Here they talk about "strict construction, federalism, and judicial modesty." And now we see that the Heller Second Amendment argument "is about" "the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe." "After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right." That's what Dahlia Lithwick (Slate) reports.

Here's the trouble: To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text. To say "that 'when a fundamental right is at stake, there is a role for judicial review,'" as Lithwick quotes Heller's lawyer saying, is not "in the spirit of Roe v. Wade." It's in the spirit of every case (say, every First and Fourth Amendment case) that is applying a constitutional right that's right there in the constitutional text.

Now of course some argue that the Second Amendment's text, properly interpreted, does not secure an individual right. I disagree with this, and so apparently do the conservative Justices, but there's obviously such an argument to be made. But Lithwick doesn't make it.

Lithwick says the conservatives are "abandon[ing] ... strict construction." But to actually make this bare assertion into an argument, she has to do two things. First, Lithwick must show that the conservative Supreme Court Justices have actually espoused "strict construction." Justice Scalia, for instance, has expressly rejected it: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be -- though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be constructed reasonably, to contain all that it fairly means ...." Second, Lithwick must show that an individual rights view of the Second Amendment is inconsistent with strict construction (or, better yet, with whatever the conservative Justices have actually endorsed). Her account doesn't even try.

Likewise as to "judicial modesty." (David Bernstein has covered federalism very well in an earlier post.) Judicial modesty can mean many things; for instance, it could mean not reaching out beyond the facts of a particular case in order to set forth broad principles for the future. On this view, striking down the handgun ban on individual-rights grounds but reserving for later other questions (such as the proper standard of review for narrower regulations, the proper rules for other weapons, and so on) would be quite modest.

Or it could mean reading the provision in a way that doesn't unnecessarily interfere with the political branches, which sounds like what Lithwick is referring to. ("[Dellinger] reminds Kennedy that he of all people would hate a 'national government that sets a single standard for rural and urban areas, for East and West, North and South,' and that the right to own guns causes 'disputes among experts' such that the courts should hang back and allow the local legislatures to thrash it out.")

But again this assumes the conclusion about what the text means. After all, the conservative Justices agree that, for instance, the First and Fourth Amendments "set[] a single standard for rural and urban areas, for East and West, North and South" and constrain "local legislatures." They may disagree about the particular standard that should be chosen (and in very rare circumstances, such as obscenity law, they may endorse slightly different standards for different areas). Yet they agree that "judicial modesty" means not unnecessarily interfering with the political branches, and they agree that it is necessary to enforce those constitutional constraints that the constitutional text actually imposes.

There are a few scholars whose view of "judicial modesty" is that judicial review should be largely or entirely abandoned. (Lino Graglia at the University of Texas is one.) But none of the conservative Justices on the Court have ever endorsed this view.

Finally, consider one more quote: "When Gura says that the court should be taking normative questions out of the hands of legislature," Lithwick writes, "the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once." The conservative Justices have many disagreements with the Warren Court, on matters such as Miranda or (reaching into the early Burger Court) Roe v. Wade. But all of them have agreed that enforcing those rights that are actually constitutionally protected isn't "channeling the whole Warren Court" but rather channeling Chief Justice Marshall's position in Marbury v. Madison and in the other constitutional cases that went after it.

It's always appealing to accuse the other side of hypocrisy or inconsistency with its own stated beliefs -- after all, one can then set aside the hard work of actually showing why their beliefs are wrong, and instead point out that their positions are mistaken even under their own stated principles. But to do this, one actually needs to demonstrate an inconsistency, with the other side's actual beliefs and not with the beliefs that one is ascribing to them for rhetorical purposes.

"erogenous zoning": sex-traterritorial jurisdiction (as in "Sex-Traterritorial Jurisdiction and the Exercise of Federal International Police Power after United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)").

"Erogenous zoning," by the way, seems to be credited to Larry Tribe; it's used in the 1988 edition of his treatise.

Jeff Rosen's New York Times Magazine article on the Supreme Court and business reports, among other things, on Ted Olson's work with getting the Court to review punitive damages awards. ("According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.") I'm a great admirer of Olson's generally. Olson did argue the first such recent case, Bankers Life & Cas. Co. v. Crenshaw (1988), though the Court there held that all the constitutional claims other than the equal protection had been waived below. And Olson has worked a great deal to promote the anti-punitive-damages claim in public debate.

Nonetheless, at the Supreme Court most of the punitive damages work has come from other lawyers — and, more than any other lawyer, from my Mayer Brown colleague Andrew Frey (I consult for Mayer on a part-part-part-time basis). Andrew argued four such cases: Browning-Ferris Industries v. Kelco Disposal (1989), Honda Motor Co., Ltd. v. Oberg (1994), BMW v. Gore (1996), and Philip Morris USA v. Williams (2007). The last three of these he won.

There were, of course, other cases argued by other lawyers -- besides Olson in Bankers Life, Bruce Beckman argued to limit punitive damages in Pacific Mutual Life Ins. v. Haslip (1991), Sidley's Carter Phillips argued TXO Production v. Alliance Resources (1993), Howrey Simon's William Bradford Reynolds argued Cooper Industries v. Leatherman Tool Group (2001), and Skadden's Sheila Birnbaum argued State Farm v. Campbell (2003). But Frey, I think, is the one who stands out in the sheer number of cases he has argued -- nearly half of all the Court's recent constitutional punitive damages cases -- as well as is the number of his victories. I've got to say that it's pretty cool to work with people like that (though it would surely be cool to work with Ted Olson, too!).

I also thought I'd note that, excellent as Solicitor General Rex Lee was, my colleague Stephen Shapiro -- in league with Paul Bator, one of Mayer's earliest academic affiliates -- was doing business law Supreme Court cases from 1983, the year he left his Deputy Solicitor General.

Disclosure (beyond the above): I worked a very little bit on the briefing in the Philip Morris case.

The AP reports:

New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students.

Language on the site ranges from catty to hateful and offensive. One thread, for example, on the "most overrated Princeton student" quickly dissolves into name-calling, homophobia and anti-Semitism.

JuicyCampus may be violating the state's Consumer Fraud Act by suggesting that it doesn't allow offensive material but providing no enforcement of that rule -- and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday....

The attorney general has also subpoenaed the Web site's advertising agency, Adbrite, to determine how JuicyCampus represented its operation and what advertising keywords the site requested....

Can anyone tell me, please, just what JuicyCampus has been saying that is supposedly a misrepresentation?

I agree that speakers and service providers are bound by their contracts, including contracts not to say or host certain things. They may also in some situations be bound by explicit promises they make in their advertising. But it would obviously be dangerous to have them be liable for broadly "suggesting" certain things. Imagine a state Attorney General prosecuting the New York Times for "suggesting that it" is fair and accurate, and investigating whether they've defrauded consumers because of supposed bias and error. (No, seriously, that sort of prosecution would be bad.)

Likewise, imagine an attorney general going after us for "suggesting" with our comment policy that we'd delete offensive comments, but then not doing a good enough job of deleting them. Of course, we don't say we'll delete offensive comments (we try to discourage such comments, and we may delete them, but we never say we will), but who knows what someone might think we suggest? So can anyone report on what exactly JuicyCampus said that might have been false or misleading?

From Judge Kozinski's opinion yesterday in New Hampshire Ins. Co. v. C'Est Moi, Inc.:

We consider the doctrine that’s on everyone’s lips: uberrimae fidei.

For more on this, see here. Thanks to James S. Tyre for the pointer.

comments an anonymous correspondent, referring to this Pioneer Press (St. Paul) headline:

Gov. Pawlenty appoints lawyer to lead Supreme Court

Yesterday Ilya blogged about Jeff Rosen's New York Times Magazine article on the Supreme Court and business, and also linked to Eric Posner's critique. Here, I wanted to note just one factual item, small by itself but illustrative of a broader problem:

[T]he progressive antagonists of big business are understandably feeling beleaguered and outgunned. “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” ...

1. Warner-Lambert v. Kent (forthcoming 2008)
   On Public Citizen’s side: 5 — AARP; National Conf. of State Legis. et al.; Public Justice, P.C.; American Ass’n for Justice; Kansas et al.;
   On business side: 6 — Chamber of Commerce; Generic Pharmaceutical Ass’n; U.S.; Washington Legal Found.; Product Liability Advisory Council; Pharmaceutical Research & Mfrs. of Am.
2. Riegel v. Medtronic (2008)
   On Public Citizen’s side: 6 — Sen. Kennedy & Rep. Waxman; AARP et al.; Consumers Union; Many States; Public Health Advocacy Inst. et al.; American Ass’n for Justice et al.
   On the business’s side: 6 — Chamber of Commerce; Advanced Medical Tech. Ass’n et al.; Product Liability Advisory Council; Washington Legal Foundation; Croplife America et al.; U.S.
3. Safeco Ins. Co. v. Burr (2007)
   On Public Citizen’s side: 3 — Many States; Nat’l Consumer Law Center et al.; Many Insurance Commissioners.
   On business side: 12 — Mortgage Ins. Cos. et al.; Farmers Ins. Co. et al.; Ford Motor Co.; U.S.; Nat’l Ass’n of Mutual Ins. Cos.; Property Casualty Ins. Ass’n; American Ins. Ass’n; Financial Servs. Roundtable et al.; Freedomworks Found.; Consumer Data Industry Ass’n; Washington Legal Found.; Trans Union.
4. Koons Buick Pontiac GMC v. Nigh (2004)
   On Public Citizen’s side: 2 — Nat’l Ass’n of Consumer Advocates et al.; Commercial Law League.
   On business side: 3 — American Bankers Ass’n; Michigan Bankers Ass’n; Virginia Automobile Dealers’ Ass’n.
5. Department of Transportation v. Public Citizen (2004)
   On Public Citizen’s side: 5 — American Public Health Ass’n et al.; South Cost Air Quality Management Dist.; Many States; Defenders of Wildlife et al.; Eagle Forum;
   On Department’s side, which is pro-business: 0.

So, unless I'm mistaken, one case — Safeco — fits Vladeck's description, and the remainder do not. Maybe I omitted some case, and maybe I should have omitted Department of Transportation. But unless the SCT-BRIEF database in Westlaw is wildly and systematically inaccurate, the numbers I found (even if they need to be amended in some measure) just don't bear out Vladeck's characterization.

Now Vladeck might have been recalling cases from over a decade ago, and assuming that the pattern continued as before (his assertion, recall, is about what the fight is, not what it was). Or he might have felt outnumbered because of the higher quality of the pro-business briefs (a matter I didn't investigate, but he may well be right about it) and therefore the difference might have lodged in his head as being one of quantity rather than just quality. Or he might have focused more on hostile briefs than friendly briefs at the time, and thus underestimated the number of friendly briefs in retrospect. Or perhaps he remembered right, and Rosen misunderstood some important qualifiers Vladeck mentioned, and thus quoted Vladeck out of context.

I'm sure both Rosen and Vladeck were sincerely trying to get this right. Nonetheless, unless I'm missing something big, the quote that Rosen gives — and that Rosen seems to be conveying as a true statement — is mistaken. (Rosen does start by saying this is what "the progressive antagonists of big business are understandably feeling," but in context it seems clear that he's reporting their statement of the facts as actual fact, and not just as their incorrect view.)

So the bottom line: Even experienced, thoughtful, scholarly sources can get the facts pretty badly wrong. When the facts are available to you (and here this is just a matter of a few Westlaw queries), it's better to check those facts yourself.

UPDATE: Some readers suggested that I misread Vladeck as speaking about Public Citizen lawsuits specifically, and that he was instead using "us" to mean "progressive antagonists of big business" and not "Public Citizen." This is quite possible, since he's no longer officially affiliated with Public Citizen. I read "us" to cover the group with which Vladeck had long been involved, and with which he presumably still maintains personal and emotional ties, but I might well have been mistaken.

Still, the Public Citizen cases I cited strike me as a reasonable stand-in for cases involving "progressive antagonists of big business"; and they suggest that such progressives do get lots of amicus briefs in their cases against big business, contrary to Vladeck's assertion. I also saw the same pattern when I went through 2007 and 2008 cases that seem to fit the progressive-vs.-big-business mold (setting aside employment law cases, which to my knowledge tend to involve a different sort of litigation dynamic; see, e.g., Fed Ex v. Holowecki (2008), 2 briefs for the employee and 2 for the employer):

1. Watson v. Philip Morris (2007) had 4 for business and 5 on the consumer side (counting on business's side two briefs that were ostensibly for neither party, but that focused on a procedural issue in a way that I imagine would usually benefit business).
2. Bell Atlantic v. Twombly (2007) had 8 for business and 2 for the consumers.
3. Environmental Defense v. Duke Energy (2007) had 11 for business and 9 for the environmental group.
4. Philip Morris v. Williams (2007) had 12 for business and 12 for the consumers.

So the bottom line, it seems to me, is that whether one focuses on Public Citizen's cases or includes other recent "progressive antagonists of big business" cases, one does not see the general pattern that Vladeck describes. A few cases do fit that mold, of course (Bell Atlantic and Safeco), but not the bulk of the cases I analyzed. If someone has more comprehensive data, please let me know — but so far Vladeck's assertion seems to be mistaken.

FURTHER UPDATE: California Punitive Damages (subtitled, "An Exemplary Blog," for a little bit of tort law humor) points to the now-pending Exxon Valdez punitive damages case, which generated 7 briefs for the business side and 16 briefs for the other side. (And, yes, I checked the numbers myself.)

The New York Times covers this in an interesting article (which quotes and links to this post of mine on the subject). I'm inclined to agree with Rod Smolla that the law is likely constitutional; and this argument from Ron Collins doesn't seem to me to work:

“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol [the flag],” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”

The law here doesn't bar speech that lacks proper reverence — it bars false statements of fact (and should reasonably be interpreted as barring only knowingly or recklessly false statements of fact), and the Court has held that false statements of fact generally lacks constitutional value. Nonetheless, as I argued in my earlier post, the caselaw is not entirely clear on this.

UPDATE: Surreal typo in title ("medical of honor" instead of "medal of honor") fixed. D'oh! Must have seemed pretty confusing at first glance.

I'm very hesitant to draw inferences from oral argument, but this time I can't help it. Here's Lyle Denniston on SCOTUSblog:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.

"With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him -- once more -- the holder of the deciding vote."

The Tenth Circuit just reversed the insider trading conviction of Joseph Nacchio, former CEO of Qwest. (Congratulations to my Mayer Brown colleague Andy Schapiro, who cofiled an amicus brief on behalf of the National Association of Criminal Defense Lawyers supporting reversal.)

The reversal stemmed from the trial judge's exclusion of economic expert evidence. Among other things, the trial judge concluded that the evidence would "invit[e] the jurors to abandon their own common sense and common experience and succumb to this expert's credential." The panel majority responded:

While economic analysis sometimes asks jurors to "abandon their own common sense," App. 3920, that is not a reason to deem expert testimony inadmissible. Armchair economics is not the way to decide complex securities cases.

Absolutely right.

A friendly e-mail I saw wishing that Alan Gura — the lawyer arguing D.C. v. Heller on Heller's side — "break a leg" reminded me of a similar Russian phrase, which my family always used to wish me luck: "Ни пуха, ни пера," pronounced "Nee pookha, nee piera," which literally means "Neither down nor feathers."

The explanation I heard was that it was considered bad luck to wish for good luck, so you'd wish for bad luck instead; and when a hunter went hunting for fowl, back luck would be if he came back with no birds (hence the absence of down and feathers). I've also seen the claim that hunters used "pookh" to refer to fur rather than down, so that the hunter would get a wish that he come back with neither mammals nor birds, a plausible explanation but not one my grandmother told me.

The response was also a formula: "К чёрту," which literally means "to the devil," which is to say "go to hell." So, Alan, Ни пуха, ни пера.

It will be at scotusblog.com, and I expect a lot of great stuff. For more details, see here.

I often see these sorts of statistics that purport to show that some fraction of the X's are disproportionately prone to event Y. One paper I read, for instance, reported that 10% of all police officers in a department account for 25% of all abuse complaints, and used that as evidence for the proposition that some police officers are especially prone to misbehavior. One can imagine similar claims when, say, 10% of all holes on a golf course account for 25% of all hole-in-ones, or 10% of all slot machines account for 25% of all jackpots, and so on.

The trouble is that this data point, standing alone, is entirely consistent with the X's being equally prone to Y. Even if, for instance, all the holes on a golf course are equally difficult (or all the police officers equally prone to abuse complaints), and hole-in-ones (or complaints) are entirely randomly distributed across all holes (or officers), one can easily see the 10%/25% distribution, or 20%/80% distribution, or whatever else.

Consider a boundary case: Say that each police officer has a 10% chance of having a complaint this year. Then, on average 10% of all officers will have 100% of this year's complaints. Likewise, say that each police officer has a 1% chance of having a complaint each year for 10 years, and the probabilities are independent from year to year (since complaints are entirely random, and all the officers are equally prone to them). Then, on average 9.5% (1 - 0.99^10) of all police officers will have 100% of the complaints over the 10 years, since 0.99^10 of the officers will have no complaints.

Or consider a less boundary case, where the math is still easily intuitive. Say that you have 100 honest coins, each 50% likely to turn up heads and tails. You toss each coin twice. On average,

• 25 of the coins will come up heads twice, accounting for 50 heads.

• 50 of the coins will come up heads once and tails once, accounting for 50 heads.

• 25 of the coins will come up tails twice, accounting for no heads.

This means that 25% of the coins account for 50% of the heads — but because of randomness, not because some particular coins are more likely to turn up heads than others.

Likewise, we see the same in slightly more complicated models. Say that each police officer has a 10% chance of having a complaint each year, and we're looking at results over 10 years. Then 7% of all officers will have 3 or more complaints (that's SUM (10-choose-i x 0.1^i x 0.9^(10-i)) as i goes from 3 to 10). But those 7% will account for 22.5% of all complaints (that's SUM (10-choose-i x 0.1^i x 0.9^(10-i) x i) as i goes from 3 to 10). And again this is so even though each officer is equally likely to get a complaint in any year.

Now of course it seems very likely that in fact some officers are more prone to complaints than others. My point is simply that this conclusion can't flow from our observation of the 10%/25% disparity, or 7%/22.5% disparity, or even a 20%/80% disparity. We can reasonably believe it for other reasons (such as our knowledge of human nature), but not because of that disparity, because that disparity is entirely consistent with a model in which all officers are equally prone to complaints.

If you have more data, that data can indeed support the disproportionate-propensity conclusion. For instance if nearly the same group of officers lead the complaint tallies each year (or nearly the same group of slot machines leads the payouts two months running), that's generally not consistent with the random model I describe. Likewise, if you have more statistics of some other sort — for instance, if you know what the complaint rate per officer is, and can look at that together with the "X% of all officers yield Y% of the complaints" numbers — that too could be inconsistent with a random distribution.

But often we hear just a "10% of all X's account for 25% of all Y's" report, or some such, and are asked to infer from there that those 10% have a disproportionate propensity to Y. And that inference is not sound, because these numbers can easily be reached even if everyone's propensity is equal.

UPDATE: (1) Some commenters suggested this phenomenon "depends on the sample size; if the sample size is large enough, the inference is sound." That's not quite right, I think.

The sample size in the sense of the number of police officers / golf holes / coins does not affect the result. I could give my coin example, where 25% of all coins yield 50% of all heads, with a million tosses.

The sample size in the sense of the number of intervals during which an event can happen (e.g., the length of time the officers are on the force, if in the model there's a certain probability of a complaint each year) does affect the result. But if the probability per interval is low enough, we can see this result even when there are many intervals.

Say, for instance, that there's a 1% chance of a complaint per month for each officer, and we look at 240 months (representing an average police career of 20 years). Then even when all officers have precisely the same propensity to draw a complaint, 9.5% of all officers would have 5 or more complaints, and would account for over 21.5% of all complaints. So a 9.5%/21.5% split would be consistent with all officers having an identical propensity to generate complaints, even with a "sample size" of 240 intervals. If the monthly complaint probability was 0.005, then 12% of all officers would account for over 33% of all complaints.

(2) More broadly, this isn't a matter of "sample size" in the sense that we'd use the term when discussing significance testing, and talking about "statistical significance" wouldn't be that helpful, I think. If you have a lot of data points, you can determine whether some difference between two sets of results over those data points is statistically significant. But here I'm talking about people's drawing inferences from one piece of (aggregated) data -- 10% of all X's account for 25% of all Y's. Statistical significance testing is not apt here.

Paul Caron (TaxProf Blog) passes along some very amusing videos from GW.