Saturday, March 15, 2008

Yglesias on Rev. Wright:

Matthew Yglesias:

Obama's going to have a hard time explaining that I take to be the truth, namely that his relationship with Trinity has been a bit cynical from the beginning. After all, before Obama was a half-black guy running in a mostly white country he was a half-white guy running in a mostly black neighborhood. At that time, associating with a very large, influential, local church with black nationalist overtones was a clear political asset (it's also clear in his book that it made him, personally, feel "blacker" to belong to a slightly kitschy black church). Since emerging onto a larger stage, it's been the reverse and Obama's consistently sought to distance himself from Wright, disinviting him from his campaign's launch, analogizing him to a crazy uncle who you love but don't listen to, etc. The closest analogy would probably be to Hillary Clinton's inconsistent accounting of where she's from (bragging about midwestern roots when trying to win in Iowa, promptly forgetting those roots when explaining away a loss in Illinois, developing a sporadic affection for New York sports teams) — banal, mildly cynical shifts of association as context changes.

This is why I don't, as an American citizen, worry that President Obama would be objectionable. But Americans take their religion seriously and aren't going to want to hear this story. So Obama's going to have to do some awkward further distancing.

Yglesias may well be correct about Obama, but when you're left with the choice of either acknowledging that you had sincere close, personal, and political ties with a minister whose views most Americans find beyond the pale, or defending yourself by using the "hey, I'm just a cynical politician who uses religion to get votes just like anything else, and I don't believe in it any more than I really believe that NAFTA is bad" excuse, I think you may be in for some trouble.

UPDATE: An anecdotal report from my father from discussions with congregants after Friday night's service at a Reform synagogue in the Poconos in Pennsylvania: the congregants have turned against Obama because of Wright, and think McCain is a warmonger. Strong support for Clinton.

A Cloud Over the Enron Case?

Larry Ribstein notes the specter of prosecutorial misconduct and wonders when the press will pay attention. This probably bears watching.

Summary of Heller Legal Positions:

For those who have not followed all of the detailed blow-by-blow of the Heller case, Nelson Lund has a useful summary of the various legal positions here.

Intended and Unintended Effects of Three Strikes Laws:

A new paper from NBER on the incentives for criminals created by California's "Three Strikes" law:

"I'd Rather Be Hanged for a Sheep than a Lamb: The Unintended Consequences of 'Three-Strikes' Laws"

NBER Working Paper No. W13784

RADHA IYENGAR, Harvard University - Center for Government and International Studies, National Bureau of Economic Research (NBER)

Strong sentences are common "tough on crime" tool used to reduce the incentives for individuals to participate in criminal activity. However, the design of such policies often ignores other margins along which individuals interested in participating in crime may adjust. I use California's Three Strikes law to identify several effects of a large increase in the penalty for a broad set of crimes. Using criminal records data, I estimate that Three Strikes reduced participation in criminal activity by 20 percent for second-strike eligible offenders and a 28 percent decline for third-strike eligible offenders. However, I find two unintended consequences of the law. First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points. Second, because California's law was more harsh than the laws of other nearby states, Three Strikes had a beggar-thy-neighbor effect increasing the migration of criminals with second and third-strike eligibility to commit crimes in neighboring states. The high cost of incarceration combined with the high cost of violent crime relative to non-violent crime implies that Three Strikes may not be a cost-effective means of reducing crime.

American Constitution Society panel on DC v. Heller

Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel's office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available here.


Friday, March 14, 2008

Search Engine Queries That Led to This Blog,

from our referrer logs:

14 Mar, Fri, 19:41:45 Google: show multiple sex positions, partners, ways
14 Mar, Fri, 19:42:59 Google: venus + humans + conspiracy
14 Mar, Fri, 19:43:09 Google: what's that thing on the doors of jews apartments
It's a mezuzah.

One More Post on Obama at Harvard:

N.Y Times (This is old news, but it was new to me):


In the satirical issue of the Harvard Law Review, the editors wrote in Obama's voice "I was born in Oslo, Norway, the son of a Volvo factory worker and part-time ice fisherman," a mock self-tribute begins. "My mother was a backup singer for Abba. They were good folks." In Chicago, "I discovered I was black, and I have remained so ever since."

Obama demonstrates his political skills, and wins the rodent vote while showing tolerance for even the nuttiest arguments:

"Another of Mr. Obama's techniques relied on his seemingly limitless appetite for hearing the opinions of others, no matter how redundant or extreme. That could lead to endless debates — a mouse infestation at the review office provoked a long exchange about rodent rights — as well as some uncertainty about what Mr. Obama himself thought about the issue at hand."

And hints of youthful radicalism: Derrick Bell, then a professor at Harvard, demanded that Harvard immediately offer a tenured position to Regina Austin, a black visiting professor, solely on the grounds that Harvard didn't have any black women on the faculty, and despite a firm rule that visitors would not be voted on while visiting. Bell, of course, is prominent critical race theorist, most famous for his rather ridiculous assertion that the lot of black Americans hasn't improved since Jim Crow days, and for his "convergence theory" that white Americans only have, will, and do support civil rights when it serves their self-interest, narrowly defined. He also, based on a speech I saw him deliver, is a strong proponent of race-consciousness (not just with regard to affirmative action, but that white people should walk around thinking of themselvs as white people, to better recognize their role as oppressors)--or at least was at the relevant time period. Obama's verdict? "At a rally for faculty diversity, ... he compared Professor Bell to Rosa Parks."

Related Posts (on one page):

  1. One More Post on Obama at Harvard:
  2. Barack Obama and the Presidency of the Harvard Law Review:
Trinity Church:

With Barack Obama's Trinity Church and its recenlty retired minister Rev. Jeremiah Wright very much in the news lately, I came across an interesting, and generally very sympathetic, article on the church published in the Christian Century last May. Of particular interest:

TRINITY'S CRITICS SPEAK as though it is a political organization constantly advocating for social change, like Operation PUSH or the National Action Network. But it is neither more nor less than a church. "Trinity's activism is a write-your-elected-official activism, not one that mobilizes thousands to picket," Hopkins said. The only signs of politics that I saw in Trinity's packed worship bulletin the day I visited were a list of polling places in advance of an upcoming citywide election and a reminder to "boycott Wal-Mart." Not exactly the stuff of revolution.

There is no denying, however, that a strand of radical black political theology influences Trinity. James Cone, the pioneer of black liberation theology, is a much-admired figure at Trinity. Cone told me that when he's asked where his theology is institutionally embodied, he always mentions Trinity. Cone's groundbreaking 1969 book Black Theology and Black Power announced: "The time has come for white America to be silent and listen to black people.... All white men are responsible for white oppression.... Theologically, Malcolm X was not far wrong when he called the white man 'the devil.' ... Any advice from whites to blacks on how to deal with white oppression is automatically under suspicion as a clever device to further enslavement." Contending that the structures of a still-racist society need to be dismantled, Cone is impatient with claims that the race situation in America has improved. In a 2004 essay he wrote, "Black suffering is getting worse, not better.... White supremacy is so clever and evasive that we can hardly name it. It claims not to exist, even though black people are dying daily from its poison" (in Living Stones in the Household of God).

Wright agrees. When I asked him whether white Americans are right to maintain that the racial situation has improved since the days when Africentric Christianity was born, Wright pointed to the racist remarks by radio host Don Imus: "And you say things have improved?"

Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:

I blogged about this case in September 2006, when the district court rejected the official's claim. The Tenth Circuit just affirmed the district court decision, though mostly on procedural grounds. Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Elected Official's Suit Over Pledge of Allegiance, and Over His Having Been Recalled Because He Wouldn't Say It:
  2. Voters Still Have a Right to Choose Officials for Whatever Reason They Want:
Supreme Court Declares Right to Prostitution in Spitzer v. United States: Or so Michael Stokes Paulsen imagines, in a Supreme Court opinion dated 2010. It's not just the same without the Scalia dissent, though. ("Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called hooker agenda . . . ")
Barack Obama and the Presidency of the Harvard Law Review:

Journal of Blacks in Higher Education, Autumn 2004 Kenneth Mack:

Barack had already made an impression on both the second- and third-year student editors. If I remember properly, he had already participated in a committee that would plan the annual issue devoted to some new development in law, and was also holding forth in the forum where impressions were formed quickly among the staff — the editors' lounge....Like all of us, he was ambitious, but he never seemed that way.

The African-American editors had been strategizing to elect one of our own to the presidency for several years, and it was not an easy task.... four black editors threw their hats in the ring for the election to the presidency in the winter of 1990. Seventeen editors eventually decided to run for the position.

There were many elements involved in Barack's eventual victory, but the one moment that stands out to me was a vote, taken among the editors a few weeks before the election, that divided liberals and progressives from conservatives among the editorial staff. The law review, like America today, was sometimes bitterly divided along political lines, although there the liberals and progressives were in the clear majority. We argued about everything from affirmative action to the politics of legal scholarship. The conservatives lost this particular vote and many of us, myself included, were inclined to talk no further with them about it. Yet Barack followed up the vote by publicly offering to discuss the issue further and to find common ground with the conservatives, while seeming to empathize with their views. Not everyone on the winning side agreed with that tactic, but it paid dividends.

I remember vividly a moment during the presidential election when a conservative editor whom I had never known to support a black editor or a black author rose to pledge his firm support behind Barack, who everyone knew was a liberal-progressive. Barack, of course, won the election handily with an incredibly broad range of supporters. It was a moment of triumph that crossed racial and political lines, as well as about every demographic line among the editors.

Jim Chen:

I remember Barack Obama as a very strong editor-in-chief of the Harvard Law Review.... He motivated a large group of editors, who were talented, headstrong, and often contentious, to produce what we sincerely believed to be the United States' best scholarly journal in law. His greatest skill lay in defusing conflicts and in encouraging colleagues of his to cooperate with one another, or at least to compromise... Was Barack considered an `affirmative action baby' by white students or faculty members? It never occurred to me to think of Barack as anything besides the president of the Review, and (as I have said) a very strong one at that. Even back in those days he plainly aspired to a high-profile political career, and the rest of us respected, even admired, him for his ambitions.

Journal of Blacks in Higher Education, Jan. 31, 2001 Barack Obama:

I had established a presence in the classroom and in other activities during my first year of law school serving as an editor on the Harvard Civil Rights-Civil Liberties Review, assisting several professors on their scholarly work, and campaigning actively on issues of diversity in faculty hiring. As a result, I think my peers and professors knew that I took my work at the law school seriously and were less likely to question my qualifications for a spot on the Review. Moreover, by the time I was elected to the presidency of the Review, the peers who voted for me had worked with me in close quarters for over a year and were pretty familiar with my accomplishments... I have no way of knowing whether I was a beneficiary of affirmative action either in my admission to Harvard or my initial election to the Review. If I was, then I certainly am not ashamed of the fact, for I would argue that affirmative action is important precisely because those who benefit typically rise to the challenge when given an opportunity. Persons outside Harvard may have perceived my election to the presidency of the Review as a consequence of affirmative action, since they did not know me personally. At least one white friend of mine mentioned that a federal appellate court judge asked him during his clerkship whether I had been elected on the merits. And the issue did come up among those who were making the hiring decisions at the [University of Chicago] law school — something that might not have even been raised with respect to a white former president of the Review.

Related Posts (on one page):

  1. One More Post on Obama at Harvard:
  2. Barack Obama and the Presidency of the Harvard Law Review:
Beautiful Eulogy:

David Horowitz eulogizes his daughter Sarah here. Thanks to Manny Klausner for the link.

Does Article V Make it too Hard to Amend the Constitution?

Over at Prawfsblawg, University of Michigan [correction: NYU] lawprof Rick Hills has an excellent post discussing the shortcomings of Article V of the Constitution, which sets out the constitutional amendment process. As Rick points out, Article V's requirement that a constitutional amendment has to get the support of 2/3 of both houses of Congress, plus 3/4 of state legislatures makes it too difficult to amend the Constitution. Since every state but Nebraska has a bicameral legislature, that essentially means that an amendment needs to be ratified by 76 state legislative bodies (or 75 if Nebraska supports it), as well as broad supermajorities in Congress.

Rick and I both agree that there is much to be said for requiring a supermajority to amend the Constitution. However, Article V makes it almost impossible to enact any really significant amendment. Since the enactment of the Bill of Rights (which was part of the political deal by which the Constitution was ratified in the first place), there have been only a few major amendments. And the most important of these - the three post-Civil War amendments - were ratified only because the federal government essentially coerced the southern states into approving them by mandating that they would not be allowed to regain their House and Senate seats if they refused to ratify. The Constitution is, by and large, an excellent document. But it is not so infallible that major change should be nearly impossible.

As Rick suggests, the difficulty of promoting constitutional change through Article V has channeled demands for change into other, less desirable, avenues. One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to "change" the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process. Although it's difficult to prove, I suspect that constitutional change surreptitiously achieved through creative judicial interpretation is likely to be of lower average quality than change enacted through a supermajority amendment process that is somewhat easier to get through than Article V. In this 2003 article, I discussed some of the negative aspects of the massive constitutional changes imposed outside the amendment process during the New Deal period.

Readers who, like me, are sympathetic to textualism and originalism should also be aware that Article V is one of the reasons why these methodologies are not more widely accepted by judges than they are. Some judges inevitably fear that if they don't "adjust" the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process. On balance, I think that textualism and originalism are usually (though not always) superior to the available alternatives even with Article V. But that argument would be much easier to make if we had a less difficult amendment process.

What should Article V be changed to? It's difficult to formulate a definitive answer, especially in a blog post. But I would tentatively suggest that the requirement of ratification by 3/4 of the states be reduced to 2/3 and that congressional ratification require the support of 60% of each house of Congress rather than 2/3. These revised rules would still require an amendment to have broad bipartisan support at both the state and federal level. But they would eliminate the current logjam under which changing the Constitution through the amendment process is almost impossible.

UPDATE: Various commenters ask what amendments would I like to see enacted that haven't been because of Article V? There are actually a good many. Among those that had a good chance of passing under a less restrictive but still supermajoritarian process, I would note the balanced budget amendment and the Equal Rights Amendment (though I support the latter for reasons different from those emphasized by most of its other supporters). But far more important than the fate of particular amendment proposals is the fact that the near-impossibility of enacting change through Article V means that pressure for change is often channeled into other, less-desirable directions such as judicial manipulation of the Constitution. The average quality of constitutional change is likely to be higher if it goes through a supermajoritarian amendment process less restrictive than Article V than if it gets enacted through the back door.

CraigsList Immune from Liability for User-Posted Housing Ads

That Mention Illegally Discriminatory Preferences: So the Seventh Circuit just held; thanks to How Appealing for the pointer. The Circuit did not take as broad a view of 47 U.S.C. § 230 service provider immunity as other courts have done, and suggested that service providers could still be liable under laws that allow various forms of contributory liability. But it held that § 230 immunity does defeat a Fair Housing Act claim, because the FHA applies only to publishers or speakers, and § 230 specifically precludes ISPs from being treated as publishers or speakers of material posted by others.

More on the U.Va.-Wise Expulsion:

When I blogged on this incident -- in which the expulsion seemed to be triggered by a creative writing paper, coupled with a violation of university rules (but not state law) related to keeping licensed guns in a parked car on campus -- I wrote, "Troubling, if this account is reasonably complete. It's hard to tell more without learning about the context, including whether the student had some misconduct in his background, or otherwise showed himself to be a serious threat. But this does seem to merit some more looking into, especially since we're not just talking about the university's investigating a student (which I think officials must have a lot of flexibility to do), or even temporarily suspending him, but expelling him altogether."

Well, the account turns out not to have been reasonably complete, and making it more complete makes me much less troubled. Becky Dale points to this article that reports, "Not only was there the previous high school essay, but Barber has a recent conviction for being drunk in public and also was charged with assault and trying to break into another student’s room."

The assault and break-in charges were dismissed, but it's certainly possible that the university had enough evidence about them to consider them in its decision. (University expulsion decisions, of course, aren't governed by a reasonable-doubt standard, or by the local prosecutor's judgments about what charges should be pressed criminally.) Among other things, Barber acknowledges that he "[broke] into a dorm room that he mistook for his own while admittedly in a drunken stupor," and "did community service for the misdemeanor drunk-in-public charge and was ordered to keep out of trouble for the next year while on campus."

It's still possible that the university acted incorrectly here (again, I stress that we don't have all the facts), for instance if it relied on the creative writing paper in its decision, and the creative writing paper did not actually reveal any dangerous propensities on the author's part. But the new evidence seems to make the university's decision much more plausible, especially if state law does not prohibit the university from imposing extra weapons rules beyond those created by state law (quite likely, given that the government as property owner generally has considerable authority to set up noncriminal constraints on what and who is allowed on its property). The burden would now have to be on Barber, I think, to show that there remains something to be troubled about.

Related Posts (on one page):

  1. More on the U.Va.-Wise Expulsion:
  2. University Student Expelled Over Creative Writing Paper?
If a Body Falls in a Federal Forest . . .

Do federal courts have general jurisdiction over murder and other crimes that occur within National Forests? Not being much of a crimlaw guy, I would have assumed the answer was "yes." In United States v. Gabrion, a divided panel of the U.S. Court of Appeals for the Sixth Circuit confirms my intuition, holding that a murder on federal property in a national forest did occur within federal territorial jurisdiction, but also shows this is a more complicated question than I would have assumed. The three judge panel produced three opinions. Judge Batchelder delivered the opinion of the court, Judge Moore concurred in the judgment, and Judge Merritt dissented.

UPDATE: How Appealing has more here.

Bush Sought Less Stringent Ozone Standard:

The Washington Post reports this morning that President Bush overruled EPA plans to have a modestly tighter ozone standard. In particular, the story reports that Bush told the EPA not to set a secondary "public welfare" standard for ozone that was more stringent than the primary "public health" standard.

documents, which were released by the EPA late Wednesday night, provided insight into how White House officials helped shape the new air-quality rules that, by law, are supposed to be decided by the EPA administrator.

The White House Office of Management and Budget (OMB) questioned in a March 6 memo to the EPA why the second standard was needed. EPA officials answered in a letter that high ozone concentrations can cause "adverse effects on agricultural crops, trees in managed and unmanaged forests, and vegetation species growing in natural settings."

The preamble to the new regulations alluded to this tug of war, stating there was a "robust discussion within the Administration of these same strengths and weaknesses" in setting the secondary standard. The preamble went on to say that the decision to make the two ozone limits identical "reflects the view of the Administration as to the most appropriate secondary standard."

The effort to rewrite the language — on the day the agency faced a statutory deadline — forced EPA Administrator Stephen L. Johnson to postpone at the last moment a scheduled news conference to announce the new rules. It finally took place at 6 p.m., five hours later than planned.

Particularly interesting is the Post's report that Solicitor General Paul Clement expressed concerns about the revision.

The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone.

Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

The story quotes an environmentalist attorney accusing the White House of "unprecedented and an unlawful act of political interference." This strikes me as quite hyperbolic. Insofar as the relevant Clean Air Act language leaves the EPA Administrator with any policy discretion in the setting of standards — and I believe it does — there is nothing illegal or improper with the President directing the EPA Administrator to exercise that discretion in accordance with administration policy. If the revised standards fail to hold up in court — and I have no opinion on this matter as I have not yet read the relevant documents — it will not be due to any supposedly "unlawful" interference by the President, but because the EPA failed to provide an adequate justification for the new standard.

UPDATE: John Walke of NRDC, the "environmentalist attorney" quoted above, responds in the comments here. He makes a strong case that the EPA set forth a weak justification for the new ozone NAAQS, largely due to last minute instructions from the White House to modify their decision. Assuming Walke's characterization is accurate, the NAAQS standard may well fall in court.

To clarify my position, there is nothing "unprecedented" or "unlawful" about a White House directing an EPA Administrator to exercise his discretion in accordance with Administration policy. Whether it has happened in the context of setting a NAAQS standard or not, it has happened with many EPA decisions over the years. Harping on alleged "interference" makes for a good soundbite, but I think it detracts from the real issue: Whether or not the EPA articulated an adequate justification for its decision under the Clean Air Act. The EPA's rule in this case may well be "unlawful," as Walke argues. If so, it is because of the substance of EPA's justification and its failure to articulate an adequate justification for the rule. Even if this was due to the last-minute nature of the President's interference (a point which Walke makes quite strongly), the fact of Presidential "interference" is not, in itself, either unprecedented or unlawful.

Related Posts (on one page):

  1. Bush Sought Less Stringent Ozone Standard:
  2. EPA Tightens Smog Standard:

Thursday, March 13, 2008

Jews, Blacks, and Political Power:

Ilya's post below on Spitzer reminds me that being of Jewish background myself (no, really!), I have found it very interesting that Obama has been receiving such overwhelming support from African Americans in this election. It's one thing to support Jesse Jackson or even Al Sharpton for symbolic reasons, but Obama actually has a good chance of becoming president.

Among Jews of past generations, and to a lesser extent even today, the last thing in the world many would want is a Jewish president. While such an achievement would undoubtedly be a matter of pride, there would also be grave concern that people would "blame the Jews" if things went badly. Moreover, there would be concern that if a Jewish president of the U.S. acted friendly toward Israel, he'd be accused of acting based on his Jewish background, while a Gentile president could be as pro-Israel as his ideology allows.

By contrast, African Americans don't seem particularly concerned about a potential racist backlash if Obama becomes president.

Why the difference? I think it has its roots in the different historical experiences of the two groups. Jews, being a minority people in exile, often were only able to protect themselves by establishing relationships with those in power. When the people turned against those in power, they turned against their Jewish advisors and allies as well, and by extension against the Jews. And when Jews were emancipated and became involved in political movements, ranging from liberalism to Communism, their ideological adversaries rarely hesitated to stir up opposition by focusing on Jewish leaders of the movement, resulting, for example, in the murder of tens of thousands of Jews by the White Russians during the Russian revolutionary upheaval. Even today in the U.S., anti-Jewish prejudice manifests itself in complaints about disproportionate Jewish political power, as witnessed by the oft-heard claim that Jewish neoconservatives manipulated the Bush Administration into war with Iraq.

By contrast, African Americans have suffered in large part because of their lack of political power. With 12% or so of the population and deep historic roots in American life, African Americans are less worried about being seen as outside interlopers seizing power from "real Americans", and more worried about the very real consequences they have suffered from being excluded from political power.

That, in any event, is my preliminary take.

With Artist Friends Like This, Who Needs Enemies?

An item from the Obama Store:

American Digest has more details (thanks to InstaPundit for the pointer). Call me a philistine, but this does not look like particularly effective pro-Obama art.

Eliot Spitzer and Anti-Semitism - The Dog that Didn't Bark:

Until his recent downfall, Eliot Spitzer was one of America's most prominent Jewish politicians. Yet his Jewishness has been almost completely absent from the public debate occasioned by his disgrace and resignation. Pundits haven't been pontificating about the implications of Spitzer's downfall for the future of Jewish participation in politics. No one of any consequence has claimed that his misdeeds reflect badly on Jews as a group. And Spitzer himself hasn't tried to "play the anti-Semitism card" by claiming that the feds targeted him because he is Jewish. To paraphrase Sherlock Holmes, the absence of anti-Semitism from the discussion of Spitzer is a crucial dog that didn't bark.

The lack of focus on Spitzer's Jewishness is all to the good. It shows that both the political elite and the general public broadly accept the role of Jews in public life and that anti-Semitism has largely been marginalized in mainstream political discourse. That marginalization, in turn, helps ensure that Jews are unlikely to rally to a Jewish public figure accused of wrongdoing if he makes unsubstantiated claims of being a victim of anti-Semitism. That may be one of the reasons why Spitzer didn't try to use anti-Semitism as a defense. Obviously, anti-Semitism hasn't disappeared in America. But it has been reduced to relative insignificance.

Unfortunately, however, we haven't advanced quite as far with respect to some other minority groups. Had an equally prominent black or Hispanic politician landed in the same kind of fix as Spitzer, it is highly likely that his race would be a major part of the discussion. Pundits would grouse about the implications of the scandal for black leaders more generally. And the politician himself might well play the race card in order to defend himself. The reasons for this are understandable. We have not overcome racism and its legacy to the same degree as we have with anti-Semitism. As a result, public discourse focuses on race far more than on Jewish-gentile differences. And blacks are understandably more suspicious of efforts to prosecute the alleged misdeeds of black leaders than Jews are of similar efforts with respect to Jewish ones.

However, the Spitzer case does offer a measure of hope. If this scandal had occurred just a few decades ago, Spitzer's Jewishness would have been a much larger part of the discussion, and that discussion would have been vastly more poisonous. In time, we may be able to achieve the same sort of progress in race relations. As flawed as they are, race relations today are still much better than twenty or thirty years ago. In time, if we are lucky, a public figure's race might become just as insignificant as Spitzer's Jewishness is today.

Related Posts (on one page):

  1. Jews, Blacks, and Political Power:
  2. Eliot Spitzer and Anti-Semitism - The Dog that Didn't Bark:
  3. It's the Sex, Stupid:
No En Banc Rehearing as to First Amendment Right To Create Vote Swap Site:

The Ninth Circuit has refused to rehear en banc its earlier decision upholding a First Amendment right to create a vote swap site.

For more on why I think vote-swapping can't be easily equated with criminalizable vote-buying (an argument made by the dissent from denial of en banc), see here and here. A short excerpt:

A legislator promising to vote a particular way if another legislator votes a particular way: ordinary log-rolling. [Trading votes for votes in the legislature is thus seen as vastly different from trading votes for money.]

A legislator promising to vote a particular way if voters elect him: ordinary and constitutionally protected (Brown v. Hartlage) campaign promises.

Voters promising to vote for a legislator if the legislator promises to vote a particular way: the example [given here], which I think is quite proper.

Voters promising to vote a particular way if other voters promise to vote a particular way: that's, and it seems to me hard to see why it should be a crime when the others are permissible and even constitutionally protected. If legislator-legislator, legislator-voter, and voter-legislator deals are permitted, why not voter-voter deals?

Telling Children About Prostitution:

The Albany Times-Union discusses what parents should say if children hear about the Spitzer scandal and start asking questions. Here's one particular recommendation:

Judy Kuriansky, a professor of clinical psychology at Columbia University Teachers College, said parents should be ready if children ask what a prostitute is.

"If they ask," she said, "You say, 'Sadly there are some women who feel that when they have an intimate experience with someone they need to get paid for it. This is something that is not healthy, and I don't accept it or condone it.'"

Then, Kuriansky said, parents should steer the conversation toward the kind of healthy relationship children should aspire to. "Shift it to what is positive," she said.

For young children, she said — under the age of about 8 — it should be enough to say that Spitzer did something bad and had to quit his job.

As Prof. Julie Novkov mentioned (on a discussion list I'm on), "Yeesh. I hope it was taken out of context ...." What does "intimate experience" mean to a 9-year-old? [UPDATE: Plus, as several commenters have pointed out, why focus just on the women and not on the men?]

I appreciate the problem this poses, and can envision having to talk about this to my boys one day. But it seems to me that either the kid knows about sex, in which case the best option is to explain this bluntly to him (especially since he's likely to hear something about it elsewhere, so it's better that he get the straight dope — coupled with relevant moral commentary — from you); or he doesn't know about sex, in which case talking about being paid for "intimate experience[s]" isn't terribly helpful.

I'd love to hear what others think, though.

It's the Sex, Stupid:

Quite a few commentators on the Eliot Spitzer scandal are searching for some deep explanation for the frequent sex scandals involving powerful men. "Do you think men of power and success, men like Eliot Spitzer, get intoxicated with this kind of success?," asked Nightline's Terry Moran on Tuesday. "Are they reckless? Do they secretly want to get caught?" "Maybe it’s the thrill, the rush of trying to get away with something. Maybe it's just arrogance," speculated the former wife of the former New Jersey governor in the New York Times.

It only takes a little bit of knowledge of how natural selection works to understand no such complicated explanations are necessary. In the evolutionary environment, men's best reproductive strategy was to have sex with as many fertile women as possible. (The incentives for women were different because of their ability to produce only one offspring per year). There were no doubt men who weren't interested in sex, or who wanted to have sex only with one woman, but they had fewer offspring and therefore failed, ultimately, to pass along their genes. The result: most men have a desire to have sex with multiple women. Men also tend to prefer younger women, because in the evolutionary environment (as now) youth is correlated with fertility. Rich and/or powerful men are no different in this respect from others, although it is easier for them to attract women. Monica Lewinsky probably wouldn't have been as interested in a middle-aged and married Bill Clinton if he were not the President, and 22 year-old Ashley Dupre certainly would not have been interested in having sex with 48-year old Eliot Spitzer if he hadn't been willing and able to shell out $4300.

That evolution provides an explanation doesn't mean it provides an excuse for selfish or socially irresponsible behavior, for Spitzer or for anyone else. The good news is that evolution has also equipped us with the ability to appreciate the consequences of our actions and exercise control over our instinctive drives. We should expect our elected officials obey the law, set a good example, and avoid putting themselves at risk of blackmail, even if they'd rather be sneaking off to the Mayflower Hotel. Invoking evolution in no way absolves Spitzer of responsibility for his actions. But if we want to understand what motivated Spitzer -- and before him the likes of Clinton, David Vitter, Gary Hart, John Kennedy, and list goes on -- to do something so risky, stupid, and potentially self-destructive, we need to recognize that drives honed by millions of years of natural selection are powerful and more difficult to resist than more ordinary types of preferences or desires. It is a safe bet that Spitzer would never in a million years consider shoplifting from a department store, even if he saw something he wanted and found he had left his credit cards at home.

To understand Spitzer's behavior, we really don't need an explanation any more sophisticated and nuanced than the one offered by former Hollywood madam Heidi Fleiss on Nightline. She responded to Terry Moran's absurd string of questions about Spitzer's possible psychological motivations by saying, "he wants to get laid."

Congressman Kevorkian?

The AP reports that "Assisted-suicide advocate Jack Kevorkian plans to run for Congress, complicating a Michigan race that is expected to be among the most competitive in the nation."

Thanks to The Dilbert Blog for the pointer.

Careful with Those Studies:

Scott Horton in The New Republic suggests there are "unsettling issues" about "whether a selective attitude is taken in prosecution--that is, whether the Justice Department is treating Spitzer in a manner consistent with other (notably Republican) figures caught in a similarly compromised position."

I don't know enough about the subject to comment on the big picture question, but I did want to point out one item. Horton writes,

PIN has emerged as one of the most highly politicized branches of a highly politicized Justice Department. According to a study done by two university professors, under President Bush PIN has initiated 5.6 cases involving Democrats for every one case involving a Republican. This statistical data strongly suggest that PIN has a habit of aggressively pushing cases on the basis of partisan political criteria.

But Horton doesn't point out that for the most analogous class of officeholder -- "State-Wide and Federal Elected Officials" -- the study reports (emphasis added) that "there is not a significant difference between the number of federal investigations of State-wide and federal elected officials and what would be expected given the representation of Democratic and Republican office-holders in the population." The breakdown of investigations there was 36 Democrats and 30 Republicans, which is almost identical to what would be expected given the ratio of Democrats to Republicans in those offices (33 to 27, according to the study).

I haven't examined the rest of the study carefully, and can't speak to the significance of its findings about local officials, where there is a large Democrat/Republican disparity; there may well be some bias there, though it's hard to tell without further investigation. But it seems noteworthy that this statistical study's empirical findings as to the officeholder category that's most analogous to Spitzer's do not support the inference for which Horton is using the study.

Prostitution Legal in Rhode Island:

The Spitzer matter reminded me of this factoid, and a How Appealing item pointed me to a news story that explains it:

“A lot of people don’t realize that prostitution is legal in Rhode Island if you do it indoors,” State Police Inspector Stephen Bannon testified. In an accompanying letter, State Police Supt. Col. Brendan P. Doherty noted that under current law, “persons are free to solicit sex for money in newspapers and/or over the Internet as long as the conduct that is agreed upon takes place in private.”

The Rhode Island legislature is now considering "clos[ing] the loophole," but I'm not sure it's quite a "loophole": The relevant statutes prohibit operating a bordello, pimping, or loitering with the purpose of prostitution, but they simply don't prohibit prostitution itself.

Speeches Today and Tomorrow: Tomorrow at noon, I will be giving my talk on "Constitutional Cliches: Does Trite Make Right?," a luncheon sponsored by the Las Vegas Lawyer's Chapter of the Federalist Society. Further details are here. The event will be held at 11:45am-1:30pm at:
Lawry's the Prime Rib
4043 Howard Hughes Parkway
Las Vegas, Nevada 89169
(702) 893-2223
Today, I am attending a very interesting Symposium on Drugs: Addiction, Therapy, and Crime, at the University of Utah College of Law. The symposium is today and tomorrow and is open to the public. My speech on "Curing the Drug Law Addiction" is today at noon. The rest of the conference schedule is here. Here is Professor Erik Luna discussing the symposium:

Is McCain an "Instinctive Regulator"?

Virginia Postrel thinks so.

McCain is an instinctive regulator who considers business a base pursuit. It doesn't help that the senator's personal connections with commerce are largely limited to a highly protected local industry (distributing beer) and outright corruption (the Charles Keating scandal). And he's every bit as moralistic as Hillary Clinton, our would-be national nanny. His first response to something he doesn't like--particularly something commercial he doesn't like--is to ban it. The most extreme, and effective, case of this instinct was his holy war against ultimate fighting, a peculiar cause for a boxing fan and one McCain took up when he was still in his "conservative" stage.


Administration Split on Gun Rights?

Robert Novak has an interesting column this morning on divisions within the Bush Administration over the Second Amendment and D.C. v. Heller.

In preparation for oral arguments Tuesday on the extent of gun rights guaranteed by the Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President Bush.

The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court's affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency. . . .

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement.

But facing congressional Democratic pressure to keep his hands off the Justice Department, Bush did not act.

The column provocatively suggests that Clement may alter the DoJ's position slightly at oral argument next week. If so, that would be a very interesting development.

UPDATE: Marty Lederman is skeptical of the Novak account.

UPDATE: FWIW, I have received several e-mails from current and former administration officials who are skeptical with key aspects of Novak's account. While these individuals do not have firsthand knowledge of how these specific decisions were made, they find it highly implausible that SG Clement did not clear the contours of his brief with the White House Counsel's office.

Related Posts (on one page):

  1. Second Amendment Sniping:
  2. Administration Split on Gun Rights?
John Adams:

"Let us dare to read, think, speak, and write!" So reads the promo on the "John Adams" poster advertising the HBO mini-series starting on Sunday.
Give me a break! A better slogan for Adams would be:
"Let us dare to read, think, speak, and write -- though nothing critical of the Government!"
Adams was a really interesting guy, and a giant figure in the early days of the Republic, fully deserving of all the public attention he is getting. But my guess is that the HBO Series (like the David McCullough book on which it is based) is not going to come to grips with the central fact of Adams' legacy: that the Sedition Act, passed by the Federalist Congress and signed by President Adams, would have destroyed the United States before it had a chance to become the United States. Lest we forget, the Sedition Act, simply stated, made it a federal crime to “write, print, utter, or publish,” any “malicious writings against the government of the United States, or either House of Congress, or the President,” or anything that would “bring them into disrepute.” Violations were punishable by up to two years in prison. Look out, Jon Stewart! Dozens of U.S. newspaper editors and pamphleteers had been rounded up and tossed in jail under its terms.
It is simply impossible to imagine democratic government, or meaningful elections, where people are thrown in jail for criticizing the government, and it is therefore impossible to imagine the United States of the 19th and 20th centuries had the Sedition Act remained in place – which, thanks only to Jefferson’s election in 1800, it did not.

EPA Tightens Smog Standard:

The U.S. Environmental Protection Agency (EPA) approved a more stringent National Ambient Air Quality Standard (NAAQS) for ground-level ozone (aka "smog"). From the EPA announcement:

EPA today met its requirements of the Clean Air Act by signing the most stringent 8-hour standard ever for ozone, revising the standards for the first time in more than a decade. The agency based the changes on the most recent scientific evidence about the effects of ozone, the primary component of smog.

"America's air is cleaner today than it was a generation ago. By meeting the requirement of the Clean Air Act and strengthening the national standard for ozone, EPA is keeping our clean air progress moving forward," said EPA Administrator Stephen L. Johnson.

The new primary 8-hour standard is 0.075 parts per million (ppm) and the new secondary standard is set at a form and level identical to the primary standard. The previous primary and secondary standards were identical 8-hour standards, set at 0.08 ppm. Because ozone is measured out to three decimal places, the standard effectively became 0.084 ppm: areas with ozone levels as high as 0.084 ppm were considered as meeting the 0.08 ppm standard, because of rounding.

Although the standard is, as EPA noted, the most stringent ozone NAAQS ever adopted, it is not as stringent as that recommended by the EPA's Science Advisory Board. Also of note, EPA Administrator Stephen Johnson stated he wants Congress to give the EPA authority to consider costs when setting NAAQS under the Clean Air Act. The Washington Post reports:

The Environmental Protection Agency yesterday limited the allowable amount of pollution-forming ozone in the air to 75 parts per billion, a level significantly higher than what the agency's scientific advisers had urged for this key component of unhealthy air pollution.

Administrator Stephen L. Johnson also said he would push Congress to rewrite the nearly 37-year-old Clean Air Act to allow regulators to take into consideration the cost and feasibility of controlling pollution when making decisions about air quality, something that is currently prohibited by the law. In 2001, the Supreme Court ruled that the government needed to base the ozone standard strictly on protecting public health, with no regard to cost. . . .

Nearly a year ago, EPA's Clean Air Scientific Advisory Committee reiterated in writing that its members were "unanimous in recommending" that the agency set the standard no higher than 70 parts per billion (ppb) and to consider a limit as low as 60 ppb. EPA's Children's Health Protection Advisory Committee and public health advocates lobbied for the 60-ppb limit because children are more vulnerable to air pollution. . . .

Rogene Henderson, who chairs the agency's Clean Air Scientific Advisory Committee, said in an interview that she disagrees with Johnson's decision even as she welcomed a tighter standard.

"We can't kid ourselves that this is as health protective as we would like, but this is a step in the right direction," Henderson said. "I understand that with our dependence on fossil fuels, it's difficult to reduce ground-level ozone. But the fact that it's difficult doesn't mean it's not worth doing."

A slew of industries had recently urged White House officials to keep the current limit, effectively 84 ppb, to minimize the cost of installing pollution controls. The EPA estimated that it will cost polluting industries $7.6 billion to $8.8 billion a year to meet the 75-ppb standard, but that rule will yield $2 billion to $19 billion in health benefits. . . .

Under the Clean Air Act, the federal government is obligated to reexamine the science underpinning its smog standards every five years. The agency last revised the standards in 1997, and 85 counties have yet to meet those rules.

As both industry and environmentalist groups are unhappy with the new standard, litigation will surely follow.

Related Posts (on one page):

  1. Bush Sought Less Stringent Ozone Standard:
  2. EPA Tightens Smog Standard:
Spitzer Warrant Affidavit

Here's a (redacted) copy of the actual affidavit supporting various search and arrest warrants in the Spitzer case. It gives a better feel for the seriousness of the allegations than some of the general speculation I've seen elsewhere.


Wednesday, March 12, 2008

"Kristen" Identified: The New York Times has the story here.
Appropriate Attire When Governors Apologize For Sex Scandals: As Adam Kolber has discovered, there seems to be a uniform for this sort of thing.
"Spitzer Sues Prostitute Over Sex Addiction":

Breaking news.

University Student Expelled Over Creative Writing Paper?

[UPDATE: See here for more information that makes me much less troubled about the University's action.] Troubling, if this account is reasonably complete. It's hard to tell more without learning about the context, including whether the student had some misconduct in his background, or otherwise showed himself to be a serious threat. But this does seem to merit some more looking into, especially since we're not just talking about the university's investigating a student (which I think officials must have a lot of flexibility to do), or even temporarily suspending him, but expelling him altogether.

Thanks to Duc Vu for the pointer.

UPDATE: I should note that if the student was expelled because his possession of handguns in his car (with a concealed weapons permit) violated state law or some school policy (presumably because the car was parked on campus), that would make the matter less troublesome — I don't think such a ban would be wise, but a school might nonetheless legitimately enforce it. Nonetheless, expulsion would still strike me an excessive remedy; nor would protecting the university from the possibility that he would turn into a Virginia-Tech-style mass killer justify this: If he really does plan to commit mass murder, he could do that as an expelled student pretty much as easily as an enrolled student (since the school doubtless doesn't have guards at each possible entrance to keep him off campus).

FURTHER UPDATE: (1) School authorities report that "Though the guns found in the car might have violated school rules, it did not violate state law."

(2) "The fictional essay, as well as the guns found in the car, convinced Scott County Commonwealth’s Attorney Marcus McClung to have a judge revoke Barber’s concealed-weapons permit, which allows him to carry hidden guns through Virginia.... McClung ... successfully argued to a judge last week that Barber should not legally have the permit since he was 'involuntarily committed' [because of the school's investigation] ...." Query whether this shows that the school's investigation did uncover some evidence of mental illness, or whether it simply shows that the permit was automatically revoked simply because of the school-triggered commitment.

(3) The creative writing class involved is taught by Christopher Scalia, who is apparently Justice Scalia's son.

Thanks to Dave Wegener for the pointer.

Related Posts (on one page):

  1. More on the U.Va.-Wise Expulsion:
  2. University Student Expelled Over Creative Writing Paper?
Very Funny:

Thanks to InstaPundit for the pointer.

Conservatism and gay marriage:

Video of the presentations at the symposium on conservatism and gay marriage — held at the South Texas College of Law in Houston on February 15 — is now available for viewing online here. The presenters were: Charles Murray, David Frum, Gerard Bradley, Jesse Choper, Jonathan Rauch, Robert Nagel, Teresa Stanton Collett, and me.

Dorf's Reply: Michael Dorf has posted a reply Can't We All Just Get Along? to my earlier defense of the compatibility of a correct version of originalism and a correct version of living constitutionalism. Because he eschews "academic esoterica" it is difficult to fully understand his position. As near as I can tell, his entire argument appears in this passage:
Either the domain of construction is large relative to interpretation, in which case originalism is a largely indeterminate theory, or the domain of construction is small relative to interpretation, in which case a jurisprudence of original understanding would look very different from the living constitutionalism that we have. And if that's so, then originalism remains susceptible to the criticism that it leads to morally odious results (e.g., the 14th Amendment doesn't forbid most forms of official sex discrimination) or results that would be enormously disruptive of our legal/political order (e.g., much of the federal administrative state is invalid).
I have two responses to this. First, however large or small is "the domain of construction" is to be decided after we decide what meaning is conveyed by the text. I believe (a) that a great many cases would be decided by this meaning, (b) choices within the remaining domain of construction would still be bounded by this meaning, and (c) a good deal of constitutional law would still be required to put the meaning of the Constitution into effect. For example, the doctrines of "content neutrality" and "time, place and manner" regulations are not in the Constitution itself, but are doctrines that may be justified as putting into effect the freedoms of speech, press, and assembly.

Second, Dorf's main point is his references to interpretations that would either be "morally odious" or "enormously disruptive of our legal/political order." Although these appear to be two different criteria, only the first really counts. In the the 1920's, for example, the rejection of separate-but-equal would have been REALLY disruptive of the political/legal order, but I am sure that Dorf would say this should have been done anyway to avoid morally odious results.

So in practice moral odiousness is really doing all the work. The problem is the existence of disagreement over moral odiousness. While a consensus about the moral odiousness of racial apartheid exists today, it did not exist in the 1920s when President Wilson segregated the federal government for the first time. And it did not even exist through the 50s and 60s. So if we follow Dorf's apparent methodology, courts should have upheld Plessy v. Ferguson until the late 1960s when a consensus about its moral odiousness had emerged.

UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf's) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf's position: "[C]ontrary to conventional wisdom," he wrote, "constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis."

This is a prescription for what Larry Solum has called the "downward spiral" of judicial nominations. If the Constitution has no meaning independently of a judge's own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

I think Dorf is being completely open and honest about his views about constitutional interpretation and, for that, I commend him. For him it is all about results. If the text and precedent reach the right results, follow the text and precedent. If the precedent reaches the right results and the text does not, follow the precedent and trump the text. But if the precedent reaches the wrong results, then come up with whatever "interpretation" of the text reaches the right result and discard the precedent.

This approach is everyone's first choice if they and those who agree with them are in power. But is is their last choice if those who disagree with them are in power. Everyone's second choice should be to follow the meaning of the Constitution and construe it in ways that do not contradict that meaning even where this may lead to some results of which you object AND expect your political opponents to do the same.

Ultimately, this is what a written constitution is for, provided that what the constitution actually says is good enough to follow. Sometimes I suspect that, in their hearts, "living constitutionalists" (in the bad sense) do not believe that what the U.S. Constitution says is good enough so they advocate methods of "interpretation" that enable them to avoid rather than follow what they believe is its morally odious meaning. In other words, these living constitutionalists substitute their preferred meaning for that of what they view as the morally odious Constitution.
Accidental Death Dangers for Young Children (Age 1 to 7):

A discussion with some parents led me to look into this, using the CDC's invaluable WISQARS application. I looked at accidental death dangers for young children, age 1 to 7, over the span 2001 to 2005; do not assume that this extrapolates well to older children, but run your own queries instead. Here are the results:

Cause of accidental deathRate per 100,000 children age 1 to 7
Car accident, child passenger in car1.3 to 2.2
Hit by car while walking1.3
Fire (not including house fire)1.2
House fire1.1
"Unintentional struck by or against"0.1

If you want to figure out the total numbers per year, multiply each number by 250 (since there are roughly 25 million children age 1 to 7 in the country). But the rate per 100,000 is of course more useful.

"Crusader of the Year":

Kimberley Strassel complains about the media's "act[ing] as an adjunct of Spitzer power, rather than a skeptic of it," and points out,

Time magazine bestowed upon Mr. Spitzer the title "Crusader of the Year" ....

What's inapt about that? I'd bet many Crusaders had lots of sex with prostitutes.

Thanks to Rand Simberg and InstaPundit for the pointer.

"Homosexuality [Even Bigger Threat] than Terrorists, or Islam":

A remarkable speech by Oklahoma State Representative Sally Kern (transcript, which seems accurate, included together with the audio). Oh, and here's another particularly amusing item:

It's a matter of fact, studies show that no society that has totally embraced homosexuality has lasted more than, you know, a few decades.

Uh-huh, I'd like to see those studies. Rep. Kern acknowledges the comments are hers, "and stands by her comments."

By the way, the first item I saw about this pointed to this YouTube video, which combines the audio of Rep. Kern's speech with still images critical of her position. Maybe it's just me, but the video struck me as quite ineffective. Letting Rep. Kern's words speak for themselves (with perhaps some emphasis of the most striking parts) seems to me to be much better.

Mirror of Justice

is at for now; the old address has been hijacked, though they're hoping to get it back soon.

Teaching Public Choice and the Law in Fall 2008 Semester:

Maxwell Stearns and I have nearly completed a draft of our new textbook "Public Choice Concepts and Applications in Law." We plan to have the book published and ready for classroom adoption for the Fall 2009 semester. In the meantime, we are are looking for professors interested in teaching all or some of the manuscript during the Fall 2008 semester. The book is suitable not only for law professors but for teachers of economics, political science, and public policy courses as well. The book is designed to be taught as either a follow-on to a traditional law and economics course or as a substitute for a traditional law and economics course.

Here's the announcement that we are sending out to interested parties:

Dear Colleagues:

We are currently writing a coursebook entitled Public Choice Concepts and Applications in Law, which is presently scheduled for publication in the fall 2009 with West Publishing. The book is designed for classroom instruction either as a complete course in public choice and the law or as a complement to, or substitute for, a traditional course in law and economics.

Because we have one full year prior to submission to the publisher (the manuscript is due in late March 2009), we are writing now to see if you might be interested in a pre-publication adoption of the present manuscript, either to teach in the fall 2008 or spring 2009 term (essentially either term in the upcoming academic year). We are both currently teaching the materials with great success at George Mason University School of Law and University of Maryland School of Law. Dean Saul Levmore has also just completed a course using these materials at University of Chicago School of Law. Each of us has thoroughly enjoyed teaching with these materials and is enthusiastic about the book and the value of using it in the classroom.

Given that this will be the only book of its type in the market, we are very interested finding professors willing to teach with these materials prior to publication and to provide us with valuable feedback on such matters as scope, organization, and presentation. Given your prior contributions to and interest in this field, we hope that you might be among those willing to undertake this project.

The book project presently has three parts. Part I of the book contains four chapters, which together introduce the basic concepts of public choice theory, including a general introduction to economic reasoning (with an appendix on elementary price theory); interest-group theory and rent-seeking; social choice theory; and elementary game theory. Each chapter includes clear presentations of the underlying concepts and a series of discussion points and case applications of covered concepts. Part II then applies these combined tools to analyze collective decision-making in four institutional settings: the legislature, the judiciary, the executive branch, and constitutions and constitutional design. Each chapter analyzes the incentives of decision-makers within each institutional setting and the implications of public choice and social choice for decision-making within each of these contexts. As in Part I, each chapter in this part provides several applications, including primary legal materials, that encourage students to apply the insights of public choice theory to concrete legal settings. Part III applies the frameworks developed in parts I and II to a broad range of specific substantive areas of law. These include such areas as the commerce clause (affirmative and dormant), standing, proposals for constitutional reform, environmental law and policy, methods of constitutional interpretation, bankruptcy and corporate law, and corruption and the rule of law. Part III is designed to allow professors to select from a menu of different topical areas and thus to teach to their particular areas of interest. While this aspect of the book is still in development, we are contemplating having Part III take the form of a web interface through which professors can download particular chapters to supplement the bound materials, which would then include parts I and II. At the current time we have completed drafts of Parts I and II of the book and we can send these parts to you for your review. We also have a list of the readings that will provide the basis for the chapters in Part III and a prototype chapter on the commerce clause.

We hope that you will consider requesting that your law school allow you to teach a course on “Public Choice and the Law” this coming academic year and that you will eventually make such a course a permanent part of your curriculum. Even if you choose not to teach this course at this time, we still encourage your review of the materials and any comments that you are able to provide. Because the book is broad in scope, we would also appreciate your willingness to review specific chapters of interest to you. Most importantly, we would also be greatly appreciative if you could suggest other professors who might be interested in such a potential pre-adoption, either at your own institution or elsewhere. You may also feel free to forward this letter to such colleagues. If you are interested in reviewing the chapters that we have at the current time, please contact Maxwell Stearns at mstearns [at] law [dot]umaryland [dot] edu or Todd Zywicki at tzywick2 [at] gmu [dot] edu.

Spitzer To Resign Monday:

Commenter Anton K points to an item on the WSJ Law Blog that says that Spitzer will resign effective Monday.

VC March Madness Pool:

The folks at Armchair GM have invited me to chair the first ever VC March Madness pool. We'll post the details on how to sign up once the brackets are announced. Go Mason!!

Climate Change and Water:

This week the National Research Council released a report on the potential consequences of sea-level rise on the United States. Today's NYT notes that this is only the latest study to highlight the threat of sea-level rise due to global warming. If global warming causes the seas to rise, low-lying developing countries are not the only places at risk.

While sea-level rise tends to get the most attention, the potential impact of climate change on fresh water supplies is likely to be a greater problem in the United States. Dealing with increased sea-level could be costly, particularly in places like southern Florida, but it would be manageable. The disruption of water resources, on the other hand, could have profound consequences in much of the nation. Water supplies are already stretched, prompting political conflict in the west and southeast, and existing water management institutions are proving incapable of addressing current water allocation problems. Even modest changes in the distribution of water supplies due to climate change could push water institutions past their breaking point.

I discuss the threat climate change poses to water resources, and a recommended institutional response, in this draft paper, forthcoming in a Hamline Law Review symposium on water resources. Here is the abstract:

Demographic changes and existing water use patterns have placed tremendous pressures upon water supplies, particularly in the West. Global climate change will exacerbate pressures on water resources. The gradual warming of the atmosphere is certain to change the distribution and availability of water supplies, with potentially severe consequences for freshwater supplies. While climate change will have a significant impact on water resources through changes in the timing and volume of precipitation, altered evaporation rates, and the like, the precise nature, magnitude, timing, and distribution of such climate-induced changes are unknown. This uncertainty complicates the task of water managers who are already faced with escalating demands. This article argues that climate change, and its projected effects on water use and supply, calls for a fundamental reexamination of water institutions. In particular, this article suggests that market-based institutions are well suited to address the additional pressures on water supplies due to climate change. Many aspects of water markets, including their flexibility, decentralized nature, and ability to create and harness economic incentives, make them particularly well suited to address the uncertain water forecast. A gradual shift toward water marketing and market pricing will improve the management of water supplies, ensure more efficient allocation of available water supplies and encourage cost-effective conservation measures.
The basic point of the article is that insofar as climate change will disrupt existing water supplies in somewhat uncertain and unpredictable ways, we need water institutions that are flexible and adaptive, and that encourage greater efficiency in water use and allocation. In this way, climate change strengthens the already-strong case for water markets. Market-driven transfer and pricing of water resources will not eliminate the consequences of warming-induced changes in water supplies, but they will make these changes more manageable.

Related Posts (on one page):

  1. The "Progressive" Case for Water Markets:
  2. Climate Change and Water:
AG Mukasey to Argue Before Supremes:

Attorney General Michael Mukasey will argue the case of United States v. Ahmed Ressam before the Supreme Court on March 25, the Washington Post reports. Ressam is the so-called "Millenium Bomber" who was arrested trying to cross the U.S.-Canadian border in 1999 with explosives and bomb-making materials in the trunk of his car. He was convicted on several counts, and sentenced to 22 years, but the U.S. Court ofa Appeals for the Ninth Circuit threw out his sentence. As I understand the case, at issue is whether Ressam can be sentenced for carrying explosives "in relation to" the felony of lying to a customs agent. Mukasey will argue that the Supreme Court should reinstate Ressam's sentence.

What About an Emperor?

Orin, you compared lawbreaking by Governors and Presidents, but what about an Emperor?

The Clinton/Spitzer Comparison: Over at the Right Coast, Mike Rappaport compares the misconduct and the public reaction to it of Bill Clinton in 1998 and Elliot Spitzer today:
I am sure that I have missed it, but I haven't seen anyone comparing the misdeeds of [Bill Clinton and Elliot Spitzer]. Clinton engaged in sex with an intern and then lied about it under oath. Spitzer engaged in sex with a prostitute, which is illegal. Which one is worse? Spitzer gets the boot, and Clinton is a hero to a lot of people. I know there are distinctions, but what are the morally and legally relevant ones? Here is one: Many people believe that prostitution should be legal; no one believes that perjury should be legal.
  I look at this differently. I don't know if Spitzer should "get the boot" for what he did, but I tend to think that these two cases are different on at least four grounds: first, the alleged crimes themselves; second, the differences between governors and Presidents; third, what the reports taught us about the two men; and fourth, the political context of the offenses and the investigation.

  First, consider the differences in the alleged crimes themselves. Based on what we know so far, Spitzer's crimes appear to include structuring, violations of the Mann Act, and perhaps other crimes. In contrast, I've never been sure that Clinton's false statements actually amounted to perjury; the crime of perjury requires materiality, and I'm not sure Clinton's false statements were material in context. See generally Alan Heinrich, Clinton's Little White Lies: The Materiality Requirement for Perjury in Civil Discovery, 32 Loyola L.A. L. Rev. 1303 (1999).

  Second, I would think that the difference between a Governor and a President matters. State Governors come and go, but replacing a Commander-in-Chief of the United States is a pretty big deal. Keep in mind that the Lewinsky scandal broke just about the same time that Al Qaeda declared war on the United States. With the Islamofascists on the attack, it was arguably an odd time to try to bring instability to the United States by impeaching the Commander-in-Chief. (Although I don't recall many Republicans being particularly concerned about this at the time.)

  Third, consider what the stories have taught us about the two men. The news about Spitzer came as a surprise; it was very much contrary to Spitzer's image. In contrast, everyone knew of Bill Clinton's infidelities before he was elected President. People didn't like it, and for a while in 1992 it looked the issue would sink his candidacy. But those who voted for Clinton factored his personal weaknesses into their assessment of him before casting their vote.

  Finally, the political context matters. Right now there is no sign that the case against Spitzer was politically motivated. There's speculation, but right now it looks like Spitzer caused his own fall. In contrast, the case against Clinton had strong elements of a partisan set-up. My recollection is that a number of Clinton's political enemies helped encourage the lawsuit against Clinton to get him under oath so he would lie or otherwise embarrass himself. And the folks who investigated him were unusually likely to be politically active members of the opposite party, many of whom personally despised Clinton and wanted him out.

  As I said, I don't know if Spitzer should get the boot; I don't live in New York, and I see that as a question for New Yorkers. But I think there are important differences between the two cases.

Tuesday, March 11, 2008

Can Constitutionalism Be Leftist?:

No, says Georgetown law prof Mike Seidman, in this interesting (and brief, as law professor writings go) paper.

The Post on OLC:

Today's Washington Post has an editorial about the DoJ's Office of Legal Counsel. Here's is how it begins:

Since its creation in the early 20th century, the Justice Department's Office of Legal Counsel has been considered the legal conscience of the executive branch, rendering judgments to presidents and executive agencies about what the law allows. The OLC responds to executive branch requests for clarifications on everything from how to determine annual leave for federal employees to whether treaty provisions are constitutional and how torture should be defined. Its opinions are binding on the executive and essentially carry the weight of law. Past OLC opinions continue to have force when a new administration begins, just as Supreme Court decisions enjoy the force of law long after the justices who made them have left the bench.

Unfortunately, during the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture. The OLC's decisions have eroded the legitimacy of the office and given legal cover to behavior that most Americans -- and most lawyers -- regard as improper.

King Lear and the Culture Wars: Over at his new blog, Less Than the Least, Bill Stuntz offers up an interesting post on the influence of law and culture on lawbreaking. From the introduction:
  The two sides in America’s long-running culture war disagree about much, but agree about something very important: both sides believe law shapes cultures, not the other way around. Sometimes, it seems to work that way. The civil rights legislation of the 1960s reinforced and accelerated a dramatic change in white culture. Race discrimination, once routine, came to be seen as the awful thing it is.
  But surprisingly often, it works the other way around.
Law Review Question:

I'm hoping VC readers can provide an answer to these questions: is it common for law reviews outside the top 20 to have policies banning professors at their own school from publishing in their law review (outside of symposia and the like) to avoid potential undue pressure by the faculty? At schools where this is allowed, do the law reviews take any extraordinary measures (e.g., blind review, peer review) to evade such pressure? Finally, at schools where this is allowed, do professors in fact put undue pressure on student editors to publish their work? Thanks.

Breaking the Law -- DeMorgan's Law:

Lots of court opinions are derided as illogical, but there's one that's illogical in a pretty technical way. I was just teaching it today, and thought I'd blog briefly about it.

The opinion is Justice Brennan's opinion, joined by Justices Marshall and Stevens, in Texas Monthly v. Bullock (1989). In that case, the Court struck down a Texas sales tax exemption for religious books and magazines; Justice Brennan's opinion concluded the law violated the Establishment Clause, because it impermissibly discriminated in favor of religion.

But the Court had before then upheld some religion-specific exemptions, so Justice Brennan had to explain when such exemptions were permissible and when they weren't. Here is what he said:

[W]hen government directs a subsidy exclusively to religious organizations that is not required by the Free Exercise Clause and that [(1)] either burdens nonbeneficiaries markedly or [(2)] cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion, as Texas has done, it [violates the Establishment Clause.

(We can set aside the "is not required by the Free Exercise Clause" phrase because of later developments.)

Yet that's what he said in the text; here's what he said in footnote 9:

[W]e in no way suggest that all benefits conferred exclusively upon religious groups or upon individuals on account of their religious beliefs are forbidden by the Establishment Clause unless they are mandated by the Free Exercise Clause. [Case discussion omitted.-EV] All of these [constitutionally permissible religion-specific exemptions], however, involve legislative exemptions that [(1)] did not, or would not, impose substantial burdens on nonbeneficiaries while allowing others to act according to their religious beliefs, or [(2)] that were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause.

So the text essentially says: Unconstitutional if (1) substantial burden on nonbeneficiaries or (2) no removal of state-imposed deterrent to religious exercise.

The footnote essentially says: Constitutional if (1) no substantial burden on nonbeneficiaries or (2) removal of state-imposed deterrent to religious exercise.

Sounds congruent, because not (A or not B) sounds equivalent to not A or B. But of course the two aren't equivalent; DeMorgan's Law says not (A or not B) is equivalent to not A and B.

The opinion is thus essentially internally inconsistent. It's theoretically possible to reconcile the two provisions, for instance by saying that the test in the text is limited to subsidies (including tax exemptions) and the test in the footnote is more general, or by reading the elements of each test subtly differently. But I doubt this makes sense; I think the Justices were trying to make the tests cover the same territory, use the same elements, and be functionally identical. Unfortunately, they broke DeMorgan's Law, and are being punished by having their opinion reduced to incoherence.

"Why Hillary Is Silent on Spitzer":

GayPatriot expresses one view (thanks to InstaPundit for the pointer); Rosa Brooks at Slate's XX Factor and Christopher Beam at Slate also opine, with Brooks faulting Clinton for her (relative) silence.

Here's my quick off-the-cuff thought: There's something very sad about Spitzer's downfall -- an intelligent and successful man undone by his appetites, a lifetime of ambition and fighting largely squandered for a few moments of pleasure.

Those who disapprove of Spitzer on various grounds may well feel some vindication and schadenfreude, and they may be right to some extent. (I haven't followed Spitzer's career closely, but my guess is that I'd share their condemnation of much that Spitzer has done.) But surely one can't expect most liberal or liberalish Democrats, including both Hillary and Hillary's base, to feel that way. To them this is a sad occasion, the ruin of a man with whom they may have worked, and whom they likely respect in considerable measure (even if they have had difficulties with him, as Hillary has).

It thus seems to me that Spitzer's political allies might feel, both as a matter of kindness and of loyalty, that they should keep quiet rather than condemning Spitzer, or using his fall as occasion for some broader substantive discussion (for instance, "about what it's like to be a woman in a world where too many of her male peers think sex is a perk of the job"). If it emerges that Spitzer wants to continue in office in spite of his actions, then I think at some point fellow Democrats should speak out against him. But it looks like he's already being punished enough. I can certainly see why his allies might not want to pile on, and might not want to be seen by others as piling on.

On top of that, my sense is that Hillary has an extra problem: Any substantive statements she makes on this topic seem likely to play into the common public image of her as schoolmarmish and scolding. Yet another reason, I think, for her to stay as silent as possible.

Now there may well be other reasons as well, such as those mentioned by GayPatriot. My point is simply that there are so many reasons that it's hard to identify any as the main one -- and hard to condemn Hillary for doing what seems to be the more loyal and kind as well as the more politically savvy thing to do.

Lawsuit Seeking to Challenge Sen. McCain's "Natural-Born Citizen" Status:

It's Inland Empire Voters v. United States, No. CV-08-00304, filed March 6. I suspect it will get thrown out on procedural grounds, and for the reasons Jim Lindgren discussed, it lacks merit substantively; but I thought I'd post the Complaint, and pass along a link, so people can read for themselves.

-Tion/-Sion Verbs That Aren't Also Nouns:

A puzzle from Michael Lorton:

Most words that end in -tion or -sion are nouns, but some are also verbs: consider mention, proposition, question, section, and station. What words that end in -tion or -sion are verbs but not nouns?

UPDATE: "Stunning, overwhelming thread victory."

Utah Tasering Incident Leads to $40,000 Settlement: Back in December, I blogged about a traffic stop tasering in Utah and asked readers to vote on whether the officer's use of force was reasonable. The "taseree" in the case filed a civil suit, and today the New York Times's The Lede blog reports that the the state of Utah settled the case for $40,000. Thanks to Mark Eckenwiler for the link.
"Collateral Misinformation":

From the Urban Dictionary, via GeekPress:

When someone alters a Wikipedia article to win a specific argument, anyone who reads the false article before the "error" is corrected suffers from collateral misinformation.

[Example:] "I changed the scientific classification of red foxes last night in order to win an argument with Judy. I hope some stupid High School student didn't suffer from collateral misinformation."

And, no, this isn't a "real" phrase, in the sense of a phrase that is actually commonly used, even by some subculture (see this search).

Virtual Tour of the U.S. Supreme Court Building: You can take it here. Lots of cool stuff, including the super-secret Justices' conference room, what it looks like from the courtroom lectern for advocates, and four of the Justices' chambers.
University of California v. Animal Liberation Front:

The University of California Regents is suing several animal rights organizations in response to protests and harassment of researchers. Such legal tactics works for the Regents before, but internet organizing may make things more difficult.

The regents hope to win a permanent injunction similar to one granted against Last Chance for Animals in 1989. But some experts note that the regents now are battling more violent, Internet-savvy foes who thrive in online communities, post faculty "targets" on Web sites and upload how-to guides for their attacks.

"The reality is that, unlike in the past, where movements really relied on interpersonal communication and gatherings to ferment this radicalization, all this is happening online now," according to Oren Segal, co-director of the Anti-Defamation League's Center on Extremism in New York. "The ability for people to learn about the movement and how to carry out attacks on behalf of it are easier than it's ever been because of the Internet."

Indeed, a temporary restraining order -- prohibiting harassment and posting of faculty members' personal information on the Internet -- was granted Feb. 21 by a Los Angeles County Superior Court judge. But three days later, six masked protesters reportedly disrupted a child's birthday party at the home of a University of California at Santa Cruz researcher and confronted her husband at the door, hitting him on the hand.

It is unclear whether the protesters are connected to those named in UC's lawsuit.

Biofuel Byproduct Not So Eco-Friendly:

An interesting story about pollution from a biodiesel plant.

After residents of the Riverbend Farms subdivision noticed that an oily, fetid substance had begun fouling the Black Warrior River, which runs through their backyards, Mark Storey, a retired petroleum plant worker, hopped into his boat to follow it upstream to its source.

It turned out to be an old chemical factory that had been converted into Alabama’s first biodiesel plant, a refinery that intended to turn soybean oil into earth-friendly fuel.

“I’m all for the plant,” Mr. Storey said. “But I was really amazed that a plant like that would produce anything that could get into the river without taking the necessary precautions.”

But the oily sheen on the water returned again and again, and a laboratory analysis of a sample taken in March 2007 revealed that the ribbon of oil and grease being released by the plant — it resembled Italian salad dressing — was 450 times higher than permit levels typically allow, and that it had drifted at least two miles downstream.

The spills, at the Alabama Biodiesel Corporation plant outside this city about 17 miles from Tuscaloosa, are similar to others that have come from biofuel plants in the Midwest. The discharges, which can be hazardous to birds and fish, have many people scratching their heads over the seeming incongruity of pollution from an industry that sells products with the promise of blue skies and clear streams.

Clerk Applicants Who Know Immigration Law:

Several circuits, I know, get lots of immigration cases. (This 2006 item reports that immigration cases made up 40% of the Ninth Circuit's caseload; I imagine that many of these cases would get handled by staff attorneys, but many end up in the clerks' hands.) Yet my sense is that many incoming law clerks haven't taken immigration law, which is a pretty complicated subject.

This made me wonder: Are there circuit judges who give some preference -- not a huge preference, I'm sure, but some -- to applicants who have shown substantial knowledge of immigration law, for instance by taking a class on the subject and by writing their student Note on it? Obviously, the judges would still expect such applicants to have high grades. But my thought was that some judges might relax their grade standards in some measure if the applicant has this valuable knowledge base. If you know of some such, please mention this in the comments, or e-mail me at volokh at Many thanks!

The Double-Proxy Wedding:

Apparently you can get married in Montana without showing up.

UPDATE: I see Eugene beat me to it. Ah, the perils of blogging on the road. FWIW, I was pointed to the story by a Montanan whose nuptials are pending . . . though he swears he plans to attend his own wedding. I've yet to meet the bride-to-be, so I can't be sure she'll be there too.

Etymological Contradictions:

The (perfectly proper) phrase "Split the atom" has this unusual property: It expressly contradicts the original-language meaning of the term "atom." "Atom" comes from "a-" (not) and "tom" (from the greek "cut," as in "appendectomy"). "Split the atom" thus means "split the thing that can't be split."

Are there other terms that fit this mold? Please make sure that you have your etymology right before posting examples. Best of all would be linking in your comment to a dictionary that notes the etymology.

How Spitzer Was Caught: Of all the ironic aspects of the Elliot Spitzer scandal, I think the most remarkable is how he got caught. Based on stories like this and this, it looks like Spitzer got caught because the prostitutes he hired were so expensive that he needed to shuffle several thousands of dollars around each time. Spitzer knew that banks report suspicious money transfers to the IRS to combat financial frauds and money laundering, so he tried to structure his money transfers to avoid suspicion. But the banks thought his activity was still suspicious, so they reported him and the IRS opened an investigation under the assumption that Spitzer was trying to launder money he had obtained from bribes. But he wasn't laundering money — he was paying prostitutes. So Elliot Spitzer, aggressive former white collar crime prosecutor, was brought down because he couldn't outsmart banks looking for evidence of white collar crimes.
Obama , Hillary Clinton, And The Structural Flaw of the Vice Presidency:

I'm not the world's biggest fan of Barack Obama. But he did make a good point today when he noted the tension between Hillary Clinton's stated willingness to take him on as her vice presidential running mate and her earlier claims that Obama isn't qualified to be president:

"You all know the okey-dokey, when someone's trying to bamboozle you, when they're trying to hoodwink you?" Obama said to the crowd at the Mississippi University for Women. "You can't say that, 'He's not ready [to be president] on day one unless he's willing to be your vice president, then he's ready on day one.'"

Obviously, if Obama is genuinely not ready to be president, it would be irresponsible for Hillary Clinton to have him as her Veep. After all, the main job of a VP, as one former holder of the office put it, is to "wait around the for president to die" and be ready to succeed him at any time.

The underlying problem goes beyond Hillary Clinton, however. Like her, presidential candidates often have strong incentives to choose VPs who might give them an edge in the general election even though they are poorly qualified for the top job. To paraphrase General George Patton, people get chosen for the vice presidency whom neither God nor the Party intended to be president (I paraphrase from memory; if anyone has the exact quote please send it to me).

Several times in our history, this has led to disaster when a dubious Veep ended up taking the presidency after the president died. The most blatant example was when Andrew Johnson assumed the presidency after Lincoln's assassination and promptly began undermining Reconstruction efforts to provide equal rights for blacks in the South, a policy that may have lost the nation it's best chance to overcome the legacy of slavery and at least partially forestall the rise of Jim Crow segregation. Lincoln selected Johnson as his 1864 running mate because he needed a former Democrat and slave state politician to "balance" the ticket. Had he stuck with incumbent VP Hannibal Hamlin (a Maine Radical Republican), history might well have turned out a lot better than it did. I would argue that the succession of VPs Millard Fillmore (1850), John Tyler (1841), Chester Arthur (1881) and Lyndon Johnson (1963) also caused significant harm, though these cases are more debatable than Andrew Johnson.

There are several alternative ways to ensure that a president who dies or resigns is replaced by a politician from his own party without creating the risk of giving the job to a poorly qualified veep. For example, the Constitution could be amended to allow the next president to be chosen by a supermajority of the members of Congress of the president's party. I won't go through all the possible options here. But I suspect at least some of them are likely to be superior to the substantial risks created by the current system.


Monday, March 10, 2008

Interesting Federalism Case: My good friend Erica Hashimoto has a guest post at Concurring Opinions on a very interesting Supreme Court case, Riley v. Kennedy. The question: Can officials in the Department of Justice charged with enforcing the Voting Rights Act require a state to comply with a local ordinance that the state’s highest court has held violates the state constitution?
A Headline I Would Not Want the Justices To See the Morning of the Second Amendment Oral Argument

(apropos Orin's post):

Gunfight Erupts Over Place in Line for Supreme Court Argument

I'm sure this won't happen, of course.

Related Posts (on one page):

  1. A Headline I Would Not Want the Justices To See the Morning of the Second Amendment Oral Argument
  2. When To Show Up to Get a Seat for DC v. Heller?:
When To Show Up to Get a Seat for DC v. Heller?: Several people have contacted me expressing interest in attending the oral argument on March 18 in the Supreme Court's Second Amendment case, DC v. Heller, and wondering when they should show up to get a seat. Just in case others might be thinking about this, I thought I would blog my response.

  First of all, let me point out the obvious that no one really knows the answer. I'm just guessing when people might show up, and when people show up depends in part on their guesses as to when other people might do the same. With that said, I would guess that the line will fill up for Heller earlier than for any other argument in recent years (and perhaps ever).

  This is true for a few reasons. First, millions of Americans have tremendously passionate feelings about their rights to own guns. Second, Heller is the extremely rare case in which the Justices are essentially writing on a clean slate: There is almost no relevant precedent at all here, which means that the Court may set the basic terms of the debate. Third, this has otherwise been a very quiet Supreme Court Term. Heller is the most significant case being argued this Spring, making this the hot ticket.

  What does this mean in terms of how early you need to show up? In recent years, the public line for blockbuster cases has tended to fill up sometime the night before. For example, in the Grokster case in 2005, the public line filled up around 10pm the night before (more here); in the Boumediene case this past fall, about 50 people camped out over night. In light of this, I wouldn't be surprised if some people get in line a full day or even more before argument time. I don't know how many people will try this, but the Supreme Court's courtroom is pretty small. If you really want to make sure you get a seat, it's probably a good idea to think of showing up in the middle of the day the day before the argument. My guess is that showing up that night won't work. That's my best guess, at least.

  Finally, remember that the oral argument audio will be released shortly after the argument ends. You might still want to go just for the experience, but if you don't make it you can hear the argument about an hour later from your computer.
"That Strange and Sacred Ceremony, the Double-Proxy Wedding,"

in Montana — "the presence of neither the bride nor the groom is required." The New York Times reports. As one might gather, soldiers stationed overseas, often far from their wives-to-be, are especially likely to take advantage of this. In any case, an interesting story, for the little details as well as the big picture.

Thanks to Peter Wizenberg for the pointer.

Beer and Ale: The Clerk of the Court at the U.S. Supreme Court put out a very helpful guide for lawyers who will be arguing before the Court that contains this anecdote:
One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: "What is the difference between beer and ale?" The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.
Seems to me there are two possible lessons here. First, always prepare for oral argument. Second, know your beer.
Common Trait of Handguns and Soda Containers

(but not of most other things) -- a fun puzzle from Glen Whitman (Agoraphilia).

Trial Transcript:

Check this out; I laughed out loud. I do not, however, vouch for the transcript's authenticity. Thanks to commenter alias.

Christina Hoff Sommers on Women, Science, Antidiscrimination Law, and More:

The article is here; I don't know enough about the subject to have an informed opinion, but I generally respect Sommers' work, and the matters she describes struck me as quite worrying. Naturally, if you can point me to a thoughtful rebuttal to Sommers' argument, I'd be glad to link to it.

Is the Plural of Cactus "Cacti" or "Cactuses"?

Both are just fine, as you can verify in the dictionary. ("Cactus" is apparently also standard.) Cacti appears more common, judging both by a Google search and a Westlaw ALLNEWSPLUS search; but cactuses is clearly fully standard.

I generally prefer to use English-formed plurals like "cactuses," rather than original-language plurals. On the other hand, others might prefer to use the more common term, partly because they worry that some readers might wrongly assume that "cactuses" is wrong. And if you're writing for a specialized field (for instance, botanists), it's generally safer to use the term that's most common in that field (I don't know which that is, but I take it that botanists do).

But in any case, there's no basis for treating either term as an error. As with many either-or questions related to usage or pronunciation, the answer here is "both."

$29K Sanction for Client's Frequent Use of "Fuck" During Deposition:

The Legal Intelligencer reports:

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.
From the opinion:
Throughout his deposition, [Aaron Wider, the owner and chief executive officer of Defendant HTFC Corp,] sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity.
Q. [T]his is your loan file, what do Mr. and Mrs. Fitzgerald do for a living?
A. I don’t know. Open it up and find it.
Q. Look at your loan file and tell me.
A. Open it up and find it. I’m not your fucking bitch.
Q. Take a look at your loan application.
A. Do it yourself. Do it yourself. You want to do this in front of a judge. Would you prefer to [do] this in front of a judge? Then, shut the fuck up.

Living Constitutionalism: Michael Dorf has a new Findlaw column up on Who Killed the "Living Constitution"? in which he argues that " that the living Constitution is a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for." According to Dorf:
If the "living Constitution" metaphor is understood in the way that Rehnquist and Scalia understand it, then it is easy to see why the metaphor--if taken as a jurisprudential roadmap--would be bad for democracy. When judges rely upon the Constitution itself to hold a legislative act invalid, they serve the higher law, duly adopted pursuant to the rigorous ratification process. However, when judges "substitute" their own values for the Constitution's values, and then use those substituted values as the basis for invalidating legislative action, they illegitimately take important decisions away from the people's elected representatives.

Yet the foregoing is a valid critique only if champions of the living Constitution really think that they have a warrant to substitute their views for those of the Constitution. In fact, however, no serious judge, lawyer or academic argues for that.

Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls. For example, Article II states that no person under the age of 35 can be President, and no champion of the living Constitution would argue that nonetheless an especially precocious 32-year-old should be deemed Presidency-eligible simply because she dislikes the textual limit.

Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text. Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation. (I explored the relation between this formulation of originalism and the more traditional focus on "framers' intent" in an earlier column, but we can put aside these nuances here.) The act of ratification by that earlier generation of Americans gave the text its power as law, and therefore, that earlier generation's understanding should prevail, originalists say.

By contrast, living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.
There is much that can be said about Dorf's column. Larry Solum has a nice response on his Legal Theory Blog. There he notes that Dorf has confused the problem of ambiguity with that of vagueness, and failed to take into account the degree to which the New Originalism allows, indeed requires, nonoriginalist constitutional construction when the language of the Constitution is vague. This is why Jack Balkin thinks that originalism is compatable with "living constitutionalism" and why back on 1999, I dubbed my approach to be "an originalism for nonoriginalists." Here is how Solum explains this distinction:
But the contemporary theoretical landscape is a lot more complicated than that. (Dorf is writing a short column and certainly isn't obliged to do a literature review in that context.) Dorf is assuming a theoretical move that might be called "incompatibilism"--the view that originalism and living constituitonalism are incompatible. But this view has been challenged, most prominently by Jack Balkin, who argues for "compatibilism"--the view that adherence to original public meaning is consistent with "living constitutionalism" in what we might call the "zone of construction" (relying on the Whittington-Barnett distinction between "interpretation" and "construction").

There is, however, a much deeper problem with Dorf's description of the theoretical landscape. Dorf says "Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls," but "clarity" is itself a poor term to describe what is going on here. There are two distinct sources of constitutional "underdeterminacy": vagueness and ambiguity.

Ambiguity occurs when a constitutional unit of meaning (term, phrase, or clause) has more than one sense. When original public meaning (conventional semantic meaning at the time of constitutional utterance) is ambiguous, context usually resolves the ambiguity. Living constitutionalism is usually irrelevant in cases of ambiguity. The constitution uses the phrase "domestic violence" to refer to insurrection or revolt within the territory of the United States. No one sensible thinks that the fact that "domestic violence" has now acquired a new sense, referring to spouse and/or child abuse creates an ambiguity that should be resolved by reference to "living constituitonalism". Originalists and living constitutionalists should be agreed that when the context of constitutional utterance resolves an ambiguity, the disambiguated semantic content of the constitution has the force of law.

Vagueness occurs when a constitutional unit of meaning has borderline cases. For example, phrases like "executive power" or "freedom of speech" are vague. The central insight of the "New Originalism" is that the original public meaning of the Constitution can just be vague--original meaning can run out. When the constitution is vague, resolution of the vagueness (line drawing) requires what Keith Whittington calls "constitutional construction." But precisely because construction operates in the zone of vagueness where "original public meaning" (conventional semantic meaning at the time of constitutional utterance) runs out, there can be no deep disagreement between originalists (qua originalists) and living constitutionalists on the proper method of construction. Of course, particular originalists can disagree among themselves and with living constituitonalists about methods of construction. But when originalists turn their attention to methods of construction, they move beyond the core commitment of originalism to the proposition that the semantic content of the constitution wax fixed at the time of constitutional utterance. That is, the views of particular originalists about proper methods of constitutional construction are outside the core of originalism as a theory.
The phrase "natural born citizens" is ambiguous. It could be a term of art at the time of the Founding that refers in part to persons born in the United States and subject to its jurisdiction (or something even more particular as described here), or it could have the modern meaning of someone born naturally, i.e. not by cesarean section or in vitro fertilization. No one thinks, including Dorf, that we make this choice based on which meaning we like best. Everyone thinks we must ascertain the original public meaning of this term, whatever it may be. Most of the words and sentences in the Constitution mean the same today as they did then but sometimes the meaning of a specific phrase like "natural born citizen" is no longer part of our lexicon and is archaic. We then need to investigate and discover its original public meaning. By the same token, the original meaning of whole passages of the Constitution, like the Privileges or Immunities Clause of the Fourteenth Amendment, are now ignored because judges thought they got in the way of government power. These passages are now "dead" or, to switch the metaphor, they are "lost."

In contrast to ambiguity, as Solum notes, any word can be vague depending on the context, and so can the original meaning of a term in the Constitution. For instance, while the meaning of "search" has not changed since the founding, whether a particular activity is a search or not cannot be decided historically. Is the thermal image of a house to detect increased heat emanating from grow lights a search? All modern courts can do is apply the original meaning of "search" and then decide whether this activity is sufficiently close to the core or paradigm meaning of the term to be included. And judicial opinion on this question can evolve as part of a "living" constitutional law.

Moreover, Dorf is correct to note that some originalists might try to answer the question of construction by asking what the framers would have intended, but this is a residual carry over from the prior original intentions originalism that, at least in the abstract, has been largely abandoned. To ask how the framers would have decided a question is to pose a counterfactual not a factual question, and one that has no historical answer. Dorf would be right to criticize such originalists as back-sliders from original public meaning originalism, but he is wrong to tar all originalists, especially the New Originalists, with the same brush.

Similarly, I also think he he wrong to deny that some who famously used the term "living constitution" did so to justify the judicial alteration of the Constitution, especially by eliminating the parts they deem to be archaic. Consider Dorf's own views on the Second Amendment in which he posits that Supreme Court precedents should trump the original meaning of the text:
Although eclectic interpretive theories customarily list authoritative text as the first consideration in ascertaining meaning, I shall defer consideration of the Second Amendment’s text as such until Part II. I do so not simply because the Second Amendment lacks a “plain meaning,” but because, contrary to conventional wisdom, constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis.
Notice that he does not repeat this formulation of his approach in his Findlaw column probably because it would tend to conform to, rather then undermine, the stereotype of living constitutionalism. In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution.

That would be the whole Constitution. Even the "lost" parts like the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment that restrict the powers of the federal and state governments, despite the fact that the Supreme Court in all its wisdom has decided these provisions of the text are meaningless.

Update: I think this exchange from the comments is worth adding to the original post:

Commenter: So what do originalists propose in the situation in which the Constitutional text is vague such that neither the text nor its history provides any clear answer? Such cases seem to me to be quite common among the tiny sliver of cases that reach the Supreme Court.

Me: There is no consensus "originalist" answer to your question. This is something originalists should be debating respectfully among themselves. What originalists should not do is default to "framers intent" without a serious defense of that method of constitutional construction. A lot will depend on your theory of constitutional legitimacy. If you think the legitimacy of the Constitution rests on (someone's) consent, you may do it one way. (But you had better have a reasonably well worked out theory of consent.) If you reject consent theories, as I do, and think the Constitution's legitimacy rests on the justice of the government it establishes coercively imposing laws on those persons who do NOT consent, then you may do it another way. In this spirit, I propose the adoption of a "presumption of liberty" to replace the current "presumption of constitutionality" as currently qualified by the Supreme Court doctrine of "fundamental rights."

Be this as it may, any constitutional construction must stay within the "frame" provided by original meaning. Just because original meaning cannot completely handle a particular case and controversy does not mean it does not limit the range of possible constitutional constructions available to a conscientious interpreter. An originalist rejects contradicting or overriding what original meaning there is with something the "interpreter" likes better. While this leaves considerable room for an evolving constitutional law, that is one reason why the Constitution is still useful after all these years. It is a feature not a bug.
I should also add that there are a great many "easy" cases resolved by original meaning, including some that the Supreme Court has long gotten wrong. Gonzales v. Raich is one recent example. In Raich only one justice even purported to apply original meaning, and that was Justice Thomas. Justice Scalia's concurring opinion was squarely within the New Deal Court's misreading of the "living" Constitution. The existence of hard cases of constitutional construction is no good reason to wrongly decide cases that are easily handled by original meaning, even if such a decision cuts against the grain of the four "liberal" justices' preference for strong federal power.

"Kentucky Lawmaker Wants to Make Anonymous Internet Posting Illegal":

WTVQ reports (thanks to Andy Banducci for the pointer); the bill text is here. Pretty clearly unconstitutional, see McIntyre v. Ohio Elec. Comm'n (1995) and the cases on which it relies. Plus of course any such state law would likely violate the dormant Commerce Clause, because it would end up affecting speech throughout the whole nation (given that even national ISPs would have to implement such policies for all their users, because national ISPs "do[] business" in Kentucky).

I should note that the First Amendment doesn't categorically protect anonymity: If someone sues you, or the government tries to prosecute you, based on your speech, and there's a credible claim that your speech indeed falls into a First Amendment exception, the plaintiff or prosecutor can indeed get subpoenas aimed at uncovering your identity. Likewise, the Court has upheld certain kinds of identification requirements for expensive speech related to candidate campaigns, and for corporate speech even about ballot measure campaigns; and identification requirements of some sorts may indeed be constitutionally permissible. Nonetheless, the constitutional rule is still that anonymity is presumptively protected, and a blanket ban on online anonymity such as this one would be pretty clearly unconstitutional.

Finally, let me mention that this is another area in which generalizations such as "suppression of speech has become a liberal monopoly" are mistaken. The legislator who introduced the bill is a Republican, and the two Justices who would have generally rejected a right to anonymous speech in McIntyre were Justice Scalia and Chief Justice Rehnquist. And this was so even though the law applied to clearly political speech; even "suppression of [political] speech has become a liberal monopoly" (an argument tailored to exclude matters such as sexually themed speech) are inaccurate here.

Of course, in McIntyre, other conservatives and moderate conservatives — Justices O'Connor, Kennedy, and Thomas — voted to protect the right to anonymous speech. And where the spending of substantial sums of money for speech is involved, liberals tend to be more willing than conservatives to require some sorts of disclosure (though many conservatives support such disclosure as well). But that just helps show that both the "liberals want to suppress speech / conservatives want to protect speech" and the "liberals want to protect speech / conservatives want to suppress speech" arguments are generally not sound today, at least when put at that level of generality.


The Defenders of Pork are preparing for battle, now that McCain has put pork in the center of the political debate. Joel Achenbach, in an article on the front page of today's Washington Post ("McCain sees Pork where Scientists See Success; Candidate Criticizes Ambitios Bear Study"), reports on a $3 million federal study to collect bear DNA in Montana; the study, which has been the subject of a number of McCain ads ridiculing the expenditure, turns out, according to many scientists quoted, to have been a major success, money well spent.

Now, I actually am a big fan of spending federal money to study bear DNA -- seriously. I spent a number of years, some time ago, as a wildlife biologist, and I am quite willing to believe that this was a useful study that collected important and valuable data on the genetics of the grizzly bear. BUT THAT'S NOT THE POINT. The point is: we have a specialized agency (many of them, actually) that hands out money for worthy research projects -- it's called the National Science Foundation, and it funds many, many worthy projects. May it long continue to do so; I've got no problem with Congress increasing the NSF's budget. The problem is that there are thousands of worthy research projects out there, and CONGRESS should not be deciding which ones are worthy of support and which aren't. That's the problem with pork and earmarks and the rest -- not that they don't ever do any good, but that the law-making process cannot possibly decide between the good projects and the bad ones, and will, inevitably, make those decisions on the wrong (i.e on political) grounds.

Don't Sell Ads on Your Blog:

Just a friendly public service reminder, prompted by a brief conversation I had over the weekend: If you (1) make only a little money by selling ads on your blog (or having a tipjar), and (2) you have homeowner's insurance (or, in some instances, renter's insurance), and (3) you worry about the possible risk of defamation lawsuits, invasion of privacy lawsuits, and the like -- and the expense of defending the lawsuits even if you ultimate prevail -- consider going entirely noncommercial.

As I discussed three years ago, many homeowner's insurance policies cover you for libel, invasion of privacy, and the like, including for the costs of defending the lawsuits. But they generally expressly exempt liability that's based on your "business pursuits," which may include even those pursuits on which you make a pittance.

So check your insurance policy, and if it fits the description I give, check your ad and tip income. If it's, say, only $250/year after taxes, ask yourself: Would I spend $250/year to buy insurance against libel and invasion of privacy liability (and defense costs)? If your answer is yes, then consider giving up any business aspect to your blog, which will give you insurance coverage in exchange.

You Know You're in Trouble When

the appellate court handling your constitutional appeal begins its opinion by putting "civil rights" in quotes:

This “civil rights” case is about ....

Thanks to Decision of the Day for the pointer.

More Prisons, Less Crime (continued)

Over at Crime and Consequences, Kent Scheidegger has this intriguing post on the connection between incarceration and crime rates. Expanding on a graph that I presented depicting crime rates vs. incarceration rates from 1978 to 2006, Kent goes one better and shows crime rates vs. prisoners back to 1960. The correlation is striking -- as the nation cut back on prisons, crime rates went up; as the nation invested in prisons, crime rates went down.

More important, Kent lays out the astute point that the number of prisoners per capital is a meaningless statistic. What we really want to know is the number of prisoners per crime -- something that critics of our nation's high incarceration rate have been loath to discuss.


Sunday, March 9, 2008

The Biggest Weakness of Conservative and Libertarian Public Interest Law:

In previous posts, I have discussed the rise of conservative and libertarian public interest law, chronicled in Steve Teles' recent book, The Rise of the Conservative Legal Movement. As Teles shows, groups like the Institute for Justice and Center for Individual Rights have made major inroads in a field once overwhelmingly dominated by the left. However, as Teles notes, the conservative/libertarian public interest movement still has one major weakness relative to its liberal rivals: the comparative paucity of lawyers available to litigate "follow-up" cases that enforce and build on major favorable precedents.

This is a very important shortcoming. One of the most powerful findings of social science research on judicial review is that even the most important precedents don't enforce themselves. Government officials and interest groups will generally do all they can to evade or ignore judicial decisions that restrict their powers. It took some twenty years of follow-up litigation (not to mention congressional intervention) to force southern public schools to obey Brown v. Board. There are many similar, even if less extreme, examples. In some cases, necessary follow-up litigation can be conducted by business interest groups with a financial stake in the outcome. For example, abortion clinics did some important follow-up litigation after Roe v. Wade. However, this will rarely be true of cases where the most important beneficiaries of a decision are poor or politically weak. In such situations, pro bono efforts by private attorneys can play a crucial role. And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others. The wealthy and powerful can usually defend their property rights and other economic interests in the political process and therefore have much less need for judicial protection.

As Teles describes in his book, liberal public interest lawyers can rely on an extensive network of attorneys in private law firms and bar associations to do follow-up work for them on a pro bono basis. Despite some modest efforts to create a parallel network, conservatives and libertarians lag far behind in this field. It is no accident that top lawyers at both IJ and CIR identified this as probably the most important weakness of right of center public interest law.

There are several possible explanations for this disparity, some of which I may discuss in a future post. But whatever the explanation, it's a serious problem that needs greater attention. Over the years, the Institute for Justice has tried to address by creating its "Human Action Network" to stimulate pro bono efforts, and by sponsoring summer clerks and law student conferences (my own interest in property rights issues stems from my time as a n IJ summer clerk in 1998). However, a great deal remains to be done, and no one group can possibly do it by itself.

UPDATE: Tim Sandefur of the Pacific Legal Foundation (a prominent libertarian public interest law firm) responds to this post by noting that PLF does do some important "follow up" litigation, and that it's not realistic to expect them and other similar groups to do much more of it, given resource and time constraints. I think Tim perhaps misunderstands my point (which may be a consequence of my not explaining it as well as I should have). It's not that PLF and other public interest firms should do the follow-up litigation themselves, but that there should be an infrastructure for having it done by outside lawyers (such as pro bono lawyers working at ordinary law firms); this is how liberal public interest "follow up" work gets done. I recognize that it's impossible for public interest law firms to do more than a small number of such cases on their own. That's precisely why they need a network of outside supporters to help them with it.

DC v. Heller: Nathan Kozuskanich's selective reading of American History

In the Supreme Court's Second Amendment case District of Columbia v. Heller, DC and its amici frequently cited a then-forthcoming Rutgers L. Rev. article by Nipissing University assistant history professor Nathan Kozuskanich, a protege of Saul Cornell. DC's reply brief, filed last Wednesday, cites another unpublished Kozuskanich article, this one in the U. Penn. Journal of Constitutional Law.

A pair of new postings by Clayton Cramer analyze the J. Constl. L. article, and the Rutgers article. To call the articles "law office history" might be unfair to law offices.

Regarding the J. Const. L. article, Cramer explains how Kozuskanich's theory (that the right to arms in early Pennsylvania was only for collective defense of the state) depends on ignoring other evidence, and on strained, implausible readings of the evidence that Kozuskanich does present.

For example, Kozuskanich points to the prosecution of Dr. James Reynolds for "assault with intent to commit murder." Kozuskanich claims that the prosecution proves that Pennsylvania's constitutional right to arms did not apply to individual self-defense.

But as Cramer notes, Dr. Reynolds was never charged with a crime for his mere carrying of the pistol; he was charged with a crime because he pointed the pistol and threatened to shoot someone. The book American State Trials observes that Reynolds "contented himself with carrying a pistol. And in this he was justified by every law, human and divine." Certainly no-one at the trial contended otherwise; so Kozuskanich's claim that the prosecution for attempted homicide proves that there was no individual right to own and carry guns is implausible.

The prosecution's theory of the case was that Dr. Reynolds, who was in a public place, could have safely retreated from threatening mob, and that Blackstone's standards for self-defense require such retreat. The jury, however, acquitted Dr. Reynolds.

The Reynolds case is a good example of the beginning of the split between the more restrictive British standards of self-defense, and the new, more liberal American standards. That conflict on self-defense standards continues to the present day. But arguments about the boundaries of self-defense (such as whether there is a duty to retreat if possible) certainly do not disprove the existence of a constitutional right of individuals to have guns for personal self-defense.

Joseph Olson and Clayton Cramer, in an article in the Georgetown Journal of Law and Public Policy offer numerous examples of Founding Era usage of "bear arms" to mean carrying guns in a non-military setting. Tellingly, Kozuskanich simply ignores the Olson/Cramer evidence, for that evidence demolishes Kozuskanich's theory.

Cramer's critique of the Rutgers article observes that Kozuskanich actually cites Michael Bellesiles, who was forced to resign from Emory after the proof (brought forward by Clayton Cramer, James Lindgren, and others) that Bellesiles had falsified his data, including his data on the very point for which Kozuskanich cites him (the supposed scarcity of guns in early America).

Article XIII of the Pennsylvania Constitution of 1776 guaranteed "That the people have a right to bear arms for the defence of themselves and the state." The opening language, "That the people have a right", was identical to Articles X, XII, and XVI, which guaranteed the individual rights to freedom from unreasonable search, free speech/press, and petition/assembly.

Kozuskanich quotes extensively from the Pennsylvania Convention's debates on Article VIII of the Constitution--affirming that everyone is bound to serve in the militia, or pay "an equivalent thereto" (that is, a fee whereby conscientious objectors could be excused from serving personally). Kozuskanich claims that the Article VIII debates prove that there was no individual right to arms for self-defense. As Cramer notes, this is silly. The Article VIII debates were not, of course, about an individual right, which was the subject of a separate article; the Article VIII debates involved the scope of a duty.

Kozuskanich's approach to Pennsylvania is similar to the approach that his mentor, Prof. Cornell, uses for St. George Tucker (the leading constitutional scholar of the Early Republic): quote Tucker's words about congressional militia powers arising from Article I of the federal Constitution, and claim that those words prove that the Second Amendment does not involve arms for personal defense. (For more on this latter point, see Stephen Halbrook's article in the Tenn. J. L. & Pol.

Sunday Song Lyric: I heard this morning on NPR that today is Barbie's birthday. The popular Mattel doll made its debut on March 9, 1959 at the American International Toy Fair in New York. The doll has prompted controversy from the beginning, and is a frequent subject of parodies.

In 1997, Danish pop group Aqua released the chart-topping single "Barbie Girl." The song was easily Aqua's biggest hit, but is also a very annoying song, at least according to Rolling Stone. Here's the chorus:

I'm a Barbie girl in the Barbie world
Life in plastic, it's fantastic
You can brush my hair, undress me everywhere
Imagination, life is your creation.
The full lyrics are here.

Mattel did not think too much of the song. Arguing it portrayed the toy icon as a "bimbo," Mattel sued for copyright and trademark infringement. The suit was ultimately unsuccessful however. On appeal, in Mattel v. MCA, Judge Alex Kozinski found against Mattel, and advised the parties "to chill."