing, I haven't been following the issue very closely. UPDATE: Some readers suggest in the comment thread that the views of critics of retroactive immunity aren't overblown. I addressed this issue in a long post back in December: How Much Difference Would The Proposed Immunity Deal Make? From Greenhouse Gas to Gasoline:
The New York Times reports on an interesting scientific undertaking:
Now That's A Cool Job:
"CBO," Chief Beer Officer.
Don't Write Like This!
James Taranto (Wall Street Journal's Best of the Web) catches this opening paragraph from an AP story:
Yow. Tuesday, February 19, 2008Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations:
That's the title of a Working Paper that I've co-authored with Howard Nemerov. Abstract: There are 59 nations for which data about per capita gun ownership are available. This Working Paper examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.Comments are welcome--particularly by commenters who read the article, rather than wasting time on troll battles on other issues. Ninth Circuit Does Not Reach How Fourth Amendment Applies to Text Messages:
Back in November, I had a long and fairly detailed post about a pending Ninth Circuit case, United Stat |
