Saturday, April 12, 2008

Some Wisdom on the Housing Situation:

Boston Globe:

Owning a home in Boston is about 70 percent more expensive than renting an essentially identical home. Therefore the government should stop trying to keep owners in homes and instead let more people return to renting. Those families could spend the extra money on other needs…says a new study from the National Low Income Housing Coalition. The study joins a growing chorus making the point that home ownership is a misnomer in many cases. Many 'homeowners' are people with little equity, no equity or even negative equity who are basically making monthly rental payments to a mortgage company.

The group argues there is little long-term benefit to ownership because prices in cities including Boston likely will continue to decline…And even if they could, they’d be better off paying half as much and investing the difference in stocks.

Much of the "foreclosure crisis" involves homes purchased with no-money-down loans from which owners are walking away now that they have negative equity. [Not to mention long-time homeowners who cash-out refinanced regularly, ensuring that they never built any equity; I've read of individuals who have spent literally tens or even hundreds of thousands of dollars they received from refinances, and now want a bailout because they can't afford a few hundred dollars a month increase in their mortgage payment resulting from their last refinance into an ARM.] There is no more reason to consider such cases part of a social crisis than if the same individuals has leased apartments well beyond their means and have now been evicted.

On the other hand, some victims of the housing bubble are unlikely to get any government help. I know a woman who works as a cleaning lady, her husband as a maintenance man. They are immigrants who speak little English. They nevertheless managed to save 50K for a down payment on a townhouse, which they bought in the outer D.C. suburbs at the peak of the market in July 2005. That 50K in equity, and perhaps a bit more, has been wiped out as prices return to historically normal levels. Unlike those who put no money down, they can't just walk away, and unlike many others, they didn't buy beyond their means, so they aren't in foreclosure, but have seen their life savings evaporate. Sure, they didn't have to buy when they did, but they are certainly in a sense victims of the bubble, caused by the irresponsible lending and borrowing practices of others. If anyone is going to get bailed out by Congress, I would like it to be people like them [update: though, to be sure, I'd rather Congress stay out of it completely).


"Don't Get Me Started on the Gadsden Purchase":

I bet you didn't expect that in a vodka company press release. Thanks to InstaPundit for the pointer.


Now That's An Ambitious Campaign Plank:

The New York Times reports:

"We'll start by setting a bold goal," Clinton said at a YMCA community center in the tough neighborhood of West Philadelphia. "We'll start by focusing on cities with high homicide rates and we will cut those rates in half."

The Times paraphrases the plan this way: "The centerpiece of Clinton's proposal is a goal of halving homicide rates in cities. It includes adding 100,000 new police recruits, targeting gang violence and disrupting drug markets, and a federal initiative to tackle illegal gun trafficking."

Huh -- halving homicide rates over five years, even in "cities with high homicide rates," seems a pretty challenging task, and rather beyond what can be plausibly planned for, even as a "bold goal" (much as I would love to see such a goal reached). But perhaps I'm mistaken; I'd love to hear more from people who know about such things.


Obama in San Francisco on Pennsylvanians:

The original audio is here; here's the transcript, with the key passage emphasized:

So, it depends on where you are, but I think it's fair to say that the places where we are going to have to do the most work are the places where people feel most cynical about government. The people are mis-appre ... I think they're misunderstanding why the demographics in our, in this contest have broken out as they are. Because everybody just ascribes it to 'white working-class don't wanna work -- don't wanna vote for the black guy.' That's ... there were intimations of that in an article in the Sunday New York Times today -- kind of implies that it's sort of a race thing.

Here's how it is: in a lot of these communities in big industrial states like Ohio and Pennsylvania, people have been beaten down so long, and they feel so betrayed by government, and when they hear a pitch that is premised on not being cynical about government, then a part of them just doesn't buy it. And when it's delivered by -- it's true that when it's delivered by a 46-year-old black man named Barack Obama (laugher), then that adds another layer of skepticism (laughter).

But -- so the questions you're most likely to get about me, 'Well, what is this guy going to do for me? What's the concrete thing?' What they wanna hear is -- so, we'll give you talking points about what we're proposing -- close tax loopholes, roll back, you know, the tax cuts for the top 1 percent. Obama's gonna give tax breaks to middle-class folks and we're gonna provide health care for every American. So we'll go down a series of talking points.

But the truth is, is that, our challenge is to get people persuaded that we can make progress when there's not evidence of that in their daily lives. You go into some of these small towns in Pennsylvania, and like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing's replaced them. And they fell through the Clinton administration, and the Bush administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not. So it's not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.

Um, now these are in some communities, you know. I think what you'll find is, is that people of every background -- there are gonna be a mix of people, you can go in the toughest neighborhoods, you know working-class lunch-pail folks, you'll find Obama enthusiasts. And you can go into places where you think I'd be very strong and people will just be skeptical. The important thing is that you show up and you're doing what you're doing.

A key political question at this point, I suppose, is whether the audio will be cleaned up well enough to be effectively played over the air again and again by Obama's critics in the run-up to the Pennsylvania primary, which is a week from Tuesday.

Here, by the way, is a transcript of his response to his critics (here's the href="">YouTube version) (relevant passage emphasized):

When I go around and I talk to people there is frustration and there is anger and there is bitterness. And what’s worse is when people are expressing their anger then politicians try to say what are you angry about? This just happened – I want to make a point here today.

I was in San Francisco talking to a group at a fundraiser and somebody asked how’re you going to get votes in Pennsylvania? What’s going on there? We hear that’s its hard for some working class people to get behind you’re campaign. I said, “Well look, they’re frustrated and for good reason. Because for the last 25 years they’ve seen jobs shipped overseas. They’ve seen their economies collapse. They have lost their jobs. They have lost their pensions. They have lost their healthcare.

And for 25, 30 years Democrats and Republicans have come before them and said we’re going to make your community better. We’re going to make it right and nothing ever happens. And of course they’re bitter. Of course they’re frustrated. You would be too. In fact many of you are. Because the same thing has happened here in Indiana. The same thing happened across the border in Decatur. The same thing has happened all across the country. Nobody is looking out for you. Nobody is thinking about you. And so people end up -- they don’t vote on economic issues because they don’t expect anybody’s going to help them. So people end up, you know, voting on issues like guns, and are they going to have the right to bear arms. They vote on issues like gay marriage. And they take refuge in their faith and their community and their families and things they can count on. But they don’t believe they can count on Washington. So I made this statement -- so, here’s what rich. Senator Clinton says ‘No, I don’t think that people are bitter in Pennsylvania. You know, I think Barack’s being condescending.’ John McCain says, ‘Oh, how could he say that? How could he say people are bitter? You know, he’s obviously out of touch with people.’

Out of touch? Out of touch? I mean, John McCain -— it took him three tries to finally figure out that the home foreclosure crisis was a problem and to come up with a plan for it, and he’s saying I’m out of touch? Senator Clinton voted for a credit card-sponsored bankruptcy bill that made it harder for people to get out of debt after taking money from the financial services companies, and she says I’m out of touch? No, I’m in touch. I know exactly what’s going on. I know what’s going on in Pennsylvania. I know what’s going on in Indiana. I know what’s going on in Illinois. People are fed-up. They’re angry and they’re frustrated and they’re bitter. And they want to see a change in Washington and that’s why I’m running for President of the United States of America.

Does this go far to explaining the original statement, both its part about "they cling to guns or religion ... as a way to explain their frustrations" and the part about "or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment"? My sense is that it doesn't, but I'd love to hear your views.

Thanks to InstaPundit for the pointers.


Friday, April 11, 2008

Associate Justice Reinhardt?: Senator Barack Obama, on the qualities he would look for in a potential Supreme Court Justice if he is elected President:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.
Ninth Circuit Judge Stephen Reinhardt, on the qualities of a good judge:
[I]n my view they include compassion, sensitivity, empathy for others, and a commitment to the pursuit of justice.

Reinhardt on Posner: In the Michigan Law Review, Ninth Circuit Judge Stephen Reinhardt has a book review of Seventh Circuit Judge Richard Posner's recent book Not a Suicide Pact. It has lots of interesting tidbits and asides on what Reinhardt thinks of Posner more generally. For example, here is Reinhardt's take on Posner's widely-read book review in the New Republic of Aharon Barak's book on judging:
My quarrel is unfortunately with Posner’s conclusions and, more particularly, his judgment. To use his words, I admire his skills as a “technician” but not as a “policy maker” (p. 19). Recently, for example, he wrote a review of a book by the world’s leading jurist, Aharon Barak, the former president of the Israeli Supreme Court who teaches with some regularity in his spare time at Yale Law School. Posner ends the review with the incredible statement, “No wonder he frightens Robert Bork.” Talk of bad taste, let alone bad judgment. It would be tough to match. Bork is a bitter figure still licking his wounds from his public rejection. Barak is a giant in the law, admired throughout the world. Shame on Posner!
This passage at the end is also interesting:
  Th[e fact that judges act as policymakers] is why the battle over the appointment of members of the Court is so critical and why the Democrats—belatedly, and possibly too late—may finally be awakening to the importance of the Supreme Court confirmation process, something that the right wing well understood many years earlier.
  I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come. I would even feel more comfortable with a Richard Posner making such decisions than a George W. Bush—but not by much.

The "Progressive" Case for Water Markets:

As part of its symposium on "What's Next? The New Progressive Agenda," the webzine Democracy: A Journal of Ideas includes "tradable water rights" among the "progressive" ideas our nation's leaders should adopt. In a short essay, MIT environmental economist Michael Greenstone explains how tradable water rights could help overcome water allocation and scarcity problems, particularly in the West. According to Greenstone:

There are clear gains from having an active market in water rights. It would help solve the problems posed by current water shortages in the West, and it would provide the flexibility necessary to confront the impact of climate change on water supplies in the coming decades. It would be, in a word, fluid.

In his view, the federal government should take three steps to facilitate the development of water markets:

First, the restrictions that prevent the trading of water rights across state lines should be removed. The median price for a one-year lease of an acre-foot of water in Colorado is 10 times the median price in Utah. Additionally, as much as possible, other restrictions on trades and the requirement that all trades be reviewed by bureaucrats should be removed.

Second, property rights for water must be clarified. The practice of usufruct rights, in which the state holds all water "in the public trust," with the ability to retract or reassign rights, should be eliminated. The uncertainty caused by these policies prevents beneficial investments from being made.

Third, federal and/or state governments can reduce transaction costs in several ways. They could, for example, set up a monitoring system to determine withdrawals from the Colorado River and other important water sources. Moreover, the government could help fund a centralized market for trades if one doesn’t develop in the private market naturally. Finally, government involvement would likely be necessary to construct water transportation systems that aid trading or to clear the legal hurdles to developing these systems.

The case for water markets is particularly urgent when one considers the potential consequences of climate change, so it is promising to see water markets embraced as part of a "progressive" agenda.

Related Posts (on one page):

  1. The "Progressive" Case for Water Markets:
  2. Climate Change and Water:

Why Biofuels (like Ethanol) Are Bad for Birds:

The NYT reports what many of us have been predicting:

Thousands of farmers are taking their fields out of the government’s biggest conservation program, which pays them not to cultivate. They are spurning guaranteed annual payments for a chance to cash in on the boom in wheat, soybeans, corn and other crops. Last fall, they took back as many acres as are in Rhode Island and Delaware combined.

Environmental and hunting groups are warning that years of progress could soon be lost, particularly with the native prairie in the Upper Midwest. But a broad coalition of baking, poultry, snack food, ethanol and livestock groups say bigger harvests are a more important priority than habitats for waterfowl and other wildlife. They want the government to ease restrictions on the preserved land, which would encourage many more farmers to think beyond conservation. . . .

Last fall, when five million acres in Conservation Reserve came up for renewal, only half of them were re-entered. While the program has gained some high-priority land in the last few months, in part from an initiative to restore bobwhite quail habitats, the net loss is still more than two million acres.

That is just the beginning, warns Ducks Unlimited, a politically potent organization with more than half a million members in the United States. Ducks Unlimited is concerned about the three-quarters of a million acres of grassland that were removed from the program last year in the so-called duck factory in the Upper Midwest.

“We foresee a dramatic reduction,” said Mr. Ringelman, a conservation director for the association.

Incentive programs to encourage for voluntary conservation on private land have been a bargain, particularly when compared to various regulatory and non-regulatory alternatives. (A point I discuss in the latter sections of this paper.) It doesn't take much to convince many landowners to make small alterations in their land practices for the benefit of wildlife. Yet with the ethanol driven rise in commodity prices, many farmers now find that the opportunity costs of dong the green thing are too high. So they put more of their land under plow, and wildlife suffers as a result.


Debunking the Climate-Disease Connection:

There are many legitimate reasons to be concerned about climate change (such as its likely effects on water supplies. The potential of a warmer world to spread insect-borne diseases is not one of them, however. Given current technology, climate is a relatively insignificant factor in the distribution of malaria and other such ailments around the world. As Paul Reiter and Roger Bate explain, those who wish to combat malaria and other insect-borne diseases have better things to worry about than climate change.

It may come as a surprise that malaria was once common in most of Europe and North America. In parts of England, mortality from "the ague" was comparable to that in sub-Saharan Africa today. William Shakespeare was born at the start of the especially cold period that climatologists call the "Little Ice Age," yet he was aware enough of the ravages of the disease to mention it in eight of his plays.

Malaria disappeared from much of Western Europe during the second half of the 19th century. Changes in agriculture, living conditions and a drop in the price of quinine, a cure still used today, all helped eradicate it. However, in some regions it persisted until the insecticide DDT wiped it out. Temperate Holland was not certified malaria-free by the WHO until 1970.

The concept of malaria as a "tropical" infection is nonsense. It is a disease of the poor. Alarmists in the richest countries peddle the notion that the increase in malaria in poor countries is due to global warming and that this will eventually cause malaria to spread to areas that were "previously malaria free." That's a misrepresentation of the facts and disingenuous when packaged with opposition to the cheapest and best insecticide to combat malaria – DDT.

It is true that malaria has been increasing at an alarming rate in parts of Africa and elsewhere in the world. Scientists ascribe this increase to many factors, including population growth, deforestation, rice cultivation in previously uncultivated upland marshes, clustering of populations around these marshes, and large numbers of people who have fled their homes because of civil strife. The evolution of drug-resistant parasites and insecticide-resistant mosquitoes, and the cessation of mosquito-control operations are also factors.

Of course, temperature is a factor in the transmission of mosquito-borne diseases, and future incidence may be affected if the world's climate continues to warm. But throughout history the most critical factors in the spread or eradication of disease has been human behavior (shifting population centers, changing farming methods and the like) and living standards. Poverty has been and remains the world's greatest killer.

In other words, those concerned with disease control in the developing world should devote their energies to increasing wealth and distributing available medical technologies, rather than cooling the earth.


JuicyCampus Lawyer Responds About the New Jersey Attorney General's Investigation:

For background, see here. Here's a response from a friend of mine, an experienced lawyer whose judgment I trust:

As it happens, I'm the lawyer who drafted Juicy Campus's terms and conditions, and who is representing Juicy Campus in connection with the New Jersey subpoena (along with local counsel in New Jersey). I was in trial the last week of March (on an unrelated matter) or I would have weighed in sooner.

Juicy Campus's Terms and Conditions simply do not say that Juicy Campus will delete offensive posts. To the contrary, the Terms and Conditions expressly provide:

6. No Pre-Screening or Regular Screening of Content.

You acknowledge that JuicyCampus does not pre-screen Content, but agree that JuicyCampus shall have the right (but not the obligation) to access, re-arrange, modify and remove or restrict access to any Content on the Site in its sole discretion and without notice or compensation. Without limiting the foregoing, JuicyCampus shall have the right to access and remove or restrict access to any Content that violates this Agreement or that JuicyCampus believes is otherwise objectionable, in its sole discretion.

The Attorney General's office is basing its investigation on the theory that because Juicy Campus requires its users to agree that they will not post anything defamatory, Juicy Campus is therefore obligated to delete posts that are alleged to be defamatory by third parties. In particular, the AG seems focused on paragraph 7 of the Terms and Conditions, which provides:

7. User Conduct.

You agree to not use the Site to:

(a) violate or solicit the violation of any applicable local, state, national or international law;
(b) infringe the rights of any third party, including but not limited to intellectual property rights and privacy or publicity rights;
(c) upload, post, email or otherwise transmit any Content that:
(1) is unlawful, threatening, abusive, tortious, defamatory, obscene, libelous, or invasive of another's privacy;
... If you use the Site to commit any of the above offenses, JuicyCampus may, at its sole discretion ... remove any Content you posted to the Site.

No one could reasonably interpret such language to impose on Juicy Campus any obligation to delete posts.

Even were there some representation that Juicy Campus would delete posts from the Site (which there emphatically is not), the AG's investigation for violation of New Jersey's consumer fraud statute would be baseless. The New Jersey Consumer Fraud Act prohibits, inter alia, "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation ... in connection with the sale or advertisement of any merchandise ..." (emphasis added). Juicy Campus does not charge users to post on site or read the site, and does not sell any merchandise on the site. Juicy Campus does, however, serve third-party advertising. It seems self-evident that one who clicks on a banner ad does not do so in reliance on any representation in the Terms and Conditions, but according to Assistant Attorney General James Savage, the fact that sells advertising to third parties is enough to support a finding of fraud if users (even those who never clicked on any advertisement) were misled by its Terms and Conditions into thinking that it would delete offensive posts.

If this is the law in New Jersey, I'm moving there tomorrow to hang out my shingle. It seems to allow one who is neither a party to a contract nor an intended beneficiary of that contract to allege that one has been defrauded by the manner of the contracting parties' performance, without having sustained any damage as a result. I would start by suing all the lenders who have the right to foreclose on late-paying borrowers but are refraining from doing so, on the theory that their failure to enforce the borrowers' payment obligation defrauds me. I would then sue every bank in New Jersey that had ever waived an overdraft charge, since I believe their agreements with their customers allow them to collect such charges. The absurdity of the Attorney General's position is underscored by the sheer inanity of some of the interrogatories in the subpoena (my favorite: "What does the Company mean by the term 'beta' as it is currently used on the website").

Paul Mulshine of got it right: it's grandstanding. Richard Blumenthal, the Attorney General of Connecticut, has now chimed in with a letter asking for information similar to that sought by the New Jersey subpoena. I'll keep you posted as things develop.

Related Posts (on one page):

  1. JuicyCampus Lawyer Responds About the New Jersey Attorney General's Investigation:
  2. More on New Jersey Attorney General's Investigation of
  3. Misrepresentation by JuicyCampus?

Thursday, April 10, 2008

If Learned Hand Had Spent Time in the Blogosphere: If Learned Hand were alive today and spent a lot of time reading blog comment threads, I think his famous address "The Spirit of Liberty" probably would have gone something like this:
What then is the spirit of liberty? Only a complete and utter moron would pretend they can't define it. The spirit of liberty is the spirit that recognizes I am obviously right. The spirit of liberty is the spirit that sees I know so much more than other men and women; the spirit of liberty is the spirit which recognizes that only people who agree with me are without bias; the spirit of liberty sees that a sparrow falls to earth because some idiot killed it. Duh.
For the original, see here.

Cyber-Slapp Against

James Taranto reports on a plaintiffs lawyer's effort to stifle voices skeptical of a vaccine-autism link. (LvIP).

UPDATE: Walter Olson has more here, here, and here.

Related Posts (on one page):

  1. Anti-Vaccine Cyber-SLAPP Update:
  2. Cyber-Slapp Against

Obama Lies About His Church's Honor to Farrakhan:

Jake Tapper:

In Levittown, Penn., today, Sen. Barack Obama, D-Illinois, was asked about his church's magazine giving an award to Rev. Louis Farrakhan. "This was done by a magazine that was connected to the church," Obama explained. "I would have never done it. It was primary focused on the rehabilitation work that they do for ex-offenders in Chicago. That doesn't excuse it, that just explains it."

The first time Obama said this, I could believe he was misinformed [update: indeed, the first time he said this, he only said he "assumed" this was the reason]. The second time, perhaps that he was caught offguard and didn't have his story straight. Now, I can only conclude that he is intentionally choosing to blatantly lie about this, hoping that no one will notice and call him on it.

Let's recall the facts: The magazine explicitly explained in the video it prepared for the banquet at which Farrakhan was honored that it was honoring Farrakhan for his purported dedication "truth, education, and leadership." [Surprise, surprise, the video seems to have been pulled from YouTube.] Obama spiritual mentor Rev. Wright, meanwhile praised Farrakhan in the magazine for his "astounding and eyeopening" analysis of the "racial ills of this nation," a "perspective" that is "helpful and honest." I even got ahold of the interview the magazine did with Farrakhan. No mention was made in any of these sources of "rehabilitation work for ex-offenders."

UPDATE: It's odd that Obama's initial "assumption" has morphed into a statement of fact. He made up that assumption, which was not an entirely unreasonable one, and then either (at best) failed to check it out but decided to repeat this assumption as truth with no supporting evidence, or decided to just go with a lie when he found out the truth. Given the significance of the Wright controversy, I find it hard to believe that none of his aides has investigated the Farrakhan award, which would take approximately five minutes to research, so I'm still inclined to go with the latter explanation, though the former one hardly casts him in a great light, either.


Is Genocide Worse than Other Mass Murder Because it Targets People Based on "Immutable" Characteristics?

Some commenters on my earlier post arguing that international law should not consider genocide a more severe crime than other types of mass murder argue that genocide is worse because it targets victims based on immutable characteristics, such as race and ethnicity. This is a common argument. But I don't think it works.

First, the current international law definition of genocide is not in fact limited to immutable characteristics. It includes targeting of victims based on religion, which is most certainly not immutable.

Second, and far more important, many mass murders that are not genocide under current international law also target people based on immutable characteristics. For example, communist regimes routinely target people based on their economic class origins. Obviously, you can't do anything to change the fact that your parents were "bourgeois" or "kulaks."

Even in the case of targeting based on characteristics that can be changed, it is often too late to change them at the time the mass murder occurs. For example, my great-grandfather was arrested by the NKVD (as the KGB was then called) in the 1930s for having attended speeches by Leon Trotsky years before. At the time he went to the speeches, such attendance was not only legal but actually encouraged by the communist government, since Trotsky was a high-ranking Party leader. Years later (after Stalin had his rival Trotsky exiled and executed his most prominent supporters), such attendance became a crime punishable by a term in a Gulag (which often resulted in death). There was no way that my great-grandfather could have foreseen this at the time he decided to attend Trotsky's speeches. Fortunately, he was able to persuade the NKVD investigator that he really hadn't attended the speeches in question (although he actually had been present). A great many others were not so lucky.

Finally, even if the current definition of genocide really did capture a neat divide between mutable and immutable characteristics, I don't see why the mutable-immutable distinction should carry any moral weight. Killing a person because of his political affiliations wrong; so is killing a person because of his race or ethnicity. I don't see why the latter is somehow more wrong than the former merely because political affiliations can be changed and racial ones can't. The key question, it seems to me, is whether the killers are justified in demanding such a change as the price of allowing their victim to live. If not, their actions are just as reprehensible as murder based on characteristics that the victim can't change. If future technological developments allow people to rewrite their DNA and thereby change their race, would racially-based mass murder become less reprehensible than it is today? I think not.


"Freedom of Speech Is an American Concept, So I Don't Give It Any Value":

I'd heard of this quote from a Canadian Human Rights Commission investigator, but I wanted to see the hearing transcript for myself just to confirm that it's not being misquoted or quoted out of context. I just got the surrounding pages (available here; see PDF page 43 for the quote), and here it is:

MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?

MR. STEACY: Freedom of speech is an American concept, so I don't give it any value.

MS KULASZKA: Okay. That was a clear answer.

MR. STEACY: It's not my job to give value to an American concept.

Later on, Steacy does get a bit less clear:

MS KULASZKA: So if someone claims freedom of speech for what they said, it is rejected out of hand?

MR. STEACY: If somebody is claiming freedom of expression, it is not rejected. As I said, freedom of speech is an American concept, it is not a Canadian concept. If somebody said, "I am doing this because of freedom of speech," I would equate that to somebody raising a freedom of expression concept.

So freedom of speech is equated to freedom of expression, which is not rejected, but freedom of speech isn't valued because it's an American concept — hard to tell what he means. But however one reconciles the logic here, and whatever the extent to which free expression is indeed "not rejected," Mr. Steacy's rhetoric is still striking: "Freedom of speech is an American concept, so I don't give it any value."


Statistics on the Race of Persons Convicted of Federal Crimes in 2007: In 2007, about 72,000 persons were convicted of federal crimes. Here's the breakdown of the defendants by race in the 95% or so of those cases in which the defendant's race was recorded:
White -- 28.8%
Black -- 24.4%
Hispanic -- 43%
Other -- 4.1%
  (Source: 2007 Sourcebook of Federal Sentencing Statistics, page 14.)

  The same source includes a breakdown of defendants by race for different types of crimes that sheds light on these numbers. About a third of the defendants were convicted of drug cases, almost all for trafficking, and the racial breakdown of the defendants in drug trafficking cases roughly resembled that of the overall group:
White -- 24.2%
Black -- 28.5%
Hispanic -- 43.8%
Other -- 3.5%
  In contrast, other types of crimes had a racial breakdown quite different than the whole. For example, the racial breakdown of defendants in fraud cases, about 10% of the group, was much whiter and much less hispanic than the rest:
White -- 47%
Black -- 31.5%
Hispanic -- 16.5%
Other -- 5.0%
  Firearms cases, about 12% of the whole, were much more heavily black:
White -- 32.5%
Black -- 48.3%
Hispanic -- 16.3%
Other -- 2.9%
  The fact that the largest group on the whole was hispanic largely resulted from immigration offenses, which constituted about 20% of the overall set. Defendants in immigration cases in 2007 were overwhelmingly hispanic:
White -- 7.1%
Black -- 2.7%
Hispanic -- 89.1%
Other -- 1.2%
  What was the 'whitest' offense category with at least 1,000 prosecutions in 2007? That would be pornography/prostitution, the primary offense of about 1,400 defendants. Altogether, about 84% of the defendants convicted of those offenses are white.

Starbucks Now Accepts "Laissez Faire":

Since the publication of David Boaz's op-ed, several readers have tried ordering their own personalized Starbucks cards emblazoned with "laissez faire." Whatever Starbucks' policy was before, they now allow such cards, as at least one VC reader received his "Laissez Faire" Starbucks card in the mail today. I'll post the picture once I figure out how to do it.

UPDATE: If I'm doing this correctly, here's the picture of a "Laissez Faire" Starbucks card.

David Boaz also has more here. As he notes: "In this case the market worked, 'Laissez Faire' cards are fully acceptable, and my Starbucks-addicted colleagues can breathe easy again."

Related Posts (on one page):

  1. Starbucks Now Accepts "Laissez Faire":
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The Fourth Amendment and "Domestic Military Operations": There has been a lot of press attention recently on references in the John Yoo torture memo to another classified OLC memo apparently concluding that the Fourth Amendment does not apply to "domestic military operations." For background, see here and here .

  What to make of this depends mostly on what you think the phrase "domestic military operations" might mean, and more specifically, what "military operations" are. If "domestic military operations" refers to actual active battlefields in the United States -- think the Battle of Gettysburg, or the British attack on Washington in the War of 1812, etc. -- then I think that conclusion is very likely correct.

  Why? Here caselaw doesn't do much for us. As far as I know there is no caselaw on anything like this question. Probably as close as you can get is United States v. Verdugo-Urquidez, and that's still pretty far away. But I think the problem is that the principles of the Fourth Amendment and the principles of an active battlefield are almost 180 degrees apart from each other. Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force. I don't know how a Fourth Amendment lawyer could be expected to weigh in on questions of military strategy to try to respect some sort of Fourth Amendment constitutional values. What would the lawyer say -- that the Army should break into enemy safehouses only during day time, for fear that breaking in at night could interrupt the enemy's "period of nighttime repose"? That they should "knock and announce" their presence before the Marines take a hill? It's hard to know how the two worlds are supposed to mix; they are just totally different.

  Or at least they are very different if "domestic military operations" is given a narrow meaning, such as an active battlefield. If the phrase has some sort of broader meaning, then you start to run into problems. Obviously, the mere fact that a war is on does not eliminate Fourth Amendment rights. Nor does the fact that the President is commanding the Executive Branch to act to protect the country mean that the Fourth Amendment doesn't apply. See, e.g., United States v. United States District Court. If the OLC memo took a contrary position, then it's pretty obviously wrong.

  As for whether the OLC memo takes (or took) such a broad reading, we just don't know. The Administration has long had a very broad view of how broadly "the battlefield" is in the GWOT, so it's possible. But we just don't know, and without that it's hard to know whether the OLC memo is objectionable.

Obama Favors Gun Control . . . Until the Pennsylvania Primary

John Lott has this very interesting op-ed, tracking Senator Obama's support for broad gun control measures ... support that seems to have evaporated with the Pennsylvania primary just a few weeks away. Lott quotes a personal exchange with Obama in which Obama said directly to Lott, "I don't believe that people should be able to own guns."

It will be interesting to see what exactly Obama says about his position on gun control during the campaign. Based on the evidence cited by Lott, it looks like he has taken a fairly consistent position in favor of banning handguns and perhaps some other guns as well.


Right To Choose Which Photographs You Create:

A commenter asks, "how many people would (dare to) take the photographer's side here if she refused to photograph a mixed-race couple?" I should hope that virtually all of those who support Elaine Huguenin's Free Speech Clause rights would support that hypothetical photographer's constitutional rights, too. I certainly would, just as I support the constitutional rights of many people whose views I condemn.

The premise of the argument I've made is that the government may not force you to create speech that you don't want to create, whether that's an article, a press release, a photograph, or a painting. You can be a racist, anti-same-sex-marriage, a devout Catholic who doesn't want to create works celebrating a marriage of divorced people, an orthodox Jew who doesn't want to create works celebrating a marriage of Jews and non-Jews, or whatever else. It doesn't matter.

The desire to prevent race discrimination should no more dissolve your right to be free from being compelled to speak (here, to create an artistic work) than it should dissolve the right to express bigoted views, to choose members of a racist political organization, or to select ministers (or church members) based on any criteria a church pleases. And if that means that writers and photographers can't be legally barred from choosing their subjects based on race, that's just an implication of the basic First Amendment principle of the speaker's right to choose what to say.

There should be nothing particularly daring about this position.


The Case for Keisler: Over at Bench Memos, Ed Whelan asks why Peter Keisler's DC Circuit nomination is being blocked. Presumably the answer is that it's a political process, and that's how the politics are working out right now. But whatever the reason, I share Ed's dismay about the situation. I don't know Keisler well, but everyone I have spoken with on both sides of the aisle speaks extremely highly of him. Of all the pending Bush nominations, Keisler's is the one that I would most like to see go through.

Related Posts (on one page):

  1. No More Games:
  2. The Case for Keisler:

Wednesday, April 9, 2008

The ACLU and the Elane Photography Case:

Stop the ACLU writes,

Where was the ACLU on this one you may ask? Word has it that an ACLU-affiliated attorney represented the "offended" lesbians. "Foremost defender of the United States Constitution and the Bill of Rights" .... yeah right. More on that later.

From what I know of this case, I see no reason to fault the ACLU for it. Elane Photography's lawyer tells me that Julie Sakura of Albuquerque was the lawyer on the other side; she is not an ACLU staffer, nor, to my knowledge, has the ACLU taken a stand on this, or had Sakura characterize herself as an ACLU representative. Sakura has worked with the ACLU as a cooperating attorney, but my sense is that this just means she sometimes takes cases for them. It certainly doesn't mean that all her work is ACLU-sanctioned.

Nor do I see any reason to fault the ACLU for not representing Elane Photography here. Elane Photography has eminently capable counsel in the form of the Alliance Defense Fund; I don't know that Elane Photography even sought the ACLU's help. And while it might have been possible for the ACLU to file a friend-of-the-commission brief (though I'm not sure the commission's rules allow it), it's certainly sensible for an organization with limited resources to avoid spending effort on amicus work at such a stage, especially given that competent counsel are on the case.

I'll be happy to condemn the ACLU for being on the wrong side here if they actually end up on the wrong side. But so far I see no evidence of this -- please correct me if I'm mistaken.


Rosen's Unnatural "States of Nature":

New Republic legal affairs editor tries his hand commenting on environmental law in “States of Nature: How George Bush's legal war against the environment backfired,” and makes a complete hash of it. Rosen’s thesis is that conservatives have waged a “long-standing campaign against environmental protections” in which they “have taken a kitchen sink approach,” deploying various – at times even contradictory – legal arguments, irrespective of legal principle. Writes Rosen, “The only consistent objective was to thwart regulation, and the only question was which strategy would be most effective in achieving that goal.” An unintended consequence of this strategy, Rosen hypothesizes, is that “conservative anti-environmentalists may find that they have laid the legal groundwork for their ultimate defeat.”

From the outset, Rosen’s essay suffers from careless and inaccurate characterizations of conservative positions. Where Rosen correctly notes that many conservatives embraced federalism-based challenges to environmental regulations – what he calls a “states’-rights strategy – his primary example is out of place.

During the Reagan and first Bush administrations, the states'-rights strategy initially prevailed. In a series of legal challenges, conservatives embraced a pre-New Deal vision of Congress's power to regulate the environment. They insisted that the Clean Air Act, which instructs the EPA to "protect the public health" by regulating ozone and particulate matter, was an unconstitutional delegation of regulatory authority. In a federal appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. embraced this radical argument. (He was the same judge who had called for the resurrection of the "Constitution in Exile"--a reference to judicial limitations on federal authority that had been dormant since the 1930s and that would have called the EPA itself into question.) But, in 2001, in a unanimous opinion written by Justice Antonin Scalia, the Supreme Court disagreed. (In a separate concurrence, only Clarence Thomas indicated that he would be amenable to similarly radical arguments in the future.)
Contrary to Rosen's suggestion the nondelegation doctrine is hardly a “states’ rights strategy” or a “states’-rights argument,” as it limits congressional delegations to administrative agencies, and does nothing to formally limit Congress’ ability to displace state authority. Further, it is misleading to say that the D.C. Circuit decision he references (American Trucking Associations v. EPA) held the Clear Air Act itself to be unconstitutional. Rather, in a portion of the opinion written by Judge Stephen Williams (not Judge Douglas Ginsburg as Rosen claims -- presumably in order to insert a gratuitous reference to “Constitution in Exile”), the court held that the act, as interpreted by the EPA, would amount to an unconstitutional delegation, requiring the EPA to interpret the act so as to provide a meaningful “intelligible principle” that would limit the agency’s discretion. This is an important distinction because the D.C. Circuit decision would have allowed the EPA to cure the problem on remand – something a holding that the Act itself was unconstitutional would have precluded.

Rosen then makes clear that Justice Scalia should not be regarded as an environmental hero for authoring the decision overturning the D.C. Circuit, for “Scalia's rejection of the states'-rights argument didn't mean he was sympathetic to environmental regulations; it meant he was intellectually flexible about how to attack them.” The problem with Rosen’s characterization here was that the EPA rules upheld by Scalia’s opinion (in Whitman v. American Trucking Associations) were arguably the single most expensive environmental regulation ever proposed by the EPA. If Scalia was intent on implementing an “flexible” anti-regulatory strategy, he would hardly have sought to uphold such a massive administrative decision, nor would he have embraced an interpretation of the Clean Air Act that decisively rejects any reliance on cost-benefit analysis in the setting of federal air quality standards. Yet that is precisely what Scalia’s opinion did.

Rather than address the starkly pro-regulation implications of Scalia’s opinion, Rosen proceeds to suggest the decision is part of a “two-front war” against “meddlesome regulations at the state and federal levels.” By augmenting federal power as against the states, Rosen suggests, Scalia and other conservatives are limiting the ability of states to adopt environmental and other regulations. While this might be a reasonable critique of various arguments for expansive federal preemption of state law, it is bizarre to connect Scalia’s American Trucking opinion to such a cause.

Rosen turns next to the Bush Administration where, he writes, conservatives have “committed the EPA to an anti-regulatory agenda, and then attacked any states that tried to pass broader environmental protections than the now-complaisant federal agency.” Contrary to Rosen’s suggestion, the EPA has continued to adopt new regulatory controls on business over the past eight years, though far less aggressively than many environmental activists would like. This is hardly the agenda of an “anti-regulatory” or “complaisant” agency.

The one area where the EPA has been “anti-regulatory” and “complaisant” is in the context of climate change. As Rosen correctly observes, “the Bush administration tried to do as little as possible on global warming” and denied California’s request for a waiver of preemption under the Clean Air Act so it could adopt and enforce its own greenhouse gas controls on new motor vehicles. Rosen reports that “the EPA's own legal staff warned that the denial of the waiver was illegal.” Yet as I’ve discussed before, there is a strong argument that the EPA staff is wrong, as a matter of law (see here and here). Then Rosen commits a real howler, writing in the very next sentence that the Supreme Court, in Massachusetts v. EPA “agreed” with the EPA staff’s judgment. No. The Supreme Court did not “agree” with the EPA staff who said the denial of California’s waiver was illegal. Mass v. EPA rejected the Bush EPA’s conclusion that it lacked authority to regulate carbon dioxide is a pollutant under the Clean Air Act, but this has little bearing on whether California is entitled to a waiver. Indeed, the EPA did not deny California’s waiver request until well after the Mass v. EPA decision.

Continuing on the Court’s Mass v. EPA decision. Rosen writes:

Justice John Paul Stevens's opinion for the Court, joined by Justice Anthony Kennedy and the three liberals, was full of rhetoric about the importance of states' rights and federalism, noting that states like Massachusetts played a crucial role in challenging the federal government's failure to follow the clear mandates of the law. Scalia's dissent, joined by Thomas, Samuel Alito, and John Roberts, struck a much more nationalistic note, arguing that the Court owed deference to the "reasoned judgment" of the EPA. (A year after the decision, the foot-dragging EPA has still failed to make the finding the Court required, leading congressional Democrats to threaten a subpoena.
This is also a bit odd, as the language stressing the importance of states’ rights in Justice Stevens opinion is in the portion of his opinion about standing. The Scalia dissent, on the other hand, focused on an entirely different question in the case – whether the EPA had regulatory authority over carbon dioxide – not standing. The response to Justice Stevens’ invocation of the importance of states in environmental protection was written by Chief Justice Roberts. Rosen’s characterization here is even more confused, as one of Justice Stevens’ arguments was that greater solicitude of state standing was justified because states had given up their sovereign power to deal with interstate pollution problems to the federal government. According to Stevens, in return for this sacrifice of sovereign power, courts should be more permissive to state litigants who seek to prod the federal government to regulate in their stead.

Rosen then proceeds to suggest that many conservatives are simply embracing a pre-Goldwater, pro-business agenda – a fair point – and that this could backfire if (as seems likely) the next presidential administration is more sympathetic to environmental regulation. Yet his evidence that the legal arguments made by conservatives against environmental regulations will somehow facilitate regulatory expansion is decidedly lacking. Perhaps recognizing the weakness of his case here, Rosen quickly suggests that the conservative defeat will come at the hands of Congress, rather than the courts:

even if anti-environmentalists convince the Supreme Court to overturn the policies of President Obama, Clinton, or McCain, Congress would likely reverse the decision with bipartisan majorities. Almost three in four Americans say they would pay more taxes for local governments to reduce the gases that cause global warming, according to a recent Roper/Yale environmental survey.
Perhaps this is true, but it hardly substantiates Rosen’s opening claims, and there are ample reasons to doubt Congressional eagerness to adopt expansive environmental measures. Democratic control of Congress has hardly led to the advancement of meaningful environmental legislation.

In conclusion, Rosen writes:

Because state legislators and Congress are in a pro-environmental mood, and because the Supreme Court is now committed to deferring to Congress, says Douglas Kendall of the Community Rights Council [sic], "the next administration has all the tools it needs to control the global-warming agenda, and to push Congress to implement a national solution." In their opportunistic moves to use the courts and the EPA to thwart politically popular environmental regulations, conservatives may have unwittingly checkmated themselves.
This last bit is simply silly There is nothing in “states’-rights” legal arguments that would obstruct Congress’ ability to adopt meaningful climate change policies. Even the most aggressive federalism arguments against environmental regulations acknowledged that the regulation of air pollution is well within even a relatively limited view of federal power. Contrary to Rosen (and Kendall), there is little in the legal arguments that conservatives have actually advanced that will have such a boomerang effect, let alone “checkmate” conservative policies.

There are many reasons to criticize the Bush Administration’s haphazard and largely unprincipled approach to environmental policy. It’s also fair to observe how the Bush EPA and Congressional Republicans have missed opportunities to articulate and advance a principled conservative environmental agenda. The problem with Rosen’s essay, however, is that he misstates or misrepresents the relevant legal issues and arguments in the process of making his case. Only through gross oversimplifications and exaggerations does he make his ultimate thesis seem even plausible. This would be excusable from a newspaper editorial writer or generic political commentator, but from the legal affairs editor of the New Republic this level of legal analysis it is quite disappointing.


Religious Exemptions and the Elane Photography Case:

I'm wondering whether the religious exemption question might be getting lost in our discussion of the compelled speech issue. The compelled speech issue is a First Amendment question, and thus arises everywhere, and for all photographers, so that is more important. But the religious exemption issue remains significant, since about half the jurisdictions have a general religious exemption rule (by statute or by interpretation of the state constitutional provision).

Recall that the New Mexico Religious Freedom Restoration Act provides that:

A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Assume, as seems to be the case, that Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. Is applying the antidiscrimination law to Huegenin really "essential to further a compelling governmental interest," especially given that there are doubtless many other Albuquerque photographers who would have no religious objections to photographing same-sex ceremonies? Will it even materially advance whatever compelling governmental interest is present, given that forcing photographers to photograph events that they find repugnant is not likely to produce the warm, affectionate photographs that couples want?

I discussed this more here, but I wanted to ask what you folks -- and especially those who defend the New Mexico Human Rights Commission decision -- think about this.


Legal Requirements That You Write Things or Create Photographs:

Let me mention again the hypothetical I posed in my earlier post, and ask for the reaction of those who think the New Mexico Human Rights Commission's decision is constitutional. Maybe I'm mistaken, but my sense is that there weren't many responses to it, and I'd love to see more, again especially from people who think the Commission's decision doesn't violate the First Amendment.

Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?

One response I saw a few people make is that wedding photography isn't really artistic, the way that creative photography is. Well, I suppose that some will say that writing press releases or Web pages on commission isn't really literary or political, the way that writing fiction or opinion columns is; that's why I chose this particular example. Yet I take it that even being compelled to write bland, relatively generic copy about the virtues of some same-sex marriage planning company would be seen as a speech compulsion. Why wouldn't being compelled to take bland, relatively generic photographs likewise qualify (especially since taking and selecting good photos does involve at least some artistic decisionmaking)?

Another response was that there's no First Amendment issue with imposing nondiscrimination obligations on lemonade sellers, chefs, florists, and the like. But I take it we would see such an issue with imposing such obligations on writers, no? Why isn't a photographer far closer to a writer for First Amendment purposes, given that both photography and text are traditionally recognized as First-Amendment-protected media (because of their capacity to convey facts and ideas)?

One response pointed out that lawyers, who speak for a living, are required not to discriminate in choice of clients. But the First Amendment rights of lawyers practicing law are considerably constrained, see, e.g., Gentile v. State Bar of Nevada, and especially when it comes to choice of clients; for instance, courts generally still have the power to appoint lawyers to represent indigent criminal defendants, even if the lawyer objects on ideological grounds. Whatever the proper rule for lawyers should ultimately be, I don't think that the constitutionality of certain speech compulsions for lawyers -- officers of the court who have been therefore treated as something distantly kin to government employees -- tells us much about similar speech compulsions imposed on photographers, writers, painters, musicians, and others.

So tell me, please, if you think the Commission's decision is constitutional: Could the freelance writer be compelled to write copy for the same-sex marriage planning company, or the Scientology book distribution company? If the answer is "no," then what exactly is the difference between the writer and the photographer?


The International Law of Genocide and the Soviet Terror Famine of the 1930s:

Last October, I explained why international law is wrong to classify "genocide" as a different and more serious crime than mere mass murder. The recent brouhaha between the Russian and Ukrainian governments over Joseph Stalin's terror famine of the 1930s is a case in point. Not even the apologists for communism in former KGB Colonel Vladimir Putin's government deny that Stalin ordered the deliberate mass murder of millions of peasants in order to facilitate the collectivization of Soviet agriculture. In his classic study, The Harvest of Sorrow, historian Robert Conquest estimates that as many as 14 million rural people may have died because the Soviet government confiscated their land and food supplies.

However, the Ukrainians claim that this mass murder counts as genocide because Stalin specifically targeted Ukrainian peasant farmers for extermination. The Russian parliament, by contrast, claims that Stalin was an equal opportunity mass murderer, targeting Russians, Ukrainians, and others alike. International law considers mass murder to be genocide only if it is the result of an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Thus, if Stalin killed the Ukrainian peasants because they were peasants rather than because they were Ukrainians, it wasn't genocide, and therefore a less serious crime.

Frankly, I see no reason why this difference in Stalin's subjective intentions affects the severity of the crime in any way. The impact of the mass murder is exactly the same either way. And I don't see why Stalin and his henchmen somehow become less immoral if they killed millions of innocent people for "economic" reasons rather than for racial or ethnic ones.

Interestingly, as Jonah Goldberg points out in a column on this dispute, the international law definition of genocide may have been crafted to exclude mass murders targeting political or economic groups precisely because the Soviet bloc insisted on it. Although communist states sometimes do target groups based on ethnicity (as in the USSR's ethnic cleansing and partial extermination of the Crimean Tatars), most of their mass murders were based on economic and political grounds; and Stalin apparently wanted to make sure that they weren't covered by the international law of genocide. If so, this is another example of the pernicious influence of nondemocratic states on international human rights law, which John McGinnis and I discuss in this paper.

UPDATE: Various commenters argue that genocide is worse than other mass murders because it destroys cultural value as well as killing individuals. I addressed this point in my earlier post on genocide and mass murder. For readers' convenience, here's what I said:

Sometimes, it is argued that genocide is worse than other types of mass murder because it deprives the world of valuable cultural diversity, not just of the contributions of particular individuals. That may well be a real harm of genocide. But other types of mass murders also destroy diversity and other cultural resources. For example, Pol Pot's decimation of Cambodia's educated classes surely did severe damage to Cambodia's culture. Stalin's extermination of Russians active in political movements other than his own certainly undermined valuable diversity in that country, and so on. Whether genocide causes more cultural damage than other types of mass murder will vary from case to case.

UPDATE #2: For what it's worth, I think the evidence on Stalin's motives is somewhat unclear. There is little doubt that Stalin's main objective was to achieve the collectivization of agriculture by destroying the class of private landowning farmers - regardless of ethnicity. In addition to the Ukrainians, millions of Russian peasant farmers were also killed, along with members of other ethnic groups (including a good many Georgians - Stalin's own nationality group). On the other hand, Stalin, like other Russian and Soviet rulers, feared Ukrainian nationalism, since the Ukrainians were the Soviet empire's largest minority group. As Conquest and other historians suggest, he may well have been happy to cut down on the number of Ukrainians under his rule, thereby reducing the chance that they would ever be able to achieve independence. The terror famine enabled him to achieve both his ethnic and his economic objectives at the same time.


First Amendment and Photography/Writing/Publishing/Book Distribution for Money:

A commenter writes, about the photographer case,

This case isn't about art it's about commerce. If she ran a lemonade stand and refused to sell same sex couples or interracial couples, it would be clearly discriminatory.

The case is about art that is sold in commerce -- just as newspapers are sold in commerce, paintings are sold in commerce (whether to the person who commissioned them or to a museum), books are sold in commerce, and the like. And because photography is a medium of communication and of expression of ideas (unlike lemonade sales), the First Amendment is implicated (and, in my view, violated). Just as a bookstore may choose to sell only black-authored books, or refuse to sell Christian-themed books, so it seems to me that a photographer should

This also responds, I think, to comments such as "If she holds herself out as a business offering to perform a service, then it would seem that she cannot refuse that service to anyone falling into a protected class." Bookstores also offer to perform services, both to buyers and to publishers and authors; but they may choose what books to stock. Yet it doesn't follow that they may be denied their freedom to choose which speech to distribute.

Likewise, let me repeat the hypothetical I posed in my earlier post, which I think people didn't much respond to. Say you're a freelance writer, who holds himself out as a business offering to perform a service. Someone tries to hire you to write materials -- press releases, Web site materials, and the like -- for his same-sex marriage planning company, or his Scientology book distribution company, or whatever else.

May the government force you, on pain of damages liability, to write those materials, even if you would prefer not to because of the sexual orientation, religion, or whatever else to which the materials would be related? Or do you have a First Amendment right to choose which words you write and which you decline to write? If you do have such a right, why shouldn't Elaine Huguenin have the same right as a photographer?


Religious Accommodations and the Elane Photography Case:

In my earlier post about the photographer who refused to photograph a same-sex commitment ceremony -- and was punished by the government as a result -- I discussed the First Amendment objections to the New Mexico Human Rights Commission's decision. But the decision may also violate the photographer's religious freedom rights under the New Mexico Religious Freedom Restoration Act. The act, which is similar to the legal rules in place in about half the states and as to federal law, provides that

A government agency shall not restrict a person's free exercise of religion [i.e., an act or a refusal to act that is substantially motivated by religious belief] unless ... the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Elaine Huguenin's refusal to photograph a same-sex commitment ceremony does seem to be substantially motivated by her religious belief. She is therefore entitled to an exemption unless applying the law to her passes "strict scrutiny" -- "is the least restrictive means of furthering [and is essential to furthering a] compelling governmental interest."

What government interests might justify denying Huguenin the exemption? If the interest is in making sure that people have roughly equal access to services, regardless of their sexual orientation, then I doubt that requiring Huguenin to photograph the ceremony is essential to serving that interest. There surely are lots of other photographers in Albquerque, and I have no reason to think that all or even most of them share Huguenin's religious objections; if Huguenin is given an exemption, same-sex couples will still have lots of photography services available to them. And given that a wedding photographer, to do a great job, likely needs to feel some empathy with the ceremony, forcing the Huguenins of the world into photographing a ceremony that they disapprove of will likely not give same-sex couples very good service.

But if the government's view is that people have a moral right not to be discriminated against -- entirely independently of any practical burden that such discrimination imposes on them -- based on their sexual orientation, then it would appear that every instance of sexual orientation discrimination would violate that right. And if the government has a compelling interest in vindicating that right, then granting an exemption even to a few religious objectors would jeopardize that interest, and denying the objection would be essential to maximally furthering the interest. On the other hand, can New Mexico assert such a compelling interest when it itself discriminates against same-sex couples in its marriage laws?

So the religious freedom issue would turn, I take it, on what version of the government interest New Mexico courts ultimately recognize -- the first version, focusing on practical access to services, which should lead to granting an exemption, or the second, focusing on a supposed moral right not to be discriminated against, which should lead to denying an exemption (if the government is seen as having a compelling interest in protecting that right). Incidentally, in a similar area, marital status discrimination in housing against unmarried couples, the several state courts applying state religious accommodation regimes have split, based precisely on this issue of which sort of interest is involved.


Photographers Denied the Freedom To Choose What They Photograph:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane's work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock's same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney's fees and costs.

I haven't seen any written statement of reasons, but the order must implicitly rest on two interpretations of state law: (1) This sort of photography company constitutes a "public accommodation," defined by state law "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private." (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there's no precedent precisely on point).

Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a "photojournalist" approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including painting and sculpture, as well as photography. Certainly many of the works protected by the First Amendment (books, newspapers, movies, and the like) were created for money and distributed for money.

Yet the New Mexico government is now telling Huguenin that she must create art works that she does not choose to create. There's no First Amendment case squarely on point, but this does seem pretty close to the cases in which the Court held that the government may not compel people to express views that they do not endorse (the flag salute case, West Va. Bd. of Ed. v. Barnette, and the license plate slogan case, Wooley v. Maynard).

For whatever it's worth, Huguenin also says she exercises political judgment in deciding what to photograph (for instance, she reports that she refuses to make photographs that put horror films in a positive light, or to take photographs that positively portray abortion, pornography, or nudity, as well as same-sex marriage). I don't think that sort of political selectivity should be required for photographers to be protected as artists, but it seems to me to highlight the scope of the artist's judgment, and the artist's constitutional right to exercise such judgment (just as a bookstore has the right to choose which books to stock).

Consider also a hypothetical analogy: Say that instead of Willock's trying to hire a photographer, Willock was trying to hire a solo freelance writer (or a writer in a two-person freelancing partnership) to write materials for Willock's (hypothetical) same-sex marriage planning company. The writer refused on the grounds that she didn't want to promote such a company.

I take it the law would cover the writer as much as it would cover the photographer (why wouldn't it?). Yet wouldn't requiring writers — even writers of press releases and Web sites — to write words that express views they reject violate the First Amendment? And if not, what's the difference between that and requiring photographers to take photographs that implicitly but strongly express views they reject? (Wedding photographs, of course, express views celebrating the event being photographed.)

More on the religious freedom issues and perhaps some other matters shortly.


Bad Voodoo's War: PBS Frontline recently broadcast a 1-hour show about a platoon of National Guard soldiers currently doing a tour of duty in Iraq: Bad Voodoo's War. The film presents the war from the platoon's perspective. It's now available in its entirely online; the homepage has a link to the video.

  More importantly, at least to me, my friend J.P. Borda is a Sergeant in the platoon. I asked him if the Frontline story presented the platoon's experience accurately, and he wrote back, "it sure did," with the caveat that "our perspective is one of many."

  The platoon also has its own blog now: Bad Voodoo's Blog. For the story of how Frontline came to do this story, watch the video extras here and click on "The Making of Bad Voodoo's War."

Probably Not a Good Way to Avoid Reasonable Suspicion: From United States v. Robinson, an unpublished 11th Circuit decision last week on whether the police had reasonable suspicion to prolong a traffic stop for a few minutes given their suspicion that the driver was a drug courier:
  After Robinson pulled the car over, he got out and went to the rear of the vehicle. Deputy Crowe asked Robinson for his driver’s license, which Robinson provided. Crowe then enquired who owned the car and where Robinson was going. Robinson told Crowe that a friend of his, a stripper named “Fluff,” had lent him the car to drive “Mouse” (Mills) to Delaware. When Crowe asked for the car’s insurance and registration papers, Robinson told him that Mouse had them.
  Crowe went to the car, asked for Mills’ real name, and requested the insurance and registration papers. When Mills complied, Crowe saw that the insurance on the car was valid but made out to "John Greggo."
It seems to me that if you're a drug courier driving a car registered to Mr. John Greggo, you should have a story ready to tell the police better than that a stripper named "Fluff" lent you her car to drive "Mouse" to Delaware.

Tuesday, April 8, 2008

[Charles Lane, guest-blogging, April 8, 2008 at 10:54pm] Trackbacks
Martin Luther King and Colfax

The just concluded MLK assassination anniversary was a somber event everywhere, and especially in our nation's capital, my hometown, which burned -- figuratively and literally -- in the wake of James Earl Ray's evil deed. I can remember those days from my childhood, and they're not happy memories. It took the city pretty much until now to recover, physically, from the destruction.

The renewed public reflection on the violence/nonviolence dynamic of those years reminds me, of course, of Reconstruction and the lost opportunities of the post-Civil War period. Could we have spared ourselves the trauma of the 60s -- not to mention the injustice and national disgrace of the racial oppression that came before -- if cases like Cruikshank and political events like the 1876 election had come out differently? In other words, could we have obviated the "Second" Reconstruction if we had gotten the first one right?

It's tempting to say yes. I don't think history supports such an answer, however. My study of Reconstruction leaves me hard-pressed to argue that there was ever much of a chance for a happy ending.

The African American population of the 1870s were overwhelmingly concentrated in the South -- and the Deep South at that. In addition, the vast majority of them were illiterate and completely dependent on whites for jobs, mostly on the same plantations they had once worked as slaves, or similar lands. And those whites were angry, defeated, bitter people, with few sources of status left other than their claim to racial superiority. In short, blacks were little more than a rural proletariat, surrounded by or intermingled with well-armed and relatively wealthy racial enemies. This social and economic weakness ruled out strategies of non-violent protest, such as strikes or boycotts.

Armed self-defense was perhaps a more promising notion, except that it required weapons, and the only sources of those, the federal government and Republican state governments, were profoundly ambivalent about "black militias." These were thought to be highly dangerous, because overly provocative of whites. "Race war" was a bugaboo throughout the period.

Thus, the only strategy available to blacks was to vote for Republicans, black and white, as long as their right to vote could be protected by federal power. And in time, as Southern resistance of all kinds -- legal and illegal -- proved intractable, the federal government's willingness to protect blacks faded. Out of sight, out of mind became increasingly viewed as an expedient approach to "the Negro problem." Surrender to white violence and fraud proved easy to justify amid incessant propaganda about the alleged corruption of black voters and the Republican politicians, black and white, whom they supported.

Things began to change with the Northern migration of African Americans in the 20th Century, and especially after World War II. Though, ironically, this meant that blacks were no longer a demographic majority or near-majority in certain Southern states, their dispersion increased their economic diversity and independence -- albeit slowly and minimally -- and opened up new political avenues. To oversimplify, in the cities, north and south, black people were harder to ignore. The Cold War gave Washington powerful incentives to ameliorate the condition of black citizens, if only to avoid international embarrassment.

Dr. King -- and let it never be forgotten that his movement began in the urban South, in places like Montgomery, Birmingham and Atlanta -- brilliantly exploited this new political space with a strategy that did not directly depend on federal support but constantly leveraged federal action through the spectacle of dignified, nonviolent resistance to a truly monstrous system of Southern apartheid.

This is what it took to revolutionize American race relations, and though it's dangerous to claim that anything in history was inevitable, I doubt it could have been accomplished under the conditions of 1870s America.

A footnote: A real irony of the 60s is that the Justice Department returned to the role its post-Civil War founders had intended for it. Its initial reason for being was to beef up federal enforcement of criminal and civil statutes intended to protect the freedmen. Once that authority faded in the post-Cruikshank years, the department branched out into other kinds of federal crimes, under Commerce Clause authority -- or even 18th Amendment authority!

Anyway, the Eisenhower, Kennedy and Johnson Justice Deparments' role in desegregating the South was true to the department's primordial mission -- the mission guys like James R. Beckwith took up, with such limited results, in cases like Colfax.

PS I know J. Edgar Hoover's FBI, which harassed King no end, is a big, fat exception -- but even he made a great show of fighting the Klan.


Nominations for the Best Law Teachers: Who are the best law teachers? And what makes them so effective in class? If you're interested in these questions, you might be interested in Professor Michael Hunter Schwartz's book project, "What the Best Law Teachers Do." You can submit a nomination to Professor Schwartz at michael.schwartz [at] A list of current nominations, together with statements in support of the nominations, can be found here.

Lowest Reading Ever: The Associated Press reports that Pending Home Sales Hit Low in February:
  WASHINGTON (AP) - An industry group said Tuesday that pending U.S. home sales fell in February to the lowest reading since the index began, signaling the housing market distress is not yet over.
  The National Association of Realtors' seasonally adjusted index of pending sales for existing homes fell to 84.6 from January's upwardly revised reading of 86.2. The index stood at 107.6 in February 2007.
  Wall Street economists surveyed by Thomson/IFR had predicted the index would inch up to a reading of 86.3.
  A reading of 100 is equal to the average level of sales activity in when the index started. The previous low was August's reading of 85.8, recorded at the height of the credit crunch.
  (emphasis added)

  Wow, the lowest reading ever, since the index began!! But when did the index begin? It turns out it began just a few years ago, in 2001. The National Association of Realtors website explains that the index was started in the banner year of 2001 and uses that year as a baseline:
An index of 100 is equal to the average level of contract activity during 2001, the first year to be analyzed. Coincidentally, 2001 was the first of four consecutive record years for existing-home sales. 2001 sales are fairly close to the higher level of home sales expected in the coming decade relative to the norms experienced in the mid-1990s. As such, an index of 100 coincides with a historically high level of home sales activity.
  I don't have much to say about the housing market; I'm happy to leave that mostly to David B., our resident real estate blogger. But it seems like this might be worth noting in the article to give a more complete picture of things.

Prohibiting Publication of Others' Photos?

The California legislature is now considering AB 2296, which is aimed at protecting researchers against animal rights terrorism. I certainly support the researchers generally — my own colleagues here at UCLA have been victims of vandalism and arson at their homes — but one provision strikes me as clearly unconstitutional:

No person, business, or association shall publicly post or publicly display on the Internet a home address, home telephone number, or image of any employee of an animal enterprise if that individual has made a written demand of that person, business, or association to not disclose his or her home address or home telephone number. A demand made under this paragraph shall include a sworn statement declaring that the person is subject to the protection of this section and describing a reasonable fear for the safety of that individual or of any person residing at the individual’s home address, based on a violation of subdivision (a). A written demand made under this paragraph shall be effective for four years, regardless of whether or not the individual’s affiliation with an animal enterprise has expired prior to the end of the four-year period.

This is a classic attempt to restrict what I call Crime-Facilitating Speech: Speech that conveys information that helps people commit a crime. The trouble is that, as with many such restrictions, the law punishes valuable speech and valuable uses of the speech as well as trying to prevent the criminal uses.

For instance, this provision bars the display of any photograph ("image" is defined to include photographs) of any animal enterprise employee who has been threatened and who makes the required demand. A newspaper would thus not be allowed to publish on its Web site a photograph of the CEO of a food company or a circus, or of a scientist who is engaged in animal research. A television program's site wouldn't be able to show footage including the person's image (unless it's deliberately blurred). That will cover both critical commentary and ordinary illustration of news stories in which the person plays a role.

Likewise, Web sites will likely have to remove or blur the person's photos that had already been posted on the site, since any continued display of the pictures would violate the "public[] display" ban. Newspaper and Internet archives would have to be suitably edited. These might not be deliberate effects of the bill, but that's what the bill would likely do as currently written.

Of course the law would also affect otherwise constitutionally protected anti-animal-enterprise criticism. For instance, publicizing a person's supposed misdeeds in a way that is aimed to shame them before prospective business partners, colleagues, and neighbors is generally constitutionally protected (see, e.g., Organization for a Better Austin v. Keefe and NAACP v. Claiborne Hardware Co.). That has not been uncommon in labor-related speech, civil-rights-related speech, and the like; and it's been constitutionally protected even when the identification of a person was made at a time when there had been some violent attacks against similar people (as in Claiborne). None of these cases involved photos, but their logic suggests that they would indeed apply to identifying people by photo as well as by name (Claiborne, for instance, arose in a fairly small community in which people likely knew what faces the names went with). Yet this law would ban such attempts to use social ostracism as a political tool (again, something that Claiborne expressly and unanimously held to be constitutionally protected).

Even publishing home addresses can have constitutional value: Though cities may ban residential picketing, the State of California hasn't banned it, and I take it that many cities haven't, either — in those cities, targeted picketing is a legal form of protest. And even if focused residential picketing is banned by a city ordinance, parading through the targets' neighborhood is constitutionally protected.

So it's pretty clear that this sort of restriction does prohibit speech that has valuable uses, not just criminal uses. What's more, this could of course easily be extended beyond threats to "animal enterprise" employees, and would cover a wide range of people who reasonably fear criminal attack — crime witnesses, police officers, other government officials, and many more. And of course it could easily be extended to other media besides the Internet. The right to show people's images in news coverage, public debate, or historical archives would be dramatically affected.

One can still argue that the law is constitutionally permissible despite that, because the need to protect against crime is so great that it justifies suppressing even the valuable communication. I argue against that view in detail here and, in more detail, here. But in this post, I just wanted to highlight how broad (whether deliberately or not) the speech restriction would end up being.

The other provisions of the proposal are more defensible, because they limit themselves to constitutionally unprotected threats and incitement (though even they might be vulnerable to an R.A.V. v. City of St. Paul challenge, because they single out threats and incitement aimed at animal enterprise employees). But this one strikes me as quite troublesome.

Related Posts (on one page):

  1. California Bill Aimed at Protecting Animal Researchers:
  2. Prohibiting Publication of Others' Photos?

Barnett's Constitutional Law: Cases in Context:

I received an examination copy of Randy Barnett's new constitutional law casebook, Constitutional Law: Cases in Context, today. I look forward to perusing it this summer and, who knows, maybe even adopting it for my ConLaw class.

Related Posts (on one page):

  1. Barnett's Constitutional Law: Cases in Context:
  2. Randy Barnett Wins a Guggenheim Fellowship:

The "Torture Memo" Goes to Court:

Lyle Denniston has the details on SCOTUSBlog here.


America's Most Fair-Minded Prosecutor:

Radley Balko interviews Dallas County District Attorney Craig Watkins, who is dramatically moving his office away from a traditional "convict at all costs" mentality, to a philosophy that the prosecutors' role is to pursue justice, not rack up convictions.

Balko suggests he's America's best prosecutor. I don't know about that, and the interview doesn't actual discuss his skills in prosecuting crimes. But Watkins certainly seems like a fair-minded breath of fresh air, who takes the biblical injunction "tzedek, tzedek tirdof" (justice, justice thou shalt pursue) seriously.


Obama's Other Spiritual Mentor: Rev. Michael Pfleger

Christopher Hitchens' latest column in Slate states: "In April 2004, Barack Obama told a reporter from the Chicago Sun-Times that he had three spiritual mentors or counselors: Jeremiah Wright, James Meeks, and Father Michael Pfleger--for a change of pace, a white Catholic preacher who has a close personal feeling for the man he calls (as does Obama) Minister Farrakhan."

Pfleger is the Pastor at St. Sabina's Catholic Church, on the South Side of Chicago. So I searched Westlaw's ALLNEWS database for "Obama and Pfleger."

According to the April 5, 2004 Chicago Sun-Times article cited by Hitchens:

Friends and advisers, such as the Rev. Michael Pfleger, pastor of St. Sabina Roman Catholic Church in the Auburn--Gresham community on the South Side, who has known Obama for the better part of 20 years, help him keep that compass set, he says.

"I always have felt in him this consciousness that, at the end of the day, with all of us, you've got to face God," Pfleger says of Obama. "Faith is key to his life, no question about it. [It is] central to who he is, and not just in his work in the political field, but as a man, as a black man, as a husband, as a father.... I don't think he could easily divorce his faith from who he is."
As Hitchens wrote, Rev. Pfleger is indeed an admirer of "Minister Farrakhan." Ambushed by a Bill O'Reilly camera crew, Pfleger stated: "He has--first of all, he has not called Judaism a gutter religion of blood suckers. That is not what he has said because I have heard that talk. I stick up for Louis Farrakhan because he is another person that the media has chosen to define how they want to do it. And they demonize how they want to demonize somebody. I know the man, Louis Farrakhan. He is a great man. I have great respect for him, ho has done an awful lot for people and this country, black, white, and brown. He's a friend of mine." (The O'Reilly Factor, Apr. 3, 2008.) Farrakhan spoke at St. Sabina's on May 25, 2007. (Chicago Sun Times, May 10, 2007.)

Like Rev. Jeremiah Wright, who was recently an invited speaker at Rev. Pfleger's church, Rev. Pfleger believes that "racism is still America's greatest addiction." (Chicago Sun Times, Jan. 17, 2004.)

In September 2007 in Iowa, Plfeger participated in forums on the role of spirituality in politics, which the Obama campaign had organized. (US Federal News, Oct. 1 & 14, 2007; Chicago Sun Times, Sept. 12, 2007). The Obama campaign touted Pfleger's endorsement, listing him as one of about a dozen prominent ministers who supported Obama. (Daily Herald (Arlington Heights, IL), May 8, 2007.)

As a state legislator, Obama obtained $225,000 in grants for St. Sabina. (Chicago Tribune, May 2, 2007.)

Rev. Pfleger was a prominent early endorser of Obama's successful 2004 Senate campaign, as well as his unsuccessful 2000 challenge to U.S. Rep. Bobby Rush.

Rev. Pfleger's church has taken some admirable stands against the degradation of American culture, such as speaking out against abusive rap music, and hosting a speaker who exposed the anti-Catholic compilation of lies in "The DaVinci Code." (Chicago Defender, May 15, 2006.) St. Sabina also organized a rally against the genocide in Darfur. (Chicago Sun Times, May 19, 2005.) Rev. Pfleger appeared at a press conference to support state legislator Obama's bill requiring the police to keep statistics on the race of motorists who were stopped by the police, so as to deter racial profiling. (Chicago Defender, Feb. 20, 2001.)

Rev. Pfleger also appeared at a press conference announcing State Senator Obama's proposal to outlaw the sale of bidi cigarettes--a type of high-nicotine hand-rolled cigarette which is made in India. (Chicago Defender, Feb. 5, 2000.)

Rev. Pfleger does not respect the property rights of persons who sell products he does not like. He "is known for climbing ladders to deface liquor billboards." (Crain's Chicago Business, Dec. 20, 2004.)

The Westlaw database does not indicate that Sen. Obama has participated in the project which has gained Rev. Pfleger notoriety among Bill of Rights advocates: his persecution of Chuck's Gun Shop. Since all firearms stores have been driven out of Chicago, the closest firearms store to Chicago is Chuck's Gun Shop, in Riverdale, a short distance south of Chicago. Pursuant to Illinois law, Chuck's only sells guns to customers who have already obtained a Firearms Owner's Identification Card (FOID) issued by the Illinois State Police after a background check. The employees of Chuck's Gun Shop have also voluntarily undertaken the "Don't lie for the other guy" training program sponsored by the National Shooting Sports Foundation and the Bureau of Alcohol, Tobacco, Firearms and Explosives, to help gun store employees detect straw purchases (purchases by legal buyers conducted on behalf of prohibited persons).

Yet the Reverends Michael Pfleger and Jesse Jackson have been organized large crowds to repeatedly picket Chuck's Gun Shop. On June 23, 2007, Revs. Jackson and Pfleger were arrested for criminally obstructing the entrance to the store. The charges were eventually dropped, just as Governor George Wallace never was criminally punished for standing in a doorway to obstruct the exercise of constitutional rights. (The comparison is a little unfair, since Wallace eventually stood aside, whereas Jackson and Pfleger had to be physically removed by the police.)

In another demonstration at Chuck's Gun Shop, owned by John Riggio, Rev. Pfleger told the crowd: "We're going to find you and snuff you out....Like a rat you're going to hide. But like a rat, we're going to catch you and pull you out....We're going to snuff out John Riggio." Rev. Pfleger also promised: "We're going to snuff out legislators that are voting against our gun laws. We're coming for you because we're not going to sit idly."

Rev. Pfleger later denied that his words had been meant to invoke violence, or that he had known that "snuff out" means to "kill." Rather, the determination to "snuff out" Riggio was a determination to find out his home address, which was not publically available.

According to Roget's Thesaurus, "snuff out" means "kill" and is similar to the following words: "blow away, bump off, chill, dispatch, dispose of, do away with, do in, dust, grease, hit, ice, knock off, murder, off, rub out, stretch out, waste, wax, whack, zap." In response to Rev. Pfleger's words, Cardinal Francis George, of the Archdiocese of Chicago, stated: "Publicly delivering a threat against anyone's life betrays the civil order and is morally outrageous, especially if this threat came from a priest." (Chicago Sun Times, June 8, 2007.)

Rev. Pfleger proclaimed that the protests would continue (and that he would refuse to pay a fee imposed by a city ordinance to pay for the police services necessitated by the picketing) until the Riverdale city council decides to eliminate all gun stores, and "vote Riverdale gun-free." Or as Rev. Pfleger's picketers chanted, "Vote Riverdale gun dry." (Chicago Defender, Oct. 29, 2007).

Every American voter will have to decide how much importance, if any, to give to Sen. Obama's association with Rev. Pfleger. In my own view, I give greater attention to a religious figure who is a long-standing personal advisor to a candidate than to a religious figure who is merely one of thousands of political allies whom the candidate seeks out during a campaign. In deciding how to vote, I ignore purely theological issues (e.g., whether the Mitt Romney's LDS view of the afterlife is more plausible or less plausible than John Kerry's Roman Catholic view), but I consider the extent to which the candidate's religious philosophy may (like any other part of the candidate's worldview) influence his or her public policy decisions. In my view, it is relevant that a candidate has chosen spiritual mentors who are bigots or who are hostile to constitutional rights. Senator Obama's close relationship with Rev. Pfleger makes me less confident that a President Obama would be a strong defender of the entire Bill of Rights and of civic tolerance.


Our Most Underrated President?

If I had to name the most underrated president in American history, Warren Harding would be at or near the top of my list. Harding is routinely ranked at or near the bottom in presidential ratings by historians and other experts.

In Sunday's New York Times, Yale historian Beverly Gage has an interesting article suggesting that Harding may have been the first "black" president in the sense that it is possible that he had a remote black ancestor. Unfortunately, Gage's article about Harding and race relations completely ignores the fact that Harding made a well-known speech advocating full legal equality for southern blacks in 1921, in Birmingham, Alabama. As W.E.B. DuBois pointed out at the time, Harding went farther in advocating equal rights for blacks than any other post-Reconstruction Republican president (the Democrats, at that time the party of southern whites, were even worse). Indeed, no president went as far as Harding in advocating equal rights for southern blacks for several decades thereafter. Harding also lobbied hard for a federal anti-lynching bill to curb the rampant lynching of blacks by whites in the South - again, the first post-Reconstruction president to do so (the bill passed the House, but died in the Senate due to the threat of Democratic filibusters). As DuBois pointed out in the linked article, Harding was not wholly free of the racism common among whites at the time. But he was a lot better than the vast majority of his contemporaries.

Nor were these Harding's only positive aspects. As Gene Healy discusses in his interesting recent book, The Cult of the Presidency, Harding is also notable for reversing the severe violations of civil and economic liberties that had proliferated under his predecessor Woodrow Wilson. It's easy to belittle Harding's campaign slogan - "Return to Normalcy." But Harding's notion of "normalcy" included an end to the imprisonment of political dissenters (such as Wilson's notorious "Palmer Raids"), abolition of wage and price controls, and the reversal of Wilson's numerous illegal seizures of private property. As David Bernstein and I briefly discuss in this article, Wilson's administration was also highly racist and segregationist even by the standards of the day; here too, Harding was a sharp contrast.

I'm not arguing that Harding was a great president. His administration included some serious corruption (such as the famous Tea Pot Dome Scandal), and his intellectual and political skills were not especially impressive. And, as with most politicians, his successes were to a large extent the product of broader political trends, not just his personal efforts. However, Harding's achievements in ending Wilson's harmful policies and his laudable efforts on behalf of civil rights greatly outweigh the relatively limited harm caused by his corrupt underlings. And, by all accounts, Harding himself was clean (though many of his appointees definitely weren't).

Harding will never be ranked among the top few presidents. But he deserves much greater respect than he gets.


A Patent Application on How to Propose Marriage: Find it here. Who ever said that patent attorneys aren't romantic? Thanks to Mark Eckenwiler for the link.

Our First NCAA March Madness Contest is Over.--

Kansas beat Memphis for the NCAA championship, so the final standings in our VC March Madness contest are:

1. Jim Lindgren (yours truly)

2. Mintstate (who actually picked 2 more games correctly than I did)

3. Circ230

4. DUNKtus officio

5. Davidson Dispatch

6. PennLaw 1L

7. Durry's

8. Go Go Gadget

9T. Scalito22

9T. Tears of Boredom

In all, there were 252 contestants in the VC's pool.

I had previously noted that, if I should be lucky enough win it all, I would decline the extremely valuable prizes. So the 2d and 3d place contestants (Mintstate and Circ230) win the first and second prizes.

Thanks go to Todd Zywicki for setting this up and to Todd and Ross Davies for providing the prizes. As Todd wrote introducing the contest:

My colleague Ross Davies, Editor of the Green Bag, has generously agreed to donate both a Scalia and a Kennedy bobblehead. The winner gets first choice and the runner-up the other. In addition, to the winner I will award a Volokh Conspiracy T-shirt.

As often happens, this year the ultimate winner of the tournament (Kansas) breezed through the first 2 games in the tourney, winning both of them by at least 10 points.

Over the years, this is only the third of these large March Madness pools that I have entered (and I have been fortunate enough to win two of them).

One of our commenters figured out why I and other conspirators scored so highly in the contest: the tentacles of the Volokh Conspiracy reach so far that I simply fixed the games. I can tell you that it was hard persuading the Memphis stars to miss most of their free throws near the end of regulation, but we have our ways . . . .


Monday, April 7, 2008

Randy Barnett Wins a Guggenheim Fellowship:

Congratulations to our very own Randy Barnett, who has been named a Guggenheim Fellow in Constitutional Studies!

Thanks to Ed Hoffman for the tip.

Related Posts (on one page):

  1. Barnett's Constitutional Law: Cases in Context:
  2. Randy Barnett Wins a Guggenheim Fellowship:

Congrats to Gene Weingarten of the Washington Post, who has won a Pulitzer Prize for his story about Joshua Bell playing the violin in the DC Metro (as blogged here at the time). Well deserved.

  On a related front, the Pulitzer Prize committee showed its excellent judgment by awarding the prize for distinguished editorial writing to no one.

Pool Alarms Bleg:

I'm hoping to teach my boys to swim soon, but, as they say, "you can lead a horse to water, but you can't make it swim." I'm not sure, therefore, when the 4.5-year-old and the 3-year-old will be pool-safe. And, in the meantime, we'll likely have occasional weekend visits to a friend's summer home that has an unfenced swimming pool.

Hence, my question: Can any of you recommend -- or recommend against -- any particular pool alarms that will provide a third line of defense in case the kids escape our watchful eye, and at the same time disregard our admonitions not to play around the pool unsupervised? Many thanks.


What Should Law Schools Become?: Over at, a mob of bloggers is mobblogging this very topic.

"And It’s Dangerous for Our Children to Even Know That Your Philosophy Exists!"

"Get out of that seat!" "You have no right to be here!" That's from Illinois Assemblywoman Monique Davis berating a witness:

Davis: ... What you have to spew and spread is extremely dangerous, it’s dangerous--

[Witness]: What’s dangerous, ma’am?

Davis: It’s dangerous to the progression of this state. And it’s dangerous for our children to even know that your philosophy exists! Now you will go to court to fight kids to have the opportunity to be quiet for a minute. But damn if you’ll go to [court] to fight for them to keep guns out of their hands. I am fed up! Get out of that seat!

[Witness]: Thank you for sharing your perspective with me, and I’m sure that if this matter does go to court---

Davis: You have no right to be here! We believe in something. You believe in destroying! You believe in destroying what this state was built upon.

What's the philosophy that is dangerous for Illinois children to even know about? Advocacy of child molestation? Of mass suicide?

No, it's the belief that there's not really much evidence for the existence of God, and that we shouldn't believe things for which there's that little evidence. This belief (also known roughly as atheism), besides being an eminently serious challenge to theistic beliefs, is also a belief that has to be known about in order to understand vast chunks of history and philosophical thinking (just as Christianity or Islam must be known about in order to understand vast chunks of history and philosophical thinking). Yet Rep. Davis thinks her children (and apparently the people in the House State Government Administration Committee hearing) need to be shielded from this Dangerous Thinking.

For more of the transcript, see here; for the audio, see here; for the story related to the specific object of the witness's testimony (which doesn't seem to be the target of Rep. Davis's tirade), see here.

The story was apparently broken Thursday by Eric Zorn, a Chicago Tribune metro columnist on his blog. The witness was atheist activist Rob Sherman, who continued with his testimony. I have found no mainstream media coverage of Rep. Davis's outburst other than in the Tribune on Sunday.


Polizzi, the Role of Judges, and the Role of Juries: In the comment thread to my post on Judge Weinstein's Polizzi opinion, former Weinstein clerk and now super-blogger Marty Lederman asks the following question:
If you're right about application of Rodriguez de Quijas here, the decision will be reversed. Big deal (and it surely wouldn't come as a surprise to the Judge). More to the point: Let's say, for argument's sake ;-), that the principal purpose of the Judge's opinion here is not to withstand appellate reversal, but instead to get folks, and the SCOTUS in particular, to take much more seriously the idea, once prominent but now disfavored, that jury nullification, and juries' application of the community's moral judgment more broadly, is a critically important function of the jury and reason for the constitutional jury right.

Is the Judge correct? Should the SCOTUS follow his lead?
  My response is that if Judge Weinstein wants to 'start a conversation' about jury nullification, he has many legitimate ways of doing so other than ignoring the rule of law that he has sworn to uphold. Judge Weinstein can write a law review article; he can write a book; he can make speeches to law student groups and lawyer's associations. Judge Weinstein is an influential figure. Surely he does not lack for outlets to make his views known.

  On the other hand, Judge Weinstein should not intentionally rule incorrectly in order to pursue a personal campaign to get the law changed more to his personal liking. When the law requires the judge to rule one way, he must do it.

  What's the harm, Marty asks? The cost of the appellate process is one harm, but I agree that's not such a big deal in the grand scheme of things. What is a big deal is the corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law. It cheapens the law and presents it as a game to be pursued for other purposes, an attitude that other players in the system are happy to pick up on and use to further their own agendas (cough, John Yoo, cough). I think that's genuinely harmful.

  As for the merits of telling the jury about sentences, this is a very old debate and I don't have much to add. One point worth making is that if juries are going to get more information to help them "do justice," then this should occur across the board. The traditional view has been that criminal trials are highly stylized: The jury is told only certain things in order to focus them on the facts. If we replace that with a "do justice" model, then the jury should also hear a lot of things beyond the sentence. For example, the jury presumably should also hear about the defendant's past convictions and other bad things the defendant has done. Perhaps evidence rules designed to keep the jury from hearing prejudicial things should be relaxed, too. If we really trust the jury to "do the right thing" with all the evidence, we shouldn't hide these things from them.

  I think such a shift would hurt criminal defendants on the whole, and I don't support it. But if we want to give the jury more evidence and push them to do justice, I think they should get to hear both what the defendant wants them to hear and what he doesn't.

Where the Justices Lived in 1932: A few years ago, I bought a copy of The Literary Digest's Political Cyclopedia (1932), a book of political and statistical information on the state of the U.S. Government and major political questions of the day. The book includes the home addresses of most of the government officials it names, including all the members of Congress, the Justices of the Supreme Court, and even the DC U.S. Attorney's Office.

  I thought readers familiar with the DC area might be interested in knowing where the Justices of 1932 lived (all addresses are in Northwest DC):
Chief Justice Charles Evan Hughes, 2223 R Street
Justice Willis Van Devanter, 2101 Connecticut Ave.
Justice James Clark McReynolds, The Rochambeau
Justice Louis Dembitz Brandeis, 2205 California Ave.
Justice George Sutherland, 2029 Connecticut Ave.
Justice Pierce Butler, 1229 19th Street
Justice Harlan F. Stone, 2340 Wyoming Ave.
Justice Owen J. Roberts, 1401 31st Street
Justice Benjamin Cardozo, The Mayflower
  I don't know where the Rochambeau was, but it seems like about half the Justices lived within a few blocks of each other in the very tony Kalaroma Triangle area.

"Leading Cases in the Bible":

An interesting 1905 book for those who are interested in the Bible as a reflection of legal institutions and legal attitudes of the era, from the perspective of a lawyer rather than a social historian or theologian.

Thanks to Joel Sogol for the pointer.


Democracy and International Human Rights Law:

My new paper on "Democracy and Human Rights Law," coauthored with Northwestern law professor John McGinnis, is now available on SSRN. The paper - which is currently under submission to law reviews - continues our analysis of the implications of the undemocratic origins of much of modern international law, begun in our Stanford Law Review article last year. The paper is highly relevant to recent debates over the Medellin case, and the United Nations Human Rights Council's efforts to establish an international law norm restricting speech that supposedly "defames" religion. Here are some excerpts from the abstract:

The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies....

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms in with respect to "hate speech," the "humanitarian" law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights . . . leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments . . .

As we discuss in the paper, our position differs from the Bush Administration's view that adherence to human rights law (at least in wartime) should be at the virtually complete discretion of the executive. In our view, the executive is bound by domestic human rights restrictions imposed by the Constitution or by Congress and by international law duly ratified through the treaty ratification process in a way that indicates Congress' intent to impose an enforcable legal rule. However, the best way to address executive abuses is through judicial and congressional enforcement of US domestic law, not through imposition of unratified international law norms that are likely to be inferior to the domestic law they displace.


No "Laissez Faire" at Starbucks:

Starbucks allows its customers to purchase somewhat customized Starbucks cards. As David Boaz reports, it's okay to get a card emblazoned with the slogan "People not Profits" or "Si Se Puede," but not "Laissez Faire." The former is just fine, but Starbucks finds the latter to be "inappropriate." Apparently the folks at Starbucks (and Arroweye, the company that processes the cards) find it unacceptable that some of their customers want to celebrate the economic system that has allowed for their success. Makes me wish I'd gone to Caribou Coffee this morning instead.

Related Posts (on one page):

  1. Starbucks Now Accepts "Laissez Faire":
  2. No "Laissez Faire" at Starbucks:

President Barr?

The AP reports that former Congressman Bob Barr has formed a presidential exploratory committee in preparation for a possible run as the Libertarian Party candidate for President.


Thoughts on United States v. Polizzi: I have now looked over Judge Jack Weinstein's opinion in United States v. Polizzi, the case I mentioned on Friday that granted a new trial on a child porn charge on the ground that the jury had not been informed of the mandatory minimum sentence the defendant would receive if convicted. I wanted to blog some thoughts about the case.

   Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

  As Judge Weinstein sees it, these new Sixth Amendment precedents demand new rules for jury trials that are more in sync with the new spirit of the jury trial. Judge Weinstein concludes that in the new world of a reinvigorated Sixth Amendment, the jury should hear about mandatory minimum sentences such as Polizzi's:
  Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary “slack into the enforcement of law.” United States ex rel McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942). It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” Id.; see, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L. J. 379, 426 (2007) (providing other supporting citations); Appendix A, infra.
  In Harry Kalven, Jr. and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” Id. at 495. “It . . . will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” Id. See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra)). Above all, the experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment.
  Judge Weinstein concludes that his failure not to tell the jury about the mandatory minimum was prejudicial, as he thinks the jury would have engaged in jury nullification if he had told the jury of the sentence. Thus the defendant gets a new trial on this count.

  The most obvious difficulty with Judge Weinstein's decsion is that the perceived spirit of the Supreme Court's latest decisions doesn't trump otherwise binding precedents simply because older precedents may be in some conceptual tension with new cases. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And even if they did, I don't see the inconsistency between the new Sixth Amendment decisions and the traditional rules on what the jury is told about sentences. The new cases like Blakely and Booker concern whether the judge or jury finds the facts. By contrast, this case is about whether instructions should facilitate or encourage the jury to ignore the facts. That's a very different set of questions. The fact that one line of cases gives power to jurors and the other keeps it away from them does not make the two lines of cases inconsistent.

  Finally, given my own scholarly interests I should note that Judge Weinstein spends about 30 pages ruminating about how the Fourth Amendment applies to the Internet. I'm pleased that he is interested in the topic, but I fear that his free-ranging essay appears to be based on a misunderstanding about how the Fourth Amendment works. As best I can tell, Judge Weinstein appears to assume that an expectation of privacy online is "reasonable" when a lot of people have it — a view that leads him to think that there needs to be field of empirical research on what expectations people have online and to also think that the ECPA statute is an important indicator of Fourth Amendment protection online.

  This is incorrect as a matter of Fourth Amendment law, I think; in my view, both public opinion about their expectations online and the scope of the ECPA statute are totally irrelevant. To be clear, Judge Weinstein properly rules that there is no Fourth Amendment protection for basic subscriber information, which is the very limited and specific issue the defendant raised. But how he gets there and all the stuff he says along the way is pretty far off the reservation, I think. This is the classic problem when judges want to answer a lot more than the case before them raises; the risks of error are high, even if the judge is writing with the best of intentions and is trying to get it right.

Sunday, April 6, 2008

[Charles Lane, guest-blogging, April 6, 2008 at 11:34pm] Trackbacks
More on Reconstruction Judges

I've received an unexpected but gratifying outpouring of interest in my notion of a proper memorial for James Roswell Beckwith, the prosecutor-hero of my new book, The Day Freedom Died. I'll be trying to organize something appropriate in the months ahead.

It got me thinking: Beckwith is hardly the only Reconstruction-era figure whose efforts on behalf of racial justice have gone uncredited by history. This is not an accident, of course: the historiography of Reconstruction was dominated until the 1950s by apologists for the white supremacist South. The distortions were not limited to Birth of a Nation; nor were they produced only by southerners. William Archibald Dunning, a New Jerseyite who taught at Columbia, founded the "Dunning School" of anti-Reconstruction analysis.

It has taken decades to scrub American history clean of this wretched stuff. And as the obscurity of men like Beckwith demonstrates, there is still plenty of work to be done. One area that is especially ripe for revisionism is the reputation of Republican federal jurists of the era, including a triumvirate involved in the Colfax Massacre and other Klan-related cases.

My favorite is Hugh Lennox Bond, the first-ever United States judge for the 4th Circuit. A Marylander who opposed slavery before the Civil War in that most pro-slavery of Union states, Bond presided over the Ku Klux Klan trials in South Carolina in 1871 and 1872, shrewdly deflecting the defense's efforts to have the prosecution declared unconstitutional, even as he assured a fair trial for the accused. His reward for this is utter obscurity even in his home state. When I inquired with members of the state's current high court and a former dean of the state's principal law school, no one had even heard of him — whereas Roger Brooke Taney has a statue on the grounds of the state capitol in Annapolis.

Then there is Judge Edward H. Durell, a transplanted New Hampshireite who came to New Orleans decades before the war. A prolific writer, brilliant lawyer and progressive politician, he helped develop New Orleans' pathetic public infrastructure during the 1850s. As US district judge for Louisiana after the war, he was widely known as a fair and talented decider of cases — until the disputed 1872 state election, in which he ordered the rightfully elected Republican ticket seated. His action triggered a torrent of white supremacist calumny, including false accusations that he was an alcoholic or worse. Once the Democrats retook the US House in 1874, they moved to impeach Durell out of pure revenge; he was forced to resign and flee to New York. Alas, many of the falsehoods uttered about Durell became incorporated into the histories of those years, including (unintentionally, I'm sure) those written by revisionist historians.

Finally, a tip of the hat to William B. Woods, who presided over the Colfax Massacre trial as US judge for the 5th Circuit. The circuit courts were in their infancy in those days. They were not appellate courts as today, but rather an extra layer of trial courts designed by Congress in 1869 both to reduce Supreme Court circuit-riding and to create an alternative to Andrew Johnson's conservative District Court appointees in the South. Woods was a Democrat before the war, and served as speaker of the Ohio House, in which position he initially opposed Lincoln's war policies. But soon he switched to the Union side, and served with distinction as a general in the US Army.

After the war, Woods stayed in the South, settling in Mobile, Alabama. He was an honest and determined judge, who kept the Colfax trials fair, despite the pressure of the mobs swirling in New Orleans. Woods was privately convinced of the defendants' guilt, of course, and upheld Beckwith's indictments from legal challenge — until Justice Joseph Bradley popped down from Washington to undo the verdicts, and, with them, Woods' hard, dangerous work.

Woods became a member of the Supreme Court in early 1881 — Rutherford B. Hayes' last appointee. Alas, in this role he wrote the court's execrable opinion in US v. Harris. But, in his defense, it should probably be said that his hands were pretty much tied by this time — both legally and politically — by the court's previous decisions interpreting the Civil War amendments.


The Federal Reserve Board and the Unitary Executive:

Marty Lederman and Jack Balkin recently took advocates of the unitary executive theory to task for downplaying the fact that their position implies that the Federal Reserve Board is unconstitutional. Michael Rappaport, a defender of the unitary executive theory, agrees that the Fed is indeed unconstitutional under his approach, but argues that courts should avoid invalidating it because of respect for a precedent that has attracted such broad support that a court decision striking down the Fed would probably lead to the enactment of a constitutional amendment. Just to clarify, Balkin, Lederman, Rappaport and I are all using the term "unitary executive" in the sense I expounded in this post (presidential control of executive branch personnel, including the ability to hire and fire at will), not in the sense sometimes used by the Bush Administration to mean an executive with virtually unlimited wartime authority. As I explained in the earlier post, the unitary executive is a theory of the distribution of executive power, not of its scope. It is perfectly consistent to believe (as I do) that executive power is strictly limited, but also concentrated in the hands of the president.

I think Balkin and Lederman are right in so far as the Federal Reserve really is unconstitutional if you believe in the unitary executive. That theory holds that all executive branch officials must be subject to the orders of the president and be removable by him. Under current law, members of the Federal Reserve Board need not obey presidential orders and can't be fired by the president except "for cause" (with refusal to obey presidential directives not considered a sufficient cause in and of itself).

However, I don't think that the unconstitutionality of the Fed is as powerful an argument against unitary executive theory as Balkin and Lederman suggest. There is good reason to believe that a judicial invalidation of the Fed wouldn't be nearly as harmful as conventional wisdom suggests.

First, as Rappaport implies, the independent Fed now has broad bipartisan support. Even under the highly restrictive requirements of Article V, it is likely that a constitutional amendment legalizing the Fed could quickly be enacted. Indeed, given how long it would take for a case to reach the Supreme Court, the amendment could well be enacted even before the hypothetical case got to the supremes.

Second, as Steve Calabresi has pointed out, even if the Fed were not formally independent, the president would come under heavy political pressure to minimize politicization of its operations. Any sign of presidential manipulation of the Fed would likely draw a negative reaction from the stock market and private banks, thereby increasing the risk of recession. In practice, presidents probably would sometimes try to intervene in Fed operations if they had the power to do so. But they wouldn't do it nearly as often as the doomsayers claim.

Finally, while I'm no monetary economist, I'm far from persuaded that the economy would suffer severe damage in the absence of an independent Fed. The Fed has made serious mistakes in its time, including those that likely played a major role in causing the Great Depression. I'm not at all convinced that giving a small group of insulated government technocrats control over such an important part of the economy as the money supply is really the best available option. No matter how skillful they are, there is always a serious risk that they will commit a devastating error, or even engage in deliberate malfeasance out of partisan motives. I may well be missing something. But I see no reason why socialist central planning of the money supply is likely to be much better than similar central planning of other parts of the economy. As I said, I'm no expert on the subject, but my libertarian instincts suggest that a system of competing privately issued currencies (as advocated by economists such as Lawrence White and F.A. Hayek) would be far less risky. Ineptness or misconduct by the issuers of any one currency could not bring down an entire economy based on free banking. Moreover, as White and Hayek argue, each issuing bank would have a strong financial incentive to maintain the value and reputation of their currency. Not so with our current system, where the errors of the Fed can indeed damage the entire economy, and the members of the Reserve Board cannot profit from making good decisions.


Sunday Song Lyric: For some reason, "The Torture Never Stops," by the legendary Frank Zappa, seems an appropriate song lyric for this week. The song begins:
Flies all green and buzzin',
in this dungeon of despair.
Prisoners grumble and piss their clothes,
and scratch their matted hair.
A tiny light, from a window hole,
a hundred yards away,
is all they ever gets to know
about the regular light in the day.
The full lyrics can be found here.

Volokh March Madness Finals.--

Well, the first Volokh Conspiracy March Madness contest is down to the final game and it's between me and Molechaser (out of 252 entries). At the moment, I lead Molechacer by 16 points, but with 32 points awarded for the winner of the championship game, one of us will beat the other by a wide point margin.

In short, if Kansas wins, I win; if Memphis wins, Molechaser wins. Good luck to Molechaser!