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Friday, February 29, 2008

Agreements to Raise a Child in a Religion:

My coblogger David Bernstein wrote, in a comment to my preference-for-agnostic-parent hypothetical,

It strikes me that if there is uncontested evidence that the parents agreed to raise their children in a certain, nonabusive way when they got married, the parent that follows through on the deal SHOULD be favored, whether the agreement was atheism, or religion, or whatever.

Here's my thinking on this. I'm generally a believer in enforcing contracts, even when a party changes his mind about them. The power to enter into binding contracts is an important power.

1. Nonetheless, precisely because contracts are binding, the legal system has to distinguish contracts that the parties intend to be legally binding from plans or tentative agreements that express a party's current views but that don't purport to legally bind the party in the future. "I will always love you" said to a lover is a classic example: If you want to make it legally binding (even to the limited extent that marriages are legally binding these days), you have to go through some pretty significant formalities. Without those formalities the agreement is understood as expressing a desire, a hope, or a plan, not a legally binding commitment.

Likewise with "[Christianity / objectivism / music lessons] are an important factor to me, and I feel strongly about raising our daughter this way." One can be entirely sincere about this, and in fact plan to stick by this, without intending to make a binding commitment. In fact, many people -- knowing how time and experience leads us to change our views on many subjects -- would rightly balk at making such binding commitments (just as they often, though not always, balk at turning "I will always love [my boyfriend/girlfriend]" into a binding commitment).

So if there is evidence that the parents agreed to make a binding commitment to raise their children in a certain, nonabusive way, there would be at least a serious argument in favor of enforcing the contract (though one would need to know to what extent the best-interests test can be displaced under state law by such contracts). But it seems to me a mistake to infer such a binding, long-term commitment simply from an agreement in principle, as to matters on which people's attitudes often change with time.

2. It's also important that contracts, especially contracts about religion, are clear enough that courts can sensibly enforce them. An agreement's vagueness is often a sign that the parties didn't intend it to be binding. But given the Establishment Clause constraints on theological judgments by courts (even when the courts are interpreting contracts or wills that expressly call for such judgments), it's especially important that the contract be clearly applicable using the court's strictly secular interpretive approach.

My sense is that many casual agreements about religion or the importance of religion are not sufficiently clear. "I agree that we should raise our child Jewish," for instance, leaves a great deal uncertain. Obviously, the particular strain of Judaism isn't mentioned. Neither is the intensity of the raising -- does it mean that Judaism (whether Orthodox or Reform) would be a pervasive part of the child's life, just that the child would be exposed to some of the most important aspects of Judaism (i.e., become a High Holidays Jew, though perhaps with a bit more intensity around Bar Mitzvah time), or something in between? Neither is the specific degree to which the raising would involve organized religion, rather than just individualized study. Neither is the degree to which the child would be exposed to rival views (which may become important if the parents divorce and one converts to a different religion, and exposes the child to that religion without otherwise interfering with the child's religious rituals).

Now each of us can have a sense of which side is complying more closely with even a vague agreement. There might even be a good deal of consensus on the subject. But in such cases, I don't think this sort of consensus is an adequate basis for courts to decide, because it involves too much subjective judgment about what are the "true" rules of certain religions, and which of those are "central" -- something courts are barred by the Establishment Clause from doing.

For instance, is an agreement to raise the kids Jewish violated by a parent who tries to raise them as Jews for Jesus? I know that many Jews believe it would be, and in some sense they might be right. But I don't think that a secular American court is allowed to decide whether or not Jews for Jesus is "really Jewish," whether Reconstructionist Judaism is "really Jewish," whether Reform Judaism is "really Jewish," or for that matter whether Mormonism is "really Christian."

So it seems to me that even if the parties are intending to create a legally binding agreement (which they often won't be), many kinds of religious agreements would still be unenforceable by secular courts. Perhaps some might be, for instance an express agreement that the child would be sent at least twice a month to churches of a particular organization, or an agreement that the religious terms of the agreement are to be subjected to binding arbitration through some private religious body (such as a Jewish Beth Din). But they would have to be drafted in such a way as to avoid the need for religious decisionmaking by a secular court.

3. Finally, I should note that if one thinks the court making a custody decision should mostly focus on the best interests of the child (subject to whatever constitutional constraints there may be), then it's not clear to me to what extent the court can consider the parties' contract, which need not be aimed at the child's secular best interests. (Sometimes departing from such a contract would be against the child's best interests, but not always and not necessarily even most of the time.) But one could certainly argue that state family law should sometimes subordinate the best interests standard to reasonable agreements between the parties -- setting aside the other objections I raised above -- especially when enforcing such agreements can often yield more certainty, quicker and cheaper resolution, and decreased acrimony.

62 Comments
Michigan Court Prefers Agnostic Parent Over a Parent Who Has Been Finding Religion:

Here's an excerpt from a recent Michigan court decision:

The Plaintiff [father] testified that agnosticism and scientific rationalism were important factors to both parties when they were first married and both felt strongly about not raising their daughter in organized religion. The Plaintiff remains consistent in not attending any religious services with the daughter. The Plaintiff's testimony and actions appear to be sincere in raising the daughter outside any organized religion.

The Defendant [mother] testified that she was more firm in avoiding religious organizations during the summer, but during the winter months she found herself drawn to church, both because of the friendly environment and community feeling it provides, and because her earlier opposition to religion has been softening. The Defendant testified that she has allowed the daughter to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child who was 3½ at the time of the decision. The Plaintiff testified that the Defendant has admitted to him that she takes daughter to church occasionally and does not feel that it will make a difference.

The Plaintiff appears to be more consistent in avoiding organized religion with the daughter on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties' religious beliefs, however, both parties agreed that agnosticism and scientific rationalism was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in the daughter's agnostic, rationalistic upbringing while the Defendant has allowed the daughter to make the decision on whether she attends church....

As to raising the daughter in her absence of religion, the Court concludes that this factor favors the Plaintiff.

Of course, this isn't a real decision -- it's a recasting of the decision I blogged about yesterday, in which the court preferred the more religiously observant parent over a parent who has moved towards having less interest in exposing her daughter to organized religion. But I think it's a useful way of looking at the problem.

It seems to me that this hypothetical decision would be a First Amendment violation. Remember that the judge wouldn't be finding any specific secular harm to the child from the change; there'd be no evidence that the child is finding the change to be disruptive (in fact, the child seems to prefer it), and no evidence that the religious services somehow involve some physical danger to the child. Nor would the judge be finding any binding contract to raise the child irreligious; there's no evidence of a willingness to be so bound, and no legal hook for the court to consider the contract between the parties in making a decision that's supposed to be about the best interest of the child.

The judge would simply be saying that a parent who had moved towards greater religiosity since when the child was born should be disfavored. And secular courts are not supposed to make such judgments.

But if I'm right, then how could the actual child custody decision (quite commonplace in Michigan courts, and some other courts, or so my research suggests) be constitutional? If a court can't hold against a parent the fact that she has moved away from agnosticism and towards religiosity, how can it hold against a parent the fact that she has moved away from organized religion and towards less church attendance?

24 Comments
Now There's a Bit of Hostile E-Mail for You:

Just got it in my mailbox:

hellow nonsense person u know we r all the creature of God and we go to die one day then y u insult any other religion for the sake of just some people or temporatry popularity..... o stupid its a big sin for everyperson..... so u should try to appologise ur sin bu God and never try again this kind of mistake whenever ............

just go to hell disguesting guy......

Uh, OK.

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"Quaker Teacher Fired for Changing Loyalty Oath":

The San Francisco Chronicle reports:

Marianne Kearney-Brown, a Quaker and graduate student who began teaching remedial math to [California State University East Bay] undergrads Jan. 7, lost her $700-a-month part-time job after refusing to sign an 87-word Oath of Allegiance to the Constitution that the state requires of elected officials and public employees....

[W]hen asked to "swear (or affirm)" that she would "support and defend" the U.S. and state Constitutions "against all enemies, foreign and domestic," Kearney-Brown inserted revisions: She wrote "nonviolently" in front of the word "support," crossed out "swear," and circled "affirm." All were to conform with her Quaker beliefs, she said....

Modifying the oath "is very clearly not permissible," the university's attorney, Eunice Chan, said, citing various laws. "It's an unfortunate situation. If she'd just signed the oath, the campus would have been more than willing to continue her employment." ...

"Based on the advice of counsel, we cannot permit attachments or addenda that are incompatible and inconsistent with the oath," the campus' human resources manager, JoAnne Hill, wrote ....

Hill said Kearney-Brown could sign the oath and add a separate note to her personal file that expressed her views. Kearney-Brown declined. "To me it just wasn't the same. I take the oath seriously, and if I'm going to sign it, I'm going to do it nonviolently." ...

Now I appreciate Cal State's desire to follow the law; the California Constitution does prescribe the text of the oath, and says "all public ... employees, ... except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation." But surely there are times to interpret laws as requiring substantial compliance rather than strict literalism. Even the precedent that Ms. Hill cites as supposedly requiring the exact text of the oath (see the article for more on that) seems to take this view: It rejected the applicant's modified oath only after stressing that the modifications were not "surplusage" or "innocuous or merely expository," but rather "ma[d]e equivocal the essential oath preceding [the applicant's personal statement]." Likewise, the venerable principle that laws should be interpreted in a way that minimizes possible constitutional problems (here chiefly First Amendment problems related to compelled speech) counsels in favor of reading the law to provide some flexibility. In light of this, letting Ms. Kearney-Brown sign the entire oath, simply with the addition of a term, seems sufficiently consistent with the state mandate.

True, the Supreme Court has held that it doesn't violate the First Amendment to require certain narrow loyalty oaths, including support-and-defend oaths, for government employees. But the Court's justification was precisely that these oaths "do[] not require specific action in some hypothetical or actual situation"; they embody "simply a commitment to abide by our constitutional system ... [and] a commitment not to use illegal and constitutionally unprotected force to change the constitutional system."

Adding "nonviolently" to the oath (or affirmation) thus doesn't change its legal meaning: As the Supreme Court pointed out, the original oath has never been understood to require violent action. Draft laws and other laws may sometimes require such action, but they generally don't require it of women, and in any event it is those laws -- not the oaths required of a wide range of nonmilitary government employees -- that require the action.

So it looks like the state is losing a valuable employee, and has to spend time, money, and effort hiring a new employee. And people who (for religious reasons or other reasons) oppose violence and are especially scrupulous about not promising what they can't deliver lose the opportunity to work in state jobs. As I said, I agree the government should follow the law. But surely the law has enough flexibility in it to avoid this sort of pointless result.

Thanks to Joel Sogol for the pointer.

Related Posts (on one page):

  1. College Teacher Fired Over Loyalty Oath:
  2. "Pacifist Cal State Teacher Gets Job Back":
  3. "Quaker Teacher Fired for Changing Loyalty Oath":
72 Comments
McCain's birth, Russian language version:

In this Russian-language radio broadcast for Radio Free Europe/Radio Liberty, I add my own thoughts to the controversy. Synopsis: the issue hasn't been clearly settled by the courts, but most legal scholarship supports McCain's eligibility. His eligibility is strongly supported by the fact that he was born on American soil, since he was born in the Canal Zone. The clause was intended to prevent dual loyalty, which is not an issue in McCain's case, since he was an American citizen at the moment of his birth, and he was never a citizen of Panama or any other nation. Thus, this is an easier case than someone who was born on foreign soil, and who received foreign citizenship as a result of that birth. (E.g., a child born to American private-sector workers who were living in Ireland at the time of the birth; although I argue that even in this case, most legal scholarship would favor that child being considered "a natural-born citizen.")

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Are You Feeling

bissextile?

19 Comments
Interesting Presidential Poll:

It seems that everyone I know, Republican and Democrat, liberal and conservative, thinks that Barack Obama is wildly popular and a virtual shoe-in to become president if he receives the Democratic nomination. At least one poll suggests otherwise. According to Rasmussen,

Thirty-four percent (34%) of all voters say they will definitely vote for John McCain if he is on the ballot this November. Thirty-three percent (33%) will definitely vote against him while 29% say their support hinges on who his opponent is.

Barack Obama has the same number who will definitely vote for him--34%. But, more people are committed to voting against him than McCain. Forty-three percent (43%) say they will definitely reject him at the ballot box.

I understand that this is just one poll, and we've all learned to be skeptical of polls. But this one is so contrary to the conventional wisdom that when I've mentioned it to people, they express sheer disbelief. So here it is.

92 Comments
Religious Upbringing and Changes in Attitudes:

I just got the trial court opinion in Kik v. Kik, the latest Michigan appellate case that counted a parent's greater religious observance as a factor in favor of the parent's custody claim. Here's what the trial judge wrote about this:

As far as religion, the testimony indicates that the child was baptized at Saint Paul's in Big Rapids which is where the parties were married. The Plaintiff testified that religion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church. The Plaintiff also admitted that after they were married it was a struggle for them to attend church, however, since the separation the Plaintiff has been more consistent with attending church and taking [the daughter] with him on a regular basis. The Plaintiff attends church every week at Saint Mary's of the Woods Catholic Church in Kalkaska and takes [the daughter] with him to church on a regular basis. The Plaintiff's testimony and actions appear to be sincere in raising [the daughter] in the church.

The Defendant testifies that she also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized. The Defendant testified that she was more regular in attending church during the summer, however, has not been regular in attendance during the winter months. The Defendant testified that she has allowed [the daughter] to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child [who was 3½ at the time of the decision]. The Plaintiff testified that the Defendant has admitted to him that she does not take [daughter] to church on a regular basis and does not feel that it will make a difference.

Although the parties struggled to attend church while they were married, the Plaintiff appears to be more consistent in attending church with [the daughter] on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties['] religious beliefs, however, both parties agreed that religion was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in [the daughter]'s religious upbringing while the Defendant has allowed [the daughter] to make the decision on whether she attends church....

As to raising [the daughter] in her religion, the Court concludes that this factor favors the Plaintiff.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs — but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

To begin with, note that this is not a case where continuity of religious upbringing is valued simply because it prevents disruption for the child. I can imagine why a child who is closely involved with her church would be hurt by being separated from church activities and from her church friends. But here there's no evidence to controvert the mother's claim that the daughter prefers not to go to church often, and no evidence to suggest that this reduced churchgoing is causing disruption in the daughter's life.

Also, this is not a case where the court is enforcing a contract providing for the religious upbringing of the child. True, the parents apparently "agreed that religion was an important factor ... when they started their family." But there's no evidence that the parents entered into what they reasonably saw as a binding contract. Not every understanding or plan is seen by the parties as a binding contract, and that's good; we can value lots of things and plan lots of things without surrendering our rights to change our minds.

And this right to change one's mind is especially important for religion, a subject on which people do often change their minds. One's religiosity, and one's perception of the importance of religiosity to one's children, may well change. The divorce itself may shake one's faith in God (especially if one is Catholic). Seeing one's child grow may deepen one's religious beliefs or weaken them. Seeing how one's child behaves may change one's view about whether the child is getting something valuable out of organized religion. The pressures of everyday life may change one's perception of how much of one's scarce parenting time and energy one should devote to organized religion. And of course sometimes people may have religious epiphanies. One should not lightly infer a promise to maintain one's religious practices (or the nature of the upbringing one plans to give one's child) from a past general agreement that religion is an important factor.

What's more, note that the judge wasn't purporting here to enforce a contract between the parties. She was just deciding what was in the child's best interests. Even if explicit contracts to raise a child in a particular religious manner should be upheld (and I'm inclined to say they can be, if this can be done with a minimum of entanglement with theological questions, but that's a matter for another day), there's no reason to think any such enforcement was taking place here.

So what we have here is a judgment that, once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing — even when one parent changes her views about religion, or about the importance of organized religious observance, and even when there's no particularized evidence that this child is seeing the change as disruptive. On other matters, I take it, a court wouldn't take the same view: One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons. But as to religious practice, the one area where governmental coercion poses the greatest constitutional problems, the judge was holding a parent's change in attitude and behavior against that parent.

Once a child is being exposed to organized religion, the reasoning seems to go, it's in the child's best interests to continue this exposure, even when the child isn't interested, when stopping the exposure isn't causing disruption, when one parent thinks the exposure is unnecessary, and when the other parent would be free to expose the child himself during his time with the child. I can't see how that is consistent with the Establishment Clause principles that the government generally may not prefer religious behavior over secular behavior, and that the government may not coerce people into engaging in religious practice.

Perhaps the decision wasn't this particular trial judge's fault, given what seems to be the Michigan state legal principles that push in this direction. But it seems to me unconstitutional nonetheless.

UPDATE: Several commenters suggest that the mother was properly faulted for not living up to her supposed values, because she has supposedly been saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent?

I see no such evidence in the trial court opinion. There's evidence that mother once thought church attendance was important. But now it seems that she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly. Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. That's hardly evidence of inconsistency, hypocrisy, or failure to live up to claimed values.

72 Comments
The New 7½:

I'm turning it today. Yow. I guess I can't be an enfant terrible any more, so I'm working on becoming an eminence grise instead.

33 Comments
Why Did President Bush Advocate War with Iraq?:

As 'a cover-up for a failing economy.'"

Guess who said that. Answer below.

(show)

97 Comments
The meaning of "natural born."

I read with some amusement the struggles that some non-lawyers [and some lawyers as well] have been having understanding the language of Art II, Sec. 1 of the U.S. Constitution: "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President . . . ." If the drafters of the Constitution had wanted to require that presidents be born in the United States, they could have done so. Instead, they invoked the then-standard idea of natural citizenship as reflecting natural allegiance to the king or the state.

Standard 18th century dictionaries and commentaries couldn’t have been clearer on this point. For example, Giles Jacob in The New Law-Dictionary (1743) and The Common Law Common-plac’d (1733) made clear who was an alien and who was a "natural born subject”:

The Children of Ambassadors in a foreign Country, are natural born Subjects, and not Aliens. Id. at 22 (Eighteenth Century Collections Online)


(click to enlarge)

Blackstone has a lengthy treatment:

William Blackstone, Commentaries 1:354, 357--58, 361--62 (1765)

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

. . . . .

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves.

Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

. . . . .

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador.

To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

According to even the most technical meaning of "natural born" citizen in the 1780s, John McCain is a natural born citizen of the United States, but George Washington and Thomas Jefferson may not have been (since they were born before 1776), though they would have been generally treated as such at the time.

96 Comments

Thursday, February 28, 2008

Bies v. Bagley: Decision of the Day has a post on the Sixth Circuit's latest capital habeas case, Bies v. Bagley. Bob's take: While the decision granting habeas relief is "remarkable" and "creative," in the end "reversal is inevitable."
4 Comments
"Natural-Born Citizen":

I'm not an expert on this, but I'm pretty sure that Sen. McCain is a "natural-born citizen" and thus eligible to be President: He was a citizen from birth, having been born to citizen parents (his father was stationed in the Canal Zone). My sense is that "natural-born citizen" is most plausibly interpreted as being a citizen from birth.

Nonetheless, I'm pretty sure that the Senator erred when he said,

Barry Goldwater was born in Arizona when it was a territory, Arizona was a territory, and it went all the way to the Supreme Court.

Unless I'm mistaken, the Supreme Court has never decided the issue, nor have lower courts. They certainly didn't do it in Goldwater's case. On the bottom line, Sen. McCain is right, but not because of any Supreme Court precedent.

Many thanks to Prof. William Funk for pointing this out.

112 Comments
Supposedly Harmful Speech as Enjoinable Nuisance?

I just noticed a remarkable lawsuit, Wright v. Islamic Center; the plaintiffs were trying to enjoin the construction of a mosque. The theory? Construction of the mosque would be a "public nuisance," because the mosque would "spread radical Islam throughout the United States," would help make the county even more of "a haven for terrorists" than it was before, and thus create "a clear and present danger to the ... community." (The complaint also raises objections to the supposed extra traffic that the mosque's presence would cause, but that's not the core of the allegations.)

A creative tort law theory, and in my view entirely misplaced, both as a matter of substantive tort law and the First Amendment. If some people associated with the mosque have been engaged in speech that fits within some narrow exception to First Amendment protection, it should be punished for that speech. If they have committed some other crime, then they can be punished for committing that crime. But you can't enjoin a political or religious organization from erecting a building based on the organization's supposed past bad speech, just as it can't enjoin the publication of a newspaper based on the newspaper's supposed past libelous articles.

Fortunately, the plaintiffs have dropped the lawsuit, at least for now. Let's hope it stays dropped. Again, if the mosque founders have done something illegal, punish them for that; don't try to use the courts to shut up their religious teachings or block their religious buildings because they supposedly "spread radical Islam."

54 Comments
Liberals, Conservatives, and Free Speech:

A commenter writes, on the campaign finance speech restrictions post,

Although suppression of speech has become a liberal monopoly, John McCain is one with the liberals on this, and he would readily appoint judges who would extend the range of suppressed political speech.

Let me say it again: Conservatives and liberals are both willing to restrict a considerable amount of speech (sometimes quite correctly, I might add). Neither side has a monopoly on speech restrictions. Consider, for instance, my study of how the Justices voted on free speech cases, 1994-2002, which counted their pro-speech-claimant votes, with some adjustments that I explain there (the cases since 2002 wouldn't, I think, affect the bottom line much):

1Kennedy74.5%
2 (tie)Thomas61.1%
Souter61.0%
4Stevens55.7%
5Ginsburg53.6%
6Scalia49.6%
7O'Connor44.7%
8Rehnquist41.8%
9Breyer39.7%

Some conservatives have broad views of free speech protections, some don't; likewise for some liberals. My sense is that the same true for politicians and academics as well.

What if one limits this just to expression that is generally seen as being on core political, religious, and social matters, and excludes, for instance, pornography and commercial advertising? I don't have the numbers on that, but I can talk about the big picture:

  1. Conservative Justices tend to be more willing to protect some sorts of such speech, for instance paid-for speech in campaigns, speech by judicial candidates, religious speech within generally available government funding programs, or antiabortion picketing (though note that on this last one, even Chief Justice Rehnquist supported restrictions).
  2. Liberal Justices tend to be more willing to protect some other sorts of such speech, for instance speech by government employees, speech that reports on the contents of intercepted telephone communications, and anonymous political speech (though note that on this last one, even Justice Thomas supported protection).
  3. On other matters, the views tend to be split, for instance on flagburning (and before you say that flagburning isn't literally speech, remember that contributing money to candidates isn't literally speech, either).

So as to some kinds of speech, left-right generalizations are in large measure accurate, especially when one focuses on Supreme Court Justices. But if we're speaking of speech more broadly, or even just political speech, one can't claim that speech restrictions are the special preserve of either side.

Related Posts (on one page):

  1. Dorf's Reply:
  2. Living Constitutionalism:
  3. Liberals, Conservatives, and Free Speech:
20 Comments
Law School Maternity Leave Policies:

A question to the law professors among our readers -- what are your school's maternity leave policies (or parental leave policies, if you have them)? Inquiring minds (though neither mine nor my wife's) want to know. Many thanks!

7 Comments
Law Faculty Blog Influence:

Jay Brown (The Race to the Bottom) has finished his posts on the subject. The most recent is Faculty Blogs and Influence: The Top 50 Most Influential Law Blogs; previous ones are related to US News rankings, increasing influence, SSRN downloads, court citations, and law review citations.

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John McCain, the Election, and the Future of Restrictions on Use of Money for Campaign Speech:

I think many (though by no means all) restrictions on the use of money for campaign speech violate the First Amendment. I'm one of the few people who thinks Buckley v. Valeo is basically right, and contributions can generally be capped but expenditures (including corporate expenditures, a matter on which I disagree with the Court's Austin v. Michigan Chamber of Commerce precedent) cannot be. This means I'm not as critical of Sen. McCain's views as some of my conservative and libertarian friends are, but I certainly find much to disagree with in his views.

Still, let's be realistic: On the Court today, the liberal Justices are the ones who are most likely to uphold a wide range of campaign finance speech restrictions; Stevens, Ginsburg, and Breyer have even suggested that they would uphold limits on independent expenditures, which in my view would violate the core of the First Amendment. And the conservative Justices, including the moderate conservative Kennedy, are the ones who are most likely to strike down a wide range of such restrictions.

Perhaps McCain will appoint Justices who will end up being more likely to uphold such restrictions. But I'm pretty sure that he won't be a single-issue appointer on this matter. He's likely to appoint noted figures from the conservative legal movement, who are culturally and ideologically predisposed to be at least mildly skeptical of such restrictions, and likely to be (at worst) in the middle on this issue -- where O'Connor and Rehnquist mostly were -- and more likely where Kennedy, Alito, Roberts, and perhaps even Scalia and Thomas are.

On the other hand, I suspect that either Clinton or Obama would likely appoint noted figures from the liberal legal movement, who are culturally and ideologically predisposed to be open to such restrictions, and be where Stevens, Ginsburg, and Breyer are, or (at best) in the middle of this issue, where Souter has generally been. So my hesitation about many campaign finance speech restrictions is a reason to support McCain (despite my disagreement with him) rather than to oppose him. He's surely not perfect in my book, certainly not on this issue. But I think he'll be better than the alternatives, and to me elections -- especially general elections -- are all about the best option, not the perfect one.

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Prison + Mental Institution Incarceration Rate:

Apropos Orin's post, and the news story it refers to, I thought I'd remind readers about Bernard Harcourt's guest-blogging last year on how looking at the fraction of people incarcerated in prison or mental institutions offers a useful perspective. Here's the key graph from Harcourt's work:

Unless, I'm mistaken, this graph includes prisons but not jails.

Related Posts (on one page):

  1. Prison + Mental Institution Incarceration Rate:
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One Percent of American adults is now behind bars. The connection between the higher and higher incarceration rate and the lower and lower crime rate remains hotly disputed. Still, the incarceration rate is a remarkable and disturbing figure. (Hat tip: Kieran Healy)
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Stuff White People Like:

Very funny. Thanks to Steve Kurtz for the pointer.

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Strange Law Review Stories: Over at Concurring Opinions, Nate Oman offers a helpful reminder to law review editors: If you want to publish an article, please notify the author.
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Cool Optical Illusions:

This blog displays lots of them, including my favorite, the color contrast illusion:

Would you believe that the seemingly blue tiles on top of the left cube and the seemingly yellow tiles on top of the right cube are actually identical? For proof, and more on this, see color the site. Check out the archives as well (linked to in the left margin, a few pages down).

UPDATE: Visitor Again wins.

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Supreme Court Justices on Writing Opinions, the Role of Law Clerks, and Effective Advocacy: Over at LawProse.Org, Bryan Garner has posted a remarkable set of extended interviews with eight of the nine current Supreme Court Justices (all but Souter) about legal writing, advocacy, and the process of deciding cases and writing opinions. The interviews are one-on-one, and each ranges from 30 minutes to over an hour. Justices Breyer, Ginsburg, and Thomas were interviewed in their chambers, and the rest appear to be in either the Lawyer's Lounge or the SG's room in the Court building. Garner conducted the interviews in 2006-07, although I don't know when he posted the files.

  For Supreme Court geeks, these interviews are a gold mine. The Justices discuss a wide range of topics including how they write opinions; the role of law clerks; tips for effective advocacy; what they look for in cert petitions; whether specialists or generalists are better advocates; what parts of briefs they read first; the differences between being a lower court judge and a Supreme Court Justice; and which Justices — and in some cases, which professors — they think are the best writers. Each discussion is tailored to the specific Justice. For example, much of the Roberts interview focuses on how he approached written and oral advocacy as a lawyer before he became a judge. (Tremendously valuable advice, I thought.)

  Anyway, it's all super cool stuff. Thanks to Roy Englert for the link.

  UPDATE: Those watching using Windows should right-click on the image, click "zoom," and then click "full screen". That brings the video to full size.
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National Grammar Day:

Arnold Zwicky (Language Log) has many wise thoughts on the subject. Here's one, though you should read the whole post:

[T]he assumption that non-standard variants are unclear and therefore impede communication ... is mostly just taken for granted, without any kind of defense -- in what way is "between you and I" less clear than "between you and me"? in what way is "all shook up" less clear than "all shaken up"? they're non-standard, certainly, but LESS CLEAR? -- and the occasional explanations of how particular non-standard usages are unclear don't survive scrutiny. Instead, it's just an article of faith that non-standard variants (and conversational, informal, and innovative variants, and variants restricted to certain geographic regions or social groups) are unclear, vague, sloppy, or lazy ....
This has been my experience as well, not in all instances, of course, but in many: Often people complain about some (supposedly) novel usage, and assert that it's stripping the language of clarity or precision or useful distinctions, but on closer analysis the assertion proves to be unfounded.

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Wednesday, February 27, 2008

Very Cool Bumper Sticker:

One of my students has a bumper sticker on her laptop that says: "Vote No on Directive 10-289." It looked like this t-shirt, without the smiley face.

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What, Was William H. Taft Chopped Liver?:

Jeff Rosen: "over the course of history, former politicians have made not only the best chief justices--think of John Marshall, Charles Evans Hughes, and Earl Warren."

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Fly Your Terrible Towels at Half Mast:

Myron Cope, the legendary voice of the Stillers, has passed away at the age of 79.

My particular Cope memory was listening to him during Plaxico Burress's first game with the Steelers, when Cope was unable after many tries to spit out his name. So he simply decided to refer to him as "Flex" for the rest of the game. What a great character.

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Comments on McCain and the Jewish Vote:

Comments for that post aren't working, and I don't seem to be able to fix it. So, if you want to comment, you can do so here.

UPDATE: The short version of my previous post is, Bush got around 25% of the Jewish vote in 2004. There are reasons to believe that McCain will be more popular among Jews than was Bush, and that Obama will be less popular than was Kerry. Therefore, one can expect McCain to do better than Bush among Jewish voters. Please read the prior post for details before commenting.

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William F. Buckley and American Conservatism:

William F. Buckley, who passed away today, was a major figure in the history of American conservatism. Buckley was not a great original thinker; but he was an outstanding and extraordinarily successful intellectual organizer.

Buckley's most important achievement was the role he played in making conservatism intellectually respectable again. When he founded the National Review in 1955, conservatism was almost completely marginalized in the intellectual and academic world. Buckley and the talented writers he gathered at the Review played a key role in changing that. He did so in three ways that today's conservatives and libertarians would do well to keep in mind.

First, he distanced intellectual conservatism from the conspiracy-mongering and anti-Semitism which had been an important element of the pre-Buckley American right. For example, Buckley played a crucial role in banishing the conspiracy-oriented John Birch Society from the mainstream conservative movement.

Second, Buckley tried very hard to create a genial and friendly image for conservatism as opposed to one that projected anger, intolerance, and rage. This posture was a natural extension of Buckley's friendly personality. But, more importantly, he understood that it would be impossible for conservatives to be taken seriously in the liberal-dominated intellectual world without it.

Third, like his longtime associate Frank Meyer, Buckley was a strong believer in "fusionism," the alliance between conservatives and libertarians. He himself was a fusionist in his own thinking, albeit in a less systematic way than Meyer. On some issues that divide libertarians and conservatives, Buckley actually leaned to the libertarian side - notably in his longtime advocacy of drug legalization. Although the conservative-libertarian alliance contained serious tensions, neither group would have been able to achieve as much without it. Today, both conservatives and especially libertarians are increasingly disillusioned with the fusionist project. It remains to be seen whether it can survive.

Unfortunately, Buckley's far-sighted rejection of conspiracy theory and anti-Semitism was for a long time not matched by similar enlightenment on racial issues. Not only did the early National Review claim that federal intervention to protect black civil rights violated constitutional federalism principles; it also contended that Jim Crow segregation was actually a good and justifiable policy (see, for example, this 1957 editorial defending southern states' denial of black voting rights). In fairness, several of the early National Review writers were opposed to segregation and favored efforts to change it (especially at the state level). But the magazine's editorial line - set by Buckley - was generally segregationist. Buckley and some of his NR associates were far from the only 1950s conservatives with a blind spot on black civil rights; but they were particularly important because of their status as founders of the modern conservative intellectual movement.

By the late 1960s, Buckley and NR stopped defending segregation and embraced official color-blindness. However, their failure to fully repudiate and apologize for their earlier stance made the later embrace of color-blindness seem strategic rather than principled and fed liberal suspicions that conservative color-blindess is just a pretext for promoting white privilege under another name. Eventually, Buckley did - to his credit - acknowledge that he had been wrong and that federal intervention to protect black rights against state governments had been necessary; but by that time it was very difficult to reverse the harm caused by his earlier stance. Although later generations of conservative intellectuals had no part in NR's early embrace of segregationism and many are probably unaware that it ever happened, the issue continues to stain conservatism's reputation in the intellectual world. By all accounts, Buckley was personally tolerant in his attitude toward racial minorities; but his public record on racial issues for a long time failed to reflect that.

Despite this serious blind spot, Buckley left American conservatism in far better shape than he found it. On balance, his shortcomings were definitely outweighed by his achievements.

Related Posts (on one page):

  1. William F. Buckley and American Conservatism:
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Supreme Court Recusals Because of Stock Ownership:

The L.A. Times reports that the Exxon Valdez punitive damages case might yield a 4-4 division — with no precedent being set, and the lower court decision being affirmed — because "Justice Samuel A. Alito Jr. withdrew because he holds Exxon stock." And indeed important cases have in the past yielded 4-4 deadlocks because one Justice owned stock in one of the companies.

This is a pretty bad result, it seems to me: An important issue will be unresolved, the Justices' time will be wasted, the parties' money will be wasted, and all over what is likely just a few thousand dollars' worth of investment.

Isn't there some better solution, even if we insist that a judge may not own even a small stake in one of the parties? For instance, if the problem is indeed just that the Justice owns actual stock (as opposed to owning a share in some fund that owns the stock), wouldn't it be much better for the Justice simply to sell the stock if certiorari is granted? This would presumably be little loss for the Justice, who could sell at market rates and lose just the commission (plus perhaps have some taxable capital gain that he might rather have deferred). Nor would the Justice have any enduring bias in favor of the company — it's not like the past stock ownership created or reflected an emotional relationship that persists even when the stock is sold. Or am I missing something here?

UPDATE: My colleague and corporations law maven Stephen Bainbridge has more. Also, to respond to some general comments: (1) I'd try to make this divestment-instead-of-recusal something of a rule, whether strictly binding or just followed as a matter of practice and precedent. (2) If there are insider trading objections to this (a matter discussed in the comments), I think the law should be amended to remove such objections; the minor insider-trading costs created by such behavior seem to me to be greatly outweighed by the benefits of letting Justices do their jobs.

(3) I realize that litigants generally aren't entitled to their day in the Supreme Court; but it still strikes me as unfair to litigants to cause them to spend a lot of money litigating the matter there, and then have the case end up 4-4 just because of happenstance. It's not a horrible unfairness, but it's something of an unfairness. And, more importantly, it also creates costs to the legal system -- generally, the grant of certiorari is triggered by the Court's judgment that there is uncertainty (say, a circuit split) that should be resolved for the benefit of future litigants and prospective litigants. If resolving that uncertainty is (all else being equal) a benefit, failing to resolve it tends to be a cost.

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The legal availability of handguns makes for a better-prepared police force and a safer citizenry:

Ed Nowicki (head of the International Law Enforcement Educators and Trainers Association) and I explain why in an op-ed in today's Baltimore Sun. The Nowicki-Kopel amicus brief is here.

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McCain and the Jewish Vote:

Ann Althouse deconstructs Obama's answers to questions about Louis Farrakhan and Rev. Jeremiah Wright here.

Which brings me to the subject of the Jewish vote in November.

Jewish Republicans overwhelmingly favored Rudy Giuliani for president, and as a pro-choice candidate--Jews overwhelmingly and strongly favor abortion rights--with strong ties to the New York Jewish community, he would have been a formidable competitor for the Jewish vote.

McCain, however, is a reasonably strong second choice. He starts with the base of the 20-25% of Jews who voted for Bush in 2004--Jewish Republicans plus Democrats and independents who favored Bush's tough "war on terror" and pro-Israel policies, which McCain can be expected to continue. McCain also has the advantage of having an outspoken Judeophilic brother, and the support of Senator Joe Lieberman, who is extremely popular among the Jewish moderate Democrats and independents from whom McCain can try to draw support. (Very liberal Jews, like other very liberal Americans, tend to loathe Lieberman, but McCain won't get their votes regardless).

To that, one can add another fraction of the Jewish vote that was turned off by Bush's close ties to the Christian right, his own evangelical Protestantism (which many Jews unfairly and ignorantly associate with anti-Semitism), his elite WASP upbringing (Jews don't like to vote for people who remind them of people who kept their parents out of their neighborhoods, schools, and country clubs), and general bicoastal snobbery against his persona. American politics turns to some extent on the degree a particular group feels "comfortable" with a candidate, and I suspect Jews will feel far more comfortable with McCain than with Bush.

Moreover, what one might call the quasi-libertarian wing of the Jewish community--socially liberal but economically conservative--will be up for grabs. On economic matters, both Democrats are running populist economic campaigns, and McCain, unlike Bush, has a reputation for fiscal prudence. The quasi-libertarian Jews have, I think, broken heavily Democratic because of the Bush Administration's close alliance with the Christian right on issues ranging from abortion to sex education to stem cell research. McCain is conservative on abortion, but the lack of overt religiosity in his persona and campaign will help him among Jews.

Finally, McCain has a reputation as a moderate Republican, and many Jews have been willing to vote for such individuals in recent years in local and state elections (think Guiliani, Riordan, etc.), especially when the Democratic candidate is perceived to be very liberal.

So what percentage of the Jewish vote could McCain expect to get against Obama? If Obama winds up being perceived by many as implicitly hostile to the Jewish community's interests, he could do very poorly indeed. The same is true if the Republicans successfully paint Obama as a McGovernite. In 1972, Nixon received about 33% of the Jewish vote against McGovern (caveat: Nixon won in a landslide, which is unlikely to happen to McCain). In 1980, Carter, who was perceived by many Jews to be hostile, received 45%, against 40% for Reagan, and 15% for Anderson. One should keep in mind that voting Republican is much more accepted in the Jewish community today than it was back then, and the growing Russian and Orthodox Jewish communities are much more Republican than the Jewish community as a whole.

My best guess is that McCain starts with a base of 25-30% of the Jewish vote, which is probably all he'll get if Hillary Clinton manages to win the Democratic nomination, as Jews will expect a reprise of the very popular prior Clinton Administration. But Obama's close ties to the anti-Israel Farrakhan-buddy Rev. Wright, along with his very liberal views on War on Terror related issues, his extremely liberal economic positions that will turn off the quasi-libertarians, and his strong support among the elements of the Democratic Party most likely to blame our foreign policy woes on Israel and the "[Jewish] neocon cabal in the Bush Administration," suggests to me that McCain could easily get 40%. On the other hand, if McCain makes another idiotic comment along the lines of "the Constitution established the United States of America as a Christian nation," my projections will turn out to be overly optimistic.

UPDATE: Commenter "Stash" makes some good points in rebuttal:

I think DB leaves out one important aspect of the question, and, that is, Obama will agressively, and, I think, effectively campaign for Jewish votes. He has overcome supposed demographic barriers before.

He will give numerous assurances on Israel, but, probably equally important, he will be given very high marks for standing up to antisemitism in the Black community--as he did when he chided a Black audience for anti-semitism (and homophobia). And, on an emotional level, his debate answer that he would not be standing there were it not for Jewish civil rights workers who put their lives on the line in the 1960s will move a lot of people. When was the last time you heard a "Black leader" give the Jewish community its "props" for the prominent role it played in the civil rights movement without any ifs, ands or buts? In short, I think that if Obama uses his considerable political gift to campaign for the Jewish vote, he can do a lot to offset questions raised about some "secret agenda" and questionable associations.

It also seems plausible that given his popularity among Blacks and progressives generally, he could be effective in delegimatizing in these communities at least the more illegitimate criticisms of Israel and "the Lobby." In the debate, I think, he implied as much. Jews could very well see this (combined with assurances on Israel) as a very positive thing.

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Speech on Your Dorm Room Door:

The North Carolina State Technician newspaper reports:

"No Blacks allowed White Room Only, Blacks next door," a sign on the door of an Avent Ferry Complex apartment read last Thursday [Feb. 14] ....

"It was referred to the University for disorderly conduct and racial harassment," [Chief of Campus Police Tom] Younce said....

The reporter told me (in response to my e-mail) that the sign was put up by the apartment's three residents. The apartment is in a school-run dorm.

The sign is repulsive (unless it's some joke that all the neighbors grasped as such, but that the administration somehow overreacted to), but it is constitutionally protected by the First Amendment against administrative punishment, whether on a "disorderly conduct" theory (which would presumably focus on the sign's general offensiveness and tendency to lead to hostility and possible fights) or on a "racial harassment" theory. The university could ban all signs on the outside of dorm room doors (though see this contrary view), but even in a "nonpublic forum" such as dorm room doors, it can't impose viewpoint-based bans that forbid racist speech but allow other speech. Nor does the narrow "fighting words" exception apply to speech like this, which isn't focused on a particular person.

One justification I heard for a possible ban on such signs is that the university can ban discrimination in housing, and therefore can ban signs that announce to students that they will be so discriminated against. But I'm not sure that a university could, even in its capacity as landlord, interfere with tenants' "intimate association" right to choose whom to allow into their living rooms (or bedrooms). And even if it constitutionally could have, I highly doubt that North Carolina State would impose such a shocking constraint on people's freedom of choice in whom to socialize with. If you don't want blacks, white, Scientologists, men, or anyone else in your home, it seems to me you should be free to make that choice. So if the university wants to defend the restriction on the grounds that they ban discrimination in choice of guests, I'd like to hear them do that — that would be even more scandalous than the punishment of the speech.

UPDATE: I inadvertently originally cast the last paragraph as if the university had already found the sign to be punishable; I've corrected this to reflect the fact that right now there's just a question whether the sign is punishable.

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Ninth Circuit Judges on Supreme Court Reversal: Two weeks ago, a panel of Ninth Circuit judges held oral argument at UC Berkeley School of Law. In a Q&A session following the oral argument, the three Judges (Noonan, Thomas, and Bybee) were asked to comment on the Ninth Circuit's reversal rate at the Supreme Court. Boalt student Patrick Bageant was there, and he blogged the exchange over at Nuts & Boalts as follows:
  Judge Noonan: "Typical numbers are 20 out of the 16 thousand cases that come before this court. Who is worrying? It's like being struck by lightning."
  Judge Thomas: "Well, in that case I've been struck by lightning a time or two."

  Judge Thomas: "It's largely a media myth. But you just take the reputation, like Dennis Rodman."
  Judge Bybee: "We're the Dennis Rodman???"
  Judge Thomas: "Yeah, we're like the bad boys of the federal circuit."
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William F. Buckley, Jr. (1925-2008):

The AP reports that National Review founder William F. Buckley, Jr. died this morning at the age of 82. Kathryn Lopez has an initial comment on NRO here. the NYT obit is here.

Related Posts (on one page):

  1. William F. Buckley and American Conservatism:
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The DEA's Prescription Drug Problem:

The Drug Enforcement Administration is concerned about the abuse of prescription drugs, but its solution may do more harm than good. Writing in today's WSJ, former FDA official Scott Gottleib explains that the DEA is threatening to interfere with medical practice decisions, to the detriment of many Americans who benefit from prescription drugs.

The Drug Enforcement Administration is, sensibly enough, targeting the small number of physicians who inappropriately prescribe drugs in violation of current laws, the "patients" who doctor shop for painkillers and hoard drugs to abuse or sell them, and the criminal diversion of these medications from pharmacies and distribution centers. But the DEA is also trying to influence clinical decisions about when these drugs are prescribed.

This is a mistake. Clinical issues are not the expertise of the DEA. Placing more restrictions on the legitimate prescribers can harm real patients and ethical physicians.

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The McCain Matching Fund Mess:

Senator John McCain's presidential campaign seems to have gotten itself into a little campaign finance mess by initially pledging to accept public financing, in exchange for various spending limits, and then changing its mind. Former FEC Commissioner Brad Smith provides a good overview of the law and the issues here. It provides all the background you need to understand the story.

The wonderful irony of government involvement in funding political campaigns – that is, giving your tax dollars to candidates and parties to use for convention balloon drops, negative TV ads, and campaign robocalls – is that it actually increases the perception of corruption in politics and distracts from discussion of political issues. Rarely has this phenomenon been so clearly illustrated as in the current flap over whether or not Senator McCain is committed to using tax dollars – with accompanying spending limitations – prior to his formal nomination at the GOP Convention in September.

The other delicious irony is that there are few who can match McCain's fervor for strict enforcement of campaign finance laws. Any chance this experience will change his mind?

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No Mohawks in Kindergarten:

A six-year-old boy has been suspended from a charter school kindergarten in Parma, Ohio, because he has a mohawk. As reported here, school officials concluded that his haircut distracted other students and was "disrpting the educational program" of the school. The boy's mother plans to enroll her son in another school rather than appeal the suspension.

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Hamdan's Surprise Defense Witness:

I somehow missed this news last week: Col. Morris Davis, the former Gitmo prosecutor who resigned in protest of political interference with the military commissions (see these posts), expects to be called as a witness for the defense in the trial of Salim Ahmed Hamdan. If so, Davis is expected to testify that political interference has compromised the integrity and impartiality of the proceedings. The Defense Department may bar Davis from testifying, but as Kevin Jon Heller notes, such a move would be a "PR disaster."

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Tuesday, February 26, 2008

The Case Against Government Subsidies for College Tuition:

The supposedly unbearable cost of college tuition is a hot issue in this year's presidential election. Both Barack Obama and Hillary Clinton include it in their stump speeches, as did some of the Republican candidates. Politicians are outbidding each other in proposing to increase various government subsidies for tuition payment. If government doesn't act, they claim, the middle class and the poor won't be able to afford to send their kids to college.

In reality, college is getting more affordable, not less, once you take into account the rapidly increasing income gains from getting a college degree. Far from being an essential way of helping the poor, government subsidies for college tuition are likely to harm them for the benefit of the relatively affluent.

I. The increasing benefits of college education are more than enough to pay the increasing costs.

Nobel Prize-winning economist Gary Becker has some important correctives to the conventional wisdom on the cost of college. It is indeed true that tuition rates have risen greatly over the last 30 years. But, as Becker notes, "the benefits from a college education in the form of higher earnings, better health, better educated children, and many other aspects of life have grown much faster than tuition has" (see also this excellent article by Becker and his colleague Kevin Murphy). This 2002 Census Bureau study shows that a worker with a bachelor's degree can expect to realize almost $1 million more in lifetime earnings than one with just a high school diploma. The same study shows that getting a master's or professional degree will increase your income still further (adding an additional $2.3 million in the case of a professional degree). And these figures don't include the additional income you can generate by investing some of that extra $1 to 3 million over the course of your life. If you invest even 5% of it at a reasonable rate of return, the power of compound interest will net you an additional several hundred thousand dollars of added wealth by the time you retire. The Census Bureau and Becker and Murphy both emphasize that the relative benefits of going to college have increased greatly over time, much faster than the increase in tuition costs.

Even at the most expensive private universities, four years of tuition, room, and board is unlikely to cost more than $180,000 or so (the approximate cost of four years at Harvard at maximum tuition rates). And, as Becker notes, many students (especially the poor) don't pay the full sticker price because of widely available financial aid and merit scholarships. The income gains of getting a higher education far outstrip the tuition. The vast majority of students can therefore afford to pay for college by borrowing against their future incomes, and still have an enormous income gain left over. Thus, there is no reason for government to subsidize college tuition on the grounds that it is "unaffordable" - even for those students who are unfortunate enough to have to bear the full cost themselves, without parental assistance.

II. What about college graduates who go into relatively low-paying professions?

Obviously, the $1 million figure is an average that won't hold true for every college graduate. What about those who enter relatively low-paying professions? In most cases, there is good reason for income disparities between professions: the lower-paying ones are less in demand. We want the market to channel more people to higher-paying professions for which there is more of a demand and fewer people to fields where the demand is relatively low. Subsidizing the low-paying fields by having the government subsidize college tuition undermines this efficient allocation of labor and makes us all worse off by channeling too many workers into the wrong fields.

But what if you think there is some market failure that leads to undesirably low salaries in a particular profession? Perhaps the market generates too many accountants and not enough artists. Even if you think this "problem" really exists, general subsidies for all college tuition are not the right solution. Rather, you should advocate targeted subsidies specifically for the artists (or whatever other profession you think the market undersupplies). There is no reason to subsidize those students who don't go into the undersupplied field where you think a market failure exists. Subsidizing all students indiscriminately won't do nearly as much to raise the number of artists because it won't create as much of an incentive to choose art over higher-paying fields.

It's important to remember that even income gains far below the average return to going to college are still more than sufficient to pay for tuition. For example, a college graduate who increases her lifetime earnings by "only" $400,000 (less than half the average gain) has still earned enough extra income to pay for tuition several times over.

III. How government tuition subsidies harm the truly poor.

Not only are government subsidies for government tuition unnecessary, they also victimize the truly disadvantaged people in our society: those who lack the educational qualifications to go to college in the first place (usually due to a combination of poor public schooling and a flawed family environment). These people pay some of the taxes that support subsidized tuition for college students who are likely to end up far wealthier than they are. They are also indirectly harmed by the diversion of public funds to tuition subsidies and away from other priorities that might do more to advance the interests of the truly poor. Government tuition subsidies are a classic example of a policy that redistributes wealth to the relatively affluent under the guise of helping the poor.

I don't mean to suggest that the high cost of college tuition is completely justified by increasing returns to education. In some cases, tuition has been artificially increased by government-imposed restraints on competition. In my own field of legal education, for example, tuition rates have been increased by restrictions on competition created by the American Bar Association accreditation requirement for law schools. This government-sponsored cartel has an obvious interest in raising the cost of legal education so as to reduce the influx of new lawyers who might compete with ABA members. Even in these cases, however, the right solution is not to subsidize law school tuition but to end the requirement of ABA accreditation and allow new law schools to compete with the incumbents, thereby driving tuition down to competitive market levels.

UPDATE: It's important to remember that proposals to aid students that merely subsidize their loans as opposed to give them straight grants also count as subsidies. If the loan program doesn't reduce the student's interest rate below what it would be in the private sector, there is no point to it. If it does, it's a subsidy that defrays at least part of the cost that the student would otherwise have to pay himself.

UPDATE #2: The Census Bureau figures likely overstate the true income gain from going to college in so far as some of the earnings difference between college graduates and high school graduates is likely due to differences between the two groups unrelated to education levels (e.g. - the average college graduate is likely smarter and more motivated than the average high school grad and so might earn a higher income even if he didn't go to college). However, even if the "real" income gain from going to college accounts for as little as one third or one half the pay differential between college grads and high school grads, it's still more than enough to pay for the tuition. Moreover, it's likely that the real gains are a much larger fraction of the difference than that. As Becker and Murphy point out, bachelors' degree holders today earn 70% more than high school graduates, compared to only 30% more in 1980. It's highly unlikely that today's college graduates are, on average, significantly smarter and more motivated than their predecessors of thirty years (or that today's high school grads are vastly dumber and lazier and their predecessors). Most of the relative gain is likely due to a higher real return on education. Finally, check out this study by Princeton economists Orley Ashenfelter and Cecilia Rouse, which shows that most of the income differences associated with additional years of education are in fact caused by the education itself rather than by other variables such as differences in ability and family background. The authors' estimate that each additional year of education increases the student's income by about 10%, even controlling for various background variables.

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That Could Be a Mighty Expensive Light Bulb:

The Boston Globe reports:

The [study issued by the state of Maine and the Vermont-based Mercury Policy Project], which shattered 65 [compact fluorescent] bulbs to test air quality and clean-up methods made these recommendations: If a bulb breaks, get children and pets out of the room. Ventilate the room. Never use a vacuum -- even on a rug -- to clean up a compact fluorescent light. Instead, while wearing rubber gloves, use stiff paper such as index cards and tape to pick up pieces, then wipe the area with a wet wipe or damp paper towel. If there are young children or pregnant woman in the house, consider cutting out the piece of carpet where the bulb broke. Use a glass jar with a screw top to contain the shards and clean-up debris.

Cut out the piece of carpet? How expensive will that to be replace? I've seen reports that the mercury risk is greatly overstated, but this story worries me. The $2000 toxic cleanup bill story was apparently based on an overreaction; but if this study, which is hardly anti-fluorescent, is right, those bulbs might prove very costly.

As importantly, while it sounds like the mercury danger can be largely eliminated using these cleanup tips -- expensive as they can be when carpeting is involved -- there's always a risk that the cleanup won't be done exactly right: Say, for instance, that a child breaks the bulb, and doesn't follow proper cleanup procedures, or doesn't get out of the area promptly. Of course small children should be taught to leave the area of any glass breakage in any event, but the trouble with small children is that they don't always do as they're told; I don't like the idea of adding mercury poisoning risk to the risk of glass cuts.

And I say all this as someone who has largely replaced most of the standard incandescent bulbs in my house with fluorescent ones (though fortunately for me, we have wood floors in most of our house, so at least the carpet concern is absent). Perhaps I should have stuck with my normal skepticism about environmentalist enthusiasms. Or am I missing something?

Thanks to the Wall Street Journal's Best of the Web for the pointer.

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Steven Teles' The Rise of the Conservative Legal Movement:

Steven Teles' new book The Rise of the Conservative Legal Movement is an important and insightful account of conservative and libertarian efforts to influence the law, legal institutions and the legal academy over the last 30 years. It does a good job of explaining the successes and failures of the institutions it discusses (primarily the Federalist Society, the Olin Foundation, and libertarian public interest law firms such as the Institute for Justice and the Center for Individual Rights).

As David Bernstein notes, the book is not a truly complete discussion of the subject implied by its title. Indeed, it is really more of a study of libertarian public interest organizations and academic movements than of the right of center legal movement more generally. With the exception of the Federalist Society (which, as Teles correctly notes, deliberately maintains "big tent" neutrality between libertarians and conservatives), most of the major institutions profiled in the book are either explicitly libertarian (such as IJ) or primarily focused on advancing the libertarian elements of the conservative agenda (such as CIR and various law and economics programs).

The book pays little attention to right of center legal institutions motivated primarily by religious considerations (such as Regent Law School, the Rutherford Institute, etc.) or to the social conservative backlash against liberal efforts to use the courts to protect "obscene" speech, extend abortion rights, and limit government "entanglement" with religion. Teles does note that these causes have gained relatively less ground in the academic and public interest worlds than libertarian ones and suggests that courts might be better vehicles for efforts to limit government power (as libertarians seek to do) than for efforts to expand or protect it (as social conservatives wish to do in those areas where they disagree with libertarians). This is an intriguing thesis, but warrants more systematic discussion than Teles is able to give it in this book. A greater focus on social conservative legal movements might have enriched Teles' analysis and provided him with a good comparative foil for assessing the more libertarian organizations he focuses on.

Despite this limitation, Teles' book is still by far the best academic analysis of recent right of center efforts to influence the law. In upcoming posts, I'm going to consider Teles' insightful analysis of particular institutions in more detail.

UPDATE: I have removed the Becket Fund for Religious Liberty from the list of conservative legal organizations motivated primarily by religious considerations. As Eric Rassbach of the Becket Fund pointed out to me in an e-mail, the organization is in fact secular in nature, even though it focuses on protecting religious liberties.

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So Is It Just Me, or is the Associated Press's article, "Justice Thomas Silent Through More Than Two Years of Supreme Court Arguments," really rather lame? The "story" here, as reported by Mark Sherman, is that Justice Thomas hasn't asked a question at oral argument in two years. That's right, two years. So the old story that the press has reported on often is that Justice Thomas almost never speaks at oral arguments. The new story is that the silence has reached a two-year mark. What's next — another story at the three-year mark? Or maybe a story when Thomas next asks a question?

  What makes these sorts of stories unfortunate, I think, is that they tend to misrepresent the significance of Thomas's silence. Most readers assume that the Justices use oral argument to learn about the lawyers' arguments. If you make that assumption, then not asking questions suggests a lack of interest in learning about the Court's work, which is obviously pretty bad. In her commentary on the AP story, Dahlia Lithwick helps this misimpression along by suggesting that Justice Thomas not only doesn't ask questions, but acts like he's not interesting in being there.

  But my sense is that much of the questioning at the Supreme Court is about persuasion — by the Justices, not of them. Supreme Court arguments can be kind of like jury trials in which the Justices with strong views act as the lawyers; the lawyers before the Court act as the witnesses; and the swing vote Justices play the role of the jury. In these cases, the Justices with strong views often ask questions like a trial lawyer might examine a witness. Friendly witnesses tend to get softballs and open questions designed to elicit favorable testimony, while hostile witnesses often get leading questions designed to expose the weakness of the opponent's case.

  Viewed from this perspective, oral argument can become sort of like a chaotic combined direct and cross examination, with much of the questioning designed to persuade the "jury" of the swing votes — formerly O'Connor, now Kennedy. It doesn't happen this way in every case, I should emphasize, but the dynamic is often present. (The questions of the swing-vote Justices don't fit into this framework, as they are usually focused on figuring out their own votes rather than trying to use questions to persuade other Justices.)

  If you have this understanding of oral argument, the meaning of Thomas's silence is pretty different than what the public might think from reading the news reports about it. Justice Thomas has strong views of his own, and yet he is not interested in "playing the game" at oral argument of trying to use questions to persuade swing votes. Maybe that's a good thing, and maybe it's a bad thing. But it's quite different from suggesting a lack of interest in the Court's work.
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Clinton, Obama, and Health Insurance Mandates

As a centerpiece of her now-uphill battle for the Democratic presidential nomination, Hillary Clinton continues to attack Barack Obama because his healthcare plan does not call for an individual insurance mandate -- that is, a requirement that all Americans purchase a health insurance policy -- whereas her proposal, like the recently-scuttled Schwarzenegger-Nunez bill in California, includes such a mandate.

Whether the government should require everyone to purchase health insurance is a difficult issue about which reasonable people may differ. (Full disclosure: I am an unpaid member of a health care policy advisory committee for the Obama campaign, but I personally favor individual mandates as part of comprehensive health care system reform). But the sound argument to be made in favor of mandates is very different from the one reiterated daily by Clinton. As a result, her criticisms of Obama on this point are wrongheaded and disingenuous. Let me explain:

Clinton alleges that, simply because it includes a mandate, her plan would lead to universal health insurance while Obama's would not. This is not true. Obama would institute health insurance market reforms and subsidize health insurance policies for the poor, making insurance more affordable, but he wouldn't require adults to purchase insurance, at least at first. (He is open to mandates down the road if, after the reforms and subsidies reduce costs, a large number of healthy "free riders" still do not buy coverage). Clinton wants to require all Americans to purchase health insurance, but she refuses to describe how she would enforce such a requirement. Just as many drivers get behind the wheel of a car without coverage in spite of auto insurance mandates -- 25 percent of Californians, according to estimates -- many Americans simply would ignore a health insurance requirement. Massachusetts mandates that individuals buy health insurance and even threatens fines if they do not, but 20% of that state’s citizens still remain uninsured.

Mandates would reduce the number of uninsured Americans significantly only if accompanied by the strict enforcement of a severe penalty, such as garnishing the wages of anyone who fails to submit proof of insurance with their income tax return. Clinton has refused to propose a penalty and enforcement structure for the mandate that she trumpets so loudly, and she has dodged the question of whether she would exempt the poor from the requirement. This makes her call for mandates meaningless rhetoric, and the claim that her plan would cover everyone false.

What makes Clinton's criticism of Obama really off the mark, though, is that she is trying to market mandates as a benefit for the large number of currently or potentially uninsured Americans, when mandates actually are a concession to constituencies that otherwise might favor the status quo against attempts to make insurance more affordable. Auto insurance mandates are good for the people who might be hit by an uninsured motorist, but they are hardly welcomed by the uninsured who feel, rightly or wrongly, that they can't afford coverage. Similarly, health insurance mandates are good for people with insurance, employers who would be forced to pay into an insurance pool, and private insurers who would face greater regulation under a reform plan, because expensive subsidies that would be required to help the "sick" uninsured to purchase coverage would be at least partially offset by requiring the "healthy" uninsured to contribute their fair share to the system. But telling someone without insurance that the government will force him to buy it at whatever price the market charges is unlikely to convince him that his problem is solved.

To see why Clinton's argument is nonsensical, consider that the country could achieve nearly universal health insurance immediately simply by enacting an individual mandate coupled with a truly draconian penalty for non-compliance. But so what? This would be good for Blue Cross, Health Net, and Aetna, but the worried middle class wouldn’t sleep any better at night knowing the government was going to force it to buy unaffordable insurance than knowing that it might have to go without unaffordable insurance. Clinton understands this, of course, which is why she refuses to discuss penalties or enforcement.

Clinton could reasonably argue that, as president, she would need to accept an individual mandate in order to win Congressional backing for market reforms and subsidies that would truly help the uninsured. Instead, she chooses to claim that mandates are themselves the goal, because doing so allows her to falsely charge that Obama is less committed than she is to the real goal of making affordable health insurance available to all. Her choice of tactics can be rooted only in a cynical belief that her attacks can succeed because the issue is just too complicated for most voters to understand.

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Correction from Dan Klein:

Dan Klein has asked me to post the following correction and apology with respect to the comment that I posted on his behalf the other day on the recent article in the Chronicle of Higher Education:

Dear Volokh Readers:

Todd Zywicki recently posted an item by me, at my request. In the item I accused Robin Wilson, a journalist for the Chronicle of Higher Education, of deliberately omitting pertinent research results from an article she wrote in the Chronicle about conservatives in academia. I said that in a telephone conversation with Robin Wilson I had explained to her my research results about Republican scholars disproportionately landing outside academia. After my remarks were posted, Ms. Wilson emailed me and recounted her notes from the telephone conversation. She showed no record of such material having been discussed in our conversation, which was more than four weeks ago. I do not doubt that Ms. Wilson has recounted her notes honestly. I believe I am entirely in the wrong, that I confused telephone conversations I had had. I've talked and emailed to several people about my results in relation to paper Ms. Wilson highlighted in her article, and I thought I had always made those points, but I guess not. I apologize to Ms. Wilson. My error probably caused her grief entirely undeserved. I apologize also to the Chronicle for the false accusation, and to Todd; he bears no responsibility for the error. And I apologize to readers of this site, for my not taking proper care when making an accusation and hence spreading false information.

Daniel Klein

Dan has also asked me to delete his comment in the earlier post so that the record is clear going forward, which I have agreed to do.

Criminal Law in Virtual Worlds: I have just posted a draft of an essay, Criminal Law in Virtual Worlds, forthcoming in the University of Chicago Legal Forum. Here's the abstract:
  When does conduct by an online player in a virtual world game trigger liability for a real-world crime? In the future, will new criminal laws be needed to account for new social harms that occur in virtual worlds? This short essay considers both questions. Part I argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. Existing law will not recognize virtual murder, virtual threats, or virtual theft. Virtual worlds will be regulated like any other game, but their virtualness normally will have no independent legal resonance from the standpoint of criminal law.
  Part II turns to the normative question: Are new laws needed? It concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds. Virtual worlds at bottom are computer games, and games are artificial structures better regulated by game administrators than federal or state governments. The best punishment for a violation of a game comes from the game itself. Criminal law is a blunt instrument that should be used only as a last resort. The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy.
  Online virtual worlds may seem real to some users, but unlike real life, they are mediated by game administrators who can take action with consequences internal to the game. Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere.
As always, comments are very much welcome.
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Who Would Barack Obama Nominate to the Supreme Court?: When asked back in a November primary debate to say what kind of Justice he would want to nominate to the Supreme Court, Barack Obama responded:
  I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.
  . . . [S]ometimes we're only looking at academics or people who've been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.
  Does anyone know of additional statements Obama has made in response to the same question (or similar ones) before or since? Obama made some statements about these issues when he announced his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, but I don't know how much else is out there.

  UPDATE: Here's another statement Obama made:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
  UPDATE: Over at Slate, Emily Bazelon suggests that Obama would want to find a confirmable candidate who would vote like a Brennan or a Thurgood Marshall:
On Obama's staff, [the] absence [of a Thurgood Marshall-type Justice] is also keenly felt. How to fix that? "We'd want a nominee who would do what John Roberts did," one staff member said. "You go through the process and say 'Hey, I'll look at each case as it comes.' You have a moderate temperament. You're affable and everybody likes you. And then you get up there, and after a year and a half, you vote on the opposite side from John Roberts in every single case where that's warranted and it matters."
UPDATE: Commenter GMUSL'07 writes, "And this guy went to Harvard Law? This is one of the most twisted misconceptions of a Judge's role that I've ever seen." I went to Harvard Law a few years after Obama, but his view of the judge's role was by far the dominant view among the Harvard Law School faculty and student body when I was there in the mid-1990s. Those that questioned this view were generally told that they should join the Federalist Society — and the Federalist Society had very few members.
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Focusing on Only One Risk:

A comment on the smart guns thread captures an argument I'd also seen from others:

As the owner of a self-defense gun, I want just one thing: A 99.9999+ percent probability that, when I pull the trigger, I will hear a 'BANG' and not a 'click.'

The existing, 100-year old, low-tech technology comes pretty close to delivering that level of confidence, and any 'smart-gun' innovations are only going to lower the probability of firing; so why take the chance?

Even if the probability of a successful firing is 'only' reduced from, say, 99.9999 to 99.9998; that's logically equivalent to doubling the rate of mis-fires. Why risk it? If you're worried about your kids, keep your gun in a safe -- or, better yet, take your kids to the firing range and educate them on safe firearms handling at an early age.

This, it seems to me, illustrates well a common problem that also appears in arguments for restricting guns (and, I'm sure, in arguments on many topics): A focus on one risk to the exclusion of others.

Keeping my gun in a safe, after all, reduces my probability of a successful firing by much more than 0.0001%. I'd rather have a gun I can keep unlocked and loaded by my bedside at night that's 99.9% reliable than a gun in a safe that's 99.9999% reliable but that I'll have a 5% chance of not reaching in time.

In a sense, this is the same sort of error that people make when they say "if gun control can save only one life, it's worth it," or when they use "safe gun storage" to mean storage of a gun in a locked safe. Those who make these arguments ignore the possibility that gun controls may cost lives (for instance, by preventing many effective self-defense uses), or that a gun that can't be reached to protect yourself in time isn't "safe[ly] ... stor[ed]." Likewise, the argument I quote focuses exclusively on the costs to self-defense of "smart guns," and ignores the costs to self-defense of the alternatives that the argument itself puts forward.

Of course, the argument also understates the costs of another alternative that it puts forward, by overstating the effectiveness of "education." Of course I'll "educate [my boys] on safe firearms handling at an early age." But I'm educating them to do lots of things -- not cry, not eat too many sweets, not fight with each other, and so on. With luck, over time the education will teach them to behave well. But there will always be lapses, especially when the children are relatively young. I'm not going to rely on safe firearms handling education to keep a 10-year-old boy from playing with a gun; it may decrease the chances of his doing so, but it won't reduce them to zero or to anything close to zero.

If I lived in an extraordinarily dangerous part of town, I might think the risk avoided by having an unlocked gun by my bed will exceed the risk created by it to my boys. (As I said, it's always a mistake to focus solely on one kind of risk.) But fortunately I live in a pretty safe place, so I'm not going to keep the gun outside the safe for many years to come.

It's only safe gun technology -- if such a thing is feasible -- that would lead me to keep the gun immediately handy. And, as I mentioned before, for that the reliability need not be 99.9998%. It only needs to be higher than the effective reliability of a locked gun, factoring in to the effective reliability the delay that unlocking the gun would create.

Related Posts (on one page):

  1. Focusing on Only One Risk:
  2. "Smart Guns":
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A New Kind of Law School Ranking: In a forthcoming issue of The Green Bag, Editor-in-Chief Ross E. Davies announces that the Bag will introduce a new kind of law school ranking: The Deadwood Report. Davies explains:
  Law schools generally hold themselves out as institutions led by faculties whose members are committed to teaching, scholarship, and service. This does not mean that law schools employ some faculty to teach, some other faculty to engage in scholarship, and some other faculty to engage in service. Rather, faculty members contribute in all three areas. . . .
  The Deadwood Report will simply test the accuracy of that picture. Our focus will be on the most dully objective of measures: whether the work is being done – whether each law school faculty member is teaching courses, publishing scholarly works, and performing pro bono service. . . .
  Bearing in mind that we will inevitably have to work out kinks as we go along, we plan to proceed roughly as follows:

  Step 1: We will download a law school’s web pages containing (a) its list of “faculty”; (b) its current and recent course schedules and catalogs; and (c) its individual faculty profile pages containing vitas or lists of publications.
  Step 2: We will compile our data. We are interested in providing information about the current state of a school’s faculty, so our focus will be on recent scholarship and recent teaching (and, in due course, recent service). A school whose faculty is heavy with people who used to be active might do well in a citation or reputation study, but it will do poorly in the Deadwood Report. After all, should today’s students be enrolling in schools where the faculty used to be engaged, or in schools where the faculty is engaged now?
  Step 3: We will analyze. We are still working on the finer points of our sorting and weighing of various kinds of teaching and scholarship, but we are committed to a few basic ideas, including the following: First, we are interested in well-rounded, active faculty members, and so we will give more weight to the moderately active teacher-writer than to the hyper-writer who neglects teaching or the hyperteacher who neglects writing. A specialist in neglecting both won’t be worth much. Second, we are interested in wellrounded, active faculties, and so we will seek to avoid perpetuating illusions of faculty strength that can result when one or two or a few members of a faculty publish and teach a great deal, while the rest do relatively little or nothing. . . .
  Step 4: We will send each school’s dean our school-specific preliminary results, and invite him or her to send us a reasonably quick response identifying any inaccuracies in our work or on the school’s website.
  Step 5: We will correct our errors. Then we will re-visit each law school’s website and incorporate any corrections we find there.
  Step 6: We will publish our results.
  Step 7: We will do it all over again for the next school year.
  Inside Higher Ed has an interesting story on the proposal, together with reaction to it from the likes of Brian Leiter, Carl Monk, and David Van Zandt.

  I don't know if the rankings will be useful, but I would wager that the existence of "The Deadwood Report" causes law schools around the country to make sure that their websites have this information readily available and fully up to date. And if that's right, the Deadwood Report will be a success.
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"Hamas Children TV Bunny ... Threatens to Kill Danes over Muhammad Cartoons":

This is on Al-Aqsa TV, which is run by Hamas, the governing party in the Palestinian Authority territories. Here's a photo of the bunny and Saraa Barhoum, the child host of the show:

Here's the transcript, from MEMRI:

Saraa: "How did these Danes have the audacity to affront the Messenger of Allah? Do you have an answer to that, Assud?"

Assud: "No, I don't. Maybe because the Arabs and Muslims keep silent, [the Danes] humiliated them and did these things to them."

Saraa: "That's one reason, but there is an even more important reason, Assud."

Assud: "I have no idea."

Saraa: "It's because the West has seen that we've moved away from the religion of Allah, and from the Sunna of our Prophet Muhammad. They have also seen that we have forsaken the religion of Allah, and therefore, they could affront the Prophet, because... We have done nothing to redeem the Prophet Muhammad. But I say to them: You haven't seen anything yet. Allah willing, the soldiers of the 'Pioneers of Tomorrow' will redeem the Prophet Muhammad with all that they possess, and even with their blood, Assud. They will not allow them to do this again."

Assud: "If they do it again, Saraa, we will kill them, right?"

Saraa: "Allah willing."

Assud: "I will bite them and eat them up."

Saraa: "Yes." ...

Saraa: "What do you have to say to the cartoonist who started all this, and affronted the Prophet by drawing him?"

Assud: "He's a criminal..."

Saraa: "Yes, a criminal."

Tasnim, by phone: "I say to him, and to all of them, that no matter how much they try to hide him, we will manage to kill him, to assassinate him."

Assud: "Allah willing." ...

MEMRI links to the video; if you can identify any problems with the translation, please e-mail me about them. [UPDATE: Thanks to reader bonhomme for the screen shot that shows the bunny and the child host.]

Thanks to Lou Offen for the pointer.

UPDATE: Sean O'Hara wins, with extra credit for the religious reference: "Where's the Holy Hand-Grenade of Antioch when you really need it?"

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Haynes to Leave DoD:

The Department of Defense announced yesterday that William J. Haynes will be stepping down from his post as DoD General Counsel. Haynes' tenure was particularly controversial, due to his involvement in the development of rules governing the detention and interrogation of enemy combatants. He was also nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, but his nomination never went very far. A handful of Senate Republicans joined Senate Democrats to stall his confirmation.

Over at Obsidian Wings, Hilzoy is dancing and "cackling with glee" at the news.

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The Influence of the Olin Programs in Law and Economics at Yale Law School and Otherwise:

In The Rise of the Conservative Legal Movement, Steven Teles discusses the success of the John M. Olin Foundation programs in helping to establish law and economics as a force to be reckoned with in American law schools, especially at the elite schools.

Undoubtedly, the Olin programs were a great success on many levels. Teles notes, however, that as law and economics became more "mainstream" it also began to take on certain mainstream characteristics that are unlikely to be pleasing to those who ran the Olin Foundation: like academic economics, it has come to be increasingly dominated by moderate liberals, not the free marketeers preferred by Olin, and, like academic economics, it has become increasingly mathematically oriented and therefore less directly of interest to noneconomists in the legal academy who don't "speak the language."

Nevertheless, when I read work from other disciplines, or attend interdisciplinary conferences, like the annual American Society for Legal History conference, the effect of the spread of economic sensibilities on legal academia is rather apparent. Historians and others not affiliated with law schools are far less likely to be sensitive to economic reasoning, including public choice reasoning, than are law professors with similar interests, and far more likely to throw out vague phrases with obvious economic connotations without defining their terms.

To put it another way, I suspect that at most respectable American law schools, a speaker presenting a paper on 19th century labor reform who talks about "exploited workers" will be asked to define what he means by "exploited," if he didn't already anticipate that question in his remarks. From my experience, in other disciplines not only would such a speaker not likely be asked to define the term, the speaker wouldn't be able to provide a rigorous explanation if asked, and indeed had never considered what "exploited" means beyond the idea that any poor worker can be deemed exploited in a quasi-Marxian sense. Similarly, in law schools, unlike in history departments, a speaker who presents a paper about the historical triumph of some seeming good cause will likely be asked whether there is an alternative "public choice story" casting some doubt on the public-spiritedness of the relevant campaign. When I was a new professor in the mid-90s and attended ASLH conferences with my George Mason affiliation displayed on my name tag, I occasionally got comments from older attendees along the lines of "George Mason! Hmmph! I hope you [law and economics] people aren't planning to do to legal history what you've done to other subject areas."

Teles also points out that when Olin funded programs at elite law schools, it had very limited control over how its money was used. Olin officers, however, figured that economics was inherently more "conservative" and "scientific" than the vast majority of what was going on in law schools, so diverting resources to law and economics would be most likely be beneficial to its cause.

While that was likely true, in some cases it's hard to see that Olin got much bang for its buck. For example, Teles quotes a 2000 memo from the Foundation expressing great satisfaction over the success of its fellowship program at Yale Law School, noting, for example, that "sixty-one former JMO [John M. Olin] Fellows hold professorial positions at American law schools." Teles suggests that "some of this perceived success with students was simply a function of attaching the Olin brand to future lawyers who would have ended up succeeding regardless."

That, in my experience, is an understatement. My understanding is that at other law schools, Olin Fellows received special financial assistance, attended special seminars, and otherwise received benefits that other students did not, thus tempting some of the most promising students into exploring, or retaining an interest in, law and economics. At least when I went to Yale, this wasn't true. Yale had a strict policy that the Law School gave only need-based financial aid. So, Olin money was used to provide financial aid to students who would have otherwise received financial support directly from the law school. The result was no net additional aid to Olin Fellows, and the freeing up of law school resources for what Olin would likely have thought to be generally nefarious purposes.

Moreover, I was an Olin Fellow, and I don't recall any other particular benefits to, or requirements of, the fellowship, other than an annual invitation to attend a reception at one of the co-directors' houses. There was a weekly law and economics workshop that students could attend as a one-credit course, but my recollection is that this workshop was open to all students, and was not mandatory for Olin Fellows.

That's not to say that Olin had no effect on the Yale Law School. It funded the important faculty program run by George Priest (and co-directed by Susan Rose-Ackerman when I was there), and also provided stipends for Summer research for students interested in law and economics. And perhaps the tens of thousands of dollars Olin annually spent on student scholarships was necessary to persuade skeptics on the law faculty to tolerate the presence of the general Olin program.

In any event, it's true that having the Olin fellowship on one's c.v. provided a signal to potential future employers, including judges and hiring committees, that one had an interest in, and perhaps a talent for, law and economics. But it's unlikely that the fellowships themselves significantly changed the career interests or trajectories of their recipients. I was somewhat surprised to discover that the staff at Olin apparently believed otherwise.

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Cylon Politics and Religion:

The final installment of Concurring Opinions' interview with the creators of Battlestar Galactica is now available here. This part focuses on the Cylons.

Personally, I find the Cylons less interesting than the rest of the BSG setting. The issues they raise (e.g. - the moral status of intelligent artificial life) have been done to death in earlier science fiction. Moreover, it's very difficult to take the moral claims of the Cylons seriously in light of the fact that they have just exterminated tens of billions of innocent people and nearly wiped out the human race. Some interesting issues are raised by the Cylons' monotheistic religion (contrasted with the polytheistic paganism of the series' humans). BSG co-creator Ronald D. Moore deserves credit for being one of the few producers of science fiction TV series willing to take religion seriously (which he also did in his earlier work on Star Trek: Deep Space Nine - the best of the Star Trek TV series in my distinctly minority view).

Most people raised in the Christian, Muslim, or Jewish traditions unquestioningly assume that monotheism is clearly superior to polytheism. By making the "bad guys" dogmatic monotheists and the "good guy" humans a combination of polytheists and atheists, BSG questions that assumption.

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AntiSlavery Courts: In the latest issue of the Yale Law Journal, Jenny Martinez has a fascinating article on 19th century anti-slavery courts: Antislavery Courts and the Dawn of International Human Rights Law. Plus, Jenny has posted photos of some of the original documents from these courts over at the YLJ Pocket Part. Very cool.
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Monday, February 25, 2008

Teles's The Rise of The Conservative Legal Movement:

I've just read this book, and it's very interesting, and recommended to anyone interested in, well, the rise of the conservative legal movement.

I should note, however, that the book is not a comprehensive look at its subject matter. The book focuses on the intellectual and organizational history of law and economics, select (non religiously based) conservative public interest firms, and the Federalist Society. You won't find much if anything here about, to take some examples off the top of my head, Reagan's appointment of prominent academics such as Posner, Easterbrook and Winter to the federal appellate courts, clerkship selection by Justice Scalia, the Manhattan Institute's civil justice program, the role of the Institute for Humane Studies in nurturing future libertarian and libertarian-ish law professors, the nomination of Clarence Thomas to the Supreme Court, the Rutherford Institute, or Regent Law School, among many other pertinent subjects.

I'll have some more detailed comments over the next several days. But I'll start with the one "correction" I have from personal knowledge. Teles attributes the idea for the Federalist Society's Olin fellowships entirely to Professor Gary Lawson. Lawson was responding to a query from Gene Meyer, the Society's president, regarding how the Society could most efficiently help its members pursue academic careers. I had a very similar conversation with Meyer, responding to the same query. Having spent the 1994-95 academic year as a research fellow at Columbia Law School, I made the same suggestion independent of Lawson. I don't know who suggested it first, and it's entirely plausible that Meyer was far more impressed with Lawson's "pitch" than with mine. Still, while it's not exactly like I came up with a cure for cancer, I'm proud of the successes of the fellowship alumni.

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Palestinians as "the most oppressed people on Earth"

I've seen various Internet sites claiming that in Iowa, Senator Obama called Palestinians "the most oppressed people on Earth." Can commenters supply information about an original source (rather than a third-hand Internet claim) about whether Senator Obama really said this? Even if one accepts the theory that Israel is entirely responsible for Palestinian "oppression," and that the Palestinians (unlike, for example, the East Germans in 1946) bear no responsibility for their current situation, it seems preposterous for anyone to believe that Palestinians are more oppressed than, say, Darfuris or North Koreans. Accodingly, I hope that the quote is just an unfounded Internet rumor.

Update: Impressively fast reader comments explain that Obama never said such a thing; the "quote" is a very garbled version of something he did say, and which is a very mainstream observation.

Further update: I participate in the ListServ of the National Council of Editorial Writers. One of the main purposes of the ListServ is to provide information about astroturf letters to the editor, or about other LTE issues. I sent a memo to the ListServ explaining that the purported Obama quote is fake; thanks to VC commenters for helping to expose the truth about the false quote.

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"Smart Guns":

Doug Berman (Sentencing Law & Policy) asks how "smart gun" technology is doing. I take it that "smart gun" here means technology that can keep unauthorized users from using a gun (e.g., some sort of fingerprint recognition technology, though that's just one example), but would still leave the "smart gun" as effective as a normal gun for self-defense.

I'd love to hear people's thoughts on this, but let me suggest one broader point: My sense is that gun manufacturers have plenty of incentive to develop good technology if such a technology is feasible. If they aren't developing it, that's a pretty good sign that smart guns would either be prohibitively expensive or insufficiently reliable, at least without vast technological advances.

I say this because gun manufacturers face a rare problem: Many of their customers (the ones who aren't gun collectors or otherwise gun enthusiasts) are going to give them nearly no repeat business. I have my Glock in my gun safe and it works just fine for me (that is to say, it would work fine if I could get it out of the safe in time, which I hope I could). It will probably work for decades if not centuries. Glock will get no more money out of me or many other people like me for a long time, precisely because it's created such a reliable and long-lasting technology.

The only way they can sell more to people like me -- people who have shown a willingness to buy guns, and therefore seem like a desirable market segment, but who have all the guns they need already -- is by offering me something a lot better than the original. A gun that my kids can't fire without my permission would qualify; I'd definitely buy it if it were affordable and reliable. I'd imagine that many gun owners who have children would do the same; so would many police departments who are worried about criminals' grabbing guns from a police officer in a scuffle. Whoever patents and develops such a workable technology (whether that's an existing gun manufacturer, a start-up, or a company that's in some other line of business, and whether here in the U.S. or abroad) could sell billions of dollars' worth of guns in the span of only a few years, as many millions of gun-owning parents decide to upgrade to the safer versions.

My guess, then, isn't that the gun manufacturers and other manufacturers are sitting idle and neglecting to do research in this area. Rather, it's that people who know have looked into this, and the problem is much more difficult than it appears, especially given the necessary level of reliability that gun owners rightly expect from their weapons.

Related Posts (on one page):

  1. Focusing on Only One Risk:
  2. "Smart Guns":
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"Unacceptable" that Islam and Muslims Are "Represented ... as the Enemies of Freedom of Speech":

From a press release at the Organization of the Islamic Conference site:

He [the Secretary General of the Organization of the Islamic Conference Prof. Ekmeleddin Ihsanoglu] also found it unacceptable that Islam as a religion and Muslims as a whole were represented, through this campaign of hatred of the Danish media, as the enemies of freedom of speech.

After all, "the Muslims have no problem with the freedom of speech as a fundamental human right, but [are] only expecting a minimum level of respect and responsibility in the exercise of this right."

Well, here's my thinking: If you think that it's unacceptable that people are representing your ideological system as an enemy of free speech, then don't argue that it should be a crime to publish cartoons that criticize your Prophet, or for that matter that it should be a crime to publish any "advocacy of ... religious hatred that constitute[s] incitement to ... hostility ...." Calls for such censorship (even when coupled, as in the statement, with denunciations of private violence) themselves lead to eminently justified hostility towards the religious view that promotes the censorship.

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Draw This Cartoon and Be Chased Out of Your Homes:

Kurt Westergaard is a Dane who drew this cartoon (one of the famous twelve cartoons):

Now, Der Spiegel reports:

[Westergaard] was booted from his police-protected hotel room on Feb. 15 for being "too much of a security risk." ... Westergaard was forced to leave his actual residence in November after the Danish security and intelligence agency, PET, informed him of a "concrete" plan to murder him, according to the paper that originally published the cartoons, Jyllands-Posten. Westergaard and his wife have been living under police protection since.

PET had been gathering information about the plot for several months, leading to a Feb. 12 raid carried out in the western Danish city of Aarhus. Five suspects — "people with a Muslim background," with both Danish and foreign citizenship — were taken into custody. The Associated Press quoted PET as stating that the raids were intended "to prevent a terror-related murder ... [and to do so] at an early phase to stop the planning."

The article goes on to quote a Danish Muslim leader who is speaking out against any violence, and I'm glad to hear that. Unfortunately for Westergaard, that might not be enough.

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Paul Mahoney Named New UVA Dean:

Congratulations to Paul Mahoney who has just been named the new Dean of UVA Law School (my alma mater). A great choice for UVA. Good luck to Paul and congratulations to UVA for a wise choice.

Also as a UVA alum I'd like to express my gratitude John Jeffries for his leadership and stewardship of the law school over the past several years.

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Gaza, Collective Punishment and Newspeak:

My colleague Michael Krauss explains why Israel is not violating international law when it declines to trade with Gaza.

The Road to Serfdom:

Here's what an article in this week's issue of The Lancet suggested. (Note that this was covered in the New York Times; The Lancet is a very prominent medical publication.)

Although the active recruitment of health workers from developing countries may lack the heinous intent of other crimes covered under international law, the resulting dilapidation of health infrastructure contributes to a measurable and foreseeable public-health crisis. There is now substantial evidence of state and organisational involvement in active recruitment of health workers from developing to developed nations.

There is no doubt that this situation is a very important violation of the human rights of people in Africa. In recent years, international law has developed the notion of international crime to strengthen the accountability of individuals for serious violations. One indication of the gravity of acts and that they deserve treatment as international crimes that has been developed by the International Criminal Court is that they create social alarm. Active recruitment of health workers from African countries is a systematic and widespread problem throughout Africa and a cause of social alarm: the practice should, therefore, be viewed as an international crime. [Emphasis added.]

What a way of looking at the world -- though of course nothing remotely new. Your country needs your medical services. Therefore, it's wrong for others to steal you away from your country, since you're the country's property. In fact, this theft is an international crime.

That's what the logic amounts to, it seems to me, though of course for all the best of intentions. The proposal doesn't just call on rich organizations (or even rich countries) to fund medicine in poorer countries, or to teach those countries how to provide medicine more effectively, or to reduce regulatory barriers to good medical care in those countries. Rather, it tries to use international criminal law in a way that blocks people from moving towards a better life for themselves and their families (including their families back home, whom they can support through remittances) -- to keep people where they supposedly belong, in the place that's entitled to their services and to coercive government action aimed at preventing the loss of those services.

Now it's true that the proposal doesn't (yet) cover "passive" recruitment, which is to say simply hiring someone who comes from a country that needs the person more than you do. The article reports: "We, of course, recognise that while there is a right to health for everyone, there are also health-workers' rights to consider. Health workers should have freedom of movement and choice of where they live and work, just as any workers should."

But surely this "active recruitment" doesn't consist of sitting on people's doorsteps and nagging them until they break down and agree to move to a richer country. The health workers who move in response to the active recruitment are exercising their freedom of movement and choice of where they live and work. The active recruitment simply informs them about where the opportunities are, plus helps them lift barriers to the exercise of their rights (legal barriers, by providing "legal assistance with immigration," and economic barriers, by providing "guaranteed earnings, and moving expenses"). It makes no sense to say "of course, we recognise your rights to freedom of movement and choice of where you live and work; we'll just make it an international crime for people to lift legal, economic, and informational barriers to your exercise of those rights."

And the logic of the proposal surely casts into doubt even the health-workers' right to move entirely on their own. After all, the rationale is that "Without immediate actions to discourage migration, the health consequences for Africa are dire," and "Current international treaties and commitments are severely compromised if we are unwilling to adhere to their principles and prevent obvious harms to poor people." The consequences are "dire" and the "harms to poor people" present even if the health workers emigrate without outside "entic[ement]," for instance when they learn about opportunities and get legal and economic help from relatives or friends rather than from recruitment agencies.

Once you take the view that it's an "international crime" to urge or to help someone exercise his rights, you've undermined his practical ability to exercise his rights, and you've also gone a long way towards denying his moral entitlement to those rights. That is the road to serfdom, with each medical professional being the property of the lord of his manor (the local government, though of course speaking on behalf of the people).

Thanks to Michael McNeil for the pointer.

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Durrenmatt bleg:

Does anyone have a copy of Durrenmatt's Der Besuch der alten Dame in German? If it contains the "Anmerkung" at the end (in German), I would appreciate a copy of that part, with the title pages. Thanks!

Related Posts (on one page):

  1. Durrenmatt bleg:
  2. German question:
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Some Random and Humorous Political Stuff:

1. If you haven't seen Mike Huckabee's funny appearance on SNL this weekend it is here (watch to the end).

2. Here is the SNL skit on the Obama-Clinton race.

3. Funny line by one of my colleagues the other day: "Hillary's struggles can be attributed to the fact that the Democratic Party doesn't want to have two Yale-educated lawyers in the White House again. Obviously they want something completely different."

4. Does it seem to anyone else like this dubious NY Times story from last week has been a great windfall for John McCain? It certainly has united conservative talk radio and the blogosphere on his side against the "common enemy" (at least temporarily).

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Are Cubans Satisfied With their Government?

Economist/blogger Michael Stastny has recently returned from a trip to Havana, Cuba, where he was surprised by the extent of the "misery and decay" that he found (hat tip Arnold Kling). He has some interesting observations for those who still believe that Castro's Cuba is a paradise for the common people. It's worth keeping in mind, also, that Havana is likely to be far better off than the most of the rest of Cuba. Like other communist regimes, the Cuban government pours a disproportionate share of its resources and public investment into the capital and areas likely to be frequented by foreigners. Other parts of Cuba are likely to be much worse off - especially those where foreigners are not allowed to go.

Stastny is no apologist for Castro. But I think he may be somewhat misguided in this passage from his post:

Unfortunately, Cubans don't have access to "world news" (no foreign newspapers, no internet, no satellite dishes), so the people I talked with were actually quite happy with their situation ("We don't earn much, but as opposed to other countries education and health care is for free!" (translation mine)) and couldn't see that people in developed countries who are considered as dirt poor have a way higher living standard (I didn't have the impression that they were afraid to speak openly).

There is no way to know for sure whether these particular Cubans were genuinely ignorant of the higher standard of living in other countries. However, I doubt that such ignorance is generally prevalent in Cuba. After all, if they didn't know that life in many other nations is far better, why would thousands of Cubans be risking their lives to flee the country? Not only for the wealthy United States, but even for much poorer destinations, such as Puerto Rico, the Dominican Republic, and even Haiti.

If the Cubans Stastny spoke too were not as ignorant as they seemed, why would they lie to him? Perhaps because Cuba has an extensive secret police that regularly tracks down and punishes dissenters, especially those who air the regime's dirty laundry to foreigners. As the Black Book of Communism notes (pp. 655), Cuba's DGCI has "thousands" of agents and anyone coming into contact with foreigners is particularly likely to be monitored; there is even a special division of the agency specifically tasked with monitoring foreign visitors (a standard practice in communist states, which the Cubans likely copied from the KGB).

I'm not saying that the DGCI is so efficient that it can detect and punish any Cuban who says anything critical to a foreigner. But even a small chance of being caught and punished is likely to be enough to deter many people from expressing dissent. How many Americans would be willing to openly criticize their government if doing so carried even a 5% chance of arrest and imprisonment by a brutal secret police?

It's true that Stastny had the "impression" that the people he spoke to were "not afraid to speak openly." But people living under a highly repressive regime learn to be skillfull liars and to keep their innermost thoughts to themselves - especially around foreigners or in other situations where the secret police are likely to be watching.

Stastny's understandable error is part of a more general problem that Westerners have in assessing the statements of people living under oppressive governments. Too often, they take parroting of government propaganda at face value.

None of this means that there aren't lots of Cubans who genuinely support Castro's regime. Even the most oppressive government has its beneficiaries. Moreover, fifty years of communist indoctrination has surely left its mark on Cuban public opinion. Just as there are Russians who even today remember Stalin fondly, there are probably Cubans who feel the same way about Fidel.

Be that as it may, it is important to be very cautious in interpreting pro-regime statements by Cubans and others who live under repressive governments. Some may genuinely love Big Brother. But others are only saying they do because they know Big Brother is watching.

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Counting Votes to Strike Down Legislation -- The Surprisingly Flat Graph: In a recent article, Professor Lori Ringhand counted the number of votes that each Justice of the Rehnquist Court cast from 1994 to 2005 to strike down state or federal legislation. Ringhand presented the federal and state votes separately, without combining them, but a pretty remarkable thing happens when you combine the two sets of figures (Tables 1 and 6): It turns out that there is a remarkably degree of uniformity in the total number of votes to strike down legislation.

  If I'm reading Ringhand's figures correctly, 8 of the 9 Justices voted to strike down legislation between 57 and 67 times over that period. Chief Justice Rehnquist is the only outlier, with only 46 votes to strike down legislation. I put the numbers up on a chart here:

  I should add that these sorts of numbers may incorporate a significant degree of subjectivity. For example, the line between a vote to strike down legislation and a vote to invalidate executive action more generally is hard to draw.

  Still, I found the combined chart pretty fascinating. We tend to hear primarily about the Justices' votes to strike down federal legislation. It's relatively common for commentators to say that the conservatives vote to strike down federal legislation more often than the liberal Justices do. However, the combined chart suggests a remarkable degree of uniformity in the rate at which the Rehnquist Court Justices voted to strike down legislation if you combine both federal and state cases. Ginsburg, Thomas, Souter, Scalia — they all vote to strike down legislation at almost exactly the same rates. They differ on which statutes should be struck down, but at least based on the docket of the Rehnquist Court did not differ on how often statutes should be invalidated.
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Sunday, February 24, 2008

More on Law and Politics in Battlestar Galactica:

Part II of Concurring Opinions' interview with Battlestar Galactica co-creators Ronald D. Moore and David Eick is now available here. This part focuses on the political and economic system of the Twelve Colonies, both before and after the Cylon attack. More fun for sci-fi fans with an interest in legal and political issues.

Related Posts (on one page):

  1. Cylon Politics and Religion:
  2. More on Law and Politics in Battlestar Galactica:
  3. Law and Politics in Battlestar Galactica:
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Another Internal Justice Investigation:

The Washington Post reports the Justice Department's Office of Professional Responsibility is investigating the "circumstances surrounding" the drafting of the so-called "torture memos" within the Office of Legal Counsel. According to one DoJ attorney, the investigation will consider "whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."

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A Texas Wind Boom:

Wind power is on the rise in the United States, even if offshore projects continue to have a difficult time (see, e.g. Cape Wind). The New York Times reports:

Wind turbines were once a marginal form of electrical generation. But amid rising concern about greenhouse gases from coal-burning power plants, wind power is booming. Installed wind capacity in the United States grew 45 percent last year, albeit from a small base, and a comparable increase is expected this year.

At growth rates like that, experts said, wind power could eventually make an important contribution to the nation’s electrical supply. It already supplies about 1 percent of American electricity, powering the equivalent of 4.5 million homes. Environmental advocates contend it could eventually hit 20 percent, as has already happened in Denmark. Energy consultants say that 5 to 7 percent is a more realistic goal in this country.

The United States recently overtook Spain as the world’s second-largest wind power market, after Germany, with $9 billion invested last year. A recent study by Emerging Energy Research, a consulting firm in Cambridge, Mass., projected $65 billion in investment from 2007 to 2015.

Despite the attraction of wind as a nearly pollution-free power source, it does have limitations. Though the gap is closing, electricity from wind remains costlier than that generated from fossil fuels. Moreover, wind power is intermittent and unpredictable, and the hottest days, when electricity is needed most, are usually not windy.

The turbines are getting bigger and their blades can kill birds and bats. Aesthetic and wildlife issues have led to opposition emerging around the country, particularly in coastal areas like Cape Cod. Some opposition in Texas has cropped up as well, including lawsuits to halt wind farms that were thought to be eyesores or harmful to wetlands.

But the opposition has been limited, and has done little to slow the rapid growth of wind power in Texas. Some Texans see the sleek new turbines as a welcome change in the landscape.

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Was There a Global Cooling Consensus?

Most climate scientists believe that human activity is contributing to a gradual warming of the atmosphere. But these same scientists used to believe that human activity was producing a "global cooling," right? Not quite. In the 1970s, several popular publications ran high profile stories about the threat of "global cooling," but such concerns were not particularly prominent in the scientific literature. According to a new report, relatively few peer-reviewed publications supported cooling fears.

The '70s was an unusually cold decade. Newsweek, Time, The New York Times and National Geographic published articles at the time speculating on the causes of the unusual cold and about the possibility of a new ice age.

But Thomas Peterson of the National Climatic Data Center surveyed dozens of peer-reviewed scientific articles from 1965 to 1979 and found that only seven supported global cooling, while 44 predicted warming. Peterson says 20 others were neutral in their assessments of climate trends.

The study reports, "There was no scientific consensus in the 1970s that the Earth was headed into an imminent ice age."

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Sunday Song Lyric: The songwriting team of Alan Menken (music) and Stephen Schwartz (lyrics) received Oscar nominations this year for three of their songs from Disney's Enchanted: "Happy Working Song," "So Close," and "That's How You Know." Their compositions account for a majority of the songs nominated for "Original Song." Of the three, I think the first best captures the film's subtle parody of Disney animated film conventions. Here's a taste:
Come my little friends
As we all sing a happy little working song
Merry little voices clear and strong
Come and roll your sleeves up
So that we can pitch in
Cleaning crud up in the kitchen
As we sing along

And you’ll trill a cheery tune in the tub
As we scrub a stubborn mildew stain
Lug a hairball from the shower drain
To the gay refrain
Of a happy working song

We’ll keep singing without fail
Otherwise we’d spoil it
Hosing down the garbage pail
And scrubbing up the toilet.
For those who haven't seen the movie, picture a modern-day Disney princess cleaning an apartment with the help of city critters (pigeons, rats, etc.) instead of cute and furry forest denizens. There's a video here.

UPDATE: Despite three nominations, Enchanted failed to win the Oscar for best song. The winner? The song "Falling Slowly," from the film Once.

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Ralph Nader Is Running for President: News here.
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