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Saturday, April 19, 2008

Learn Something New Every Day:

"George Washington ... so quickly tired of the infighting among his Cabinet and vagaries of public opinion that he stepped down from the presidency after a single term," says an L.A. Times article, in the course of discussing HBO's John Adams biography. And here I thought he had served from 1789 to 1797, which is to say two terms (though the first was a titch short, starting on April 30 rather than March 4).

Related Posts (on one page):

  1. L.A. Times Writer Apologizes for George Washington Error:
  2. Learn Something New Every Day:
43 Comments

Regrettably, Rhodes Returns to Radio

Almost as soon as Air America stopped carrying Randi Rhodes, Clear Channel picked up her program. In my colunm for today's Rocky Mountain News, I bemoan the fact that she attracts a much larger audience than did thoughtful radio hosts such as Gary Hart and Mario Cuomo.

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Hamas Attack on Gaza Crossing:

"The crossing is used for agricultural produce and to send humanitarian aid into the Gaza Strip." There have been several attacks recently by "militants" on the crossing used to send fuel and food into Gaza. They are playing a "heads we win, tails you lose game." Keep the crossings open, and we'll kill Israelis. Close them, and the wrath of the "international community" will come down on Israel for a "humanitarian disaster" in Gaza. Whether or not the people of Gaza suffer and starve appears to be of much greater concern to the Israeli government than to Hamas.

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Friday, April 18, 2008

Yoo and the Politics of International Law Scholarship:

The controversy over John Yoo's appointment at tenure involves, on one side, individuals who claim that his role in the "torture memos" shows him to be so incompetent, unethical, and/or immoral, that he should not be permitted to retain his position at Berkeley. On the other side, everyone from Brian Leiter to co-conspirator Jonathan Adler argue that the underlying complaint against Yoo is political, and it would be a violation of Yoo's academic freedom to threaten his tenure in the absence of an outside judgment by a bar association or court of law that he did anything beyond issuing very controversial legal advice.

My own contribution to this debate (I also wrote about the substance of a similar controversy involving Professor Delahunty in 2006, and I won't repeat my thoughts here) is going to be on the context in which this debate arises, which is that there is evidence of a strong, albeit informal, movement, among segments of the international law establishment in American law schools to decree certain "conservative" positions on international law beyond the pale of reasonable debate. I have two specific incidents in mind. My knowledge of these is based on hearsay, so I will not name the allegedly guilty parties.

First, a leading light of the international law academic establishment was asked to write a review of an entry-level international law candidate. The letter acknowledged that the candidate was bright and thoughtful, and would likely be a productive scholar, but urged the school requesting the letter not to hire the candidate because his views were too "conservative."

The second, more recent, incident arose when a candidate was being considered for a appointment at a prominent law school. All was going smoothly, until this candidate published a paper taking a controversial, though I think eminently defensible, position, on a current international law controversy. The existing international law faculty at this school swiftly rose to oppose this candidate, solely on the grounds that they were upset at the position taken in this paper, which was contrary to the "politically correct" view among left-wing international law scholars. According to my sources, the offer never materialized because of this opposition.

While Leiter is correct that it's rare for "'liberal' politicians and interest groups outside universities" to "successfully mobilize to get someone fired or even threatened that person's tenure because of conservative views," (but see, e.g., the case of UT lawprof Lino Graglia, who uttered what some deemed "insensitive" or "offensive" remarks relating to affirmative action; the result was, among other things, "Rev. Jesse Jackson flying down to Austin and a member of the (University of Texas) board of regents and a number of senators calling for him to resign"; not to mention the looming threat of "harassment" complaints and accompanying punishment at most universities if one deviates from certain orthodoxies) that's largely because academia is so dominated by the left that existing faculty have the power to deny someone a position, or tenure, to begin with if he exceeds the boundaries of what they consider acceptable discourse. One is not likely (to say the least) to get a job in a Women's Studies department if one is known to have anti-feminist views, no matter how scholarly and brilliantly argued, and, as I've noted before, as the Larry Summers fiasco at Harvard shows, anyone who wants to be president of a major university better not step outside the boundaries of political correctness.

Anyway, if the stories I've heard have been accurately described to me, Yoo is the least of one's worries about academic freedom with regard to international law. Yoo has tenure, so even claims that he is complicit in war crimes and so forth is unlikely to result in any consequences to his academic career, unless and until a bar association or other relevant disciplinary body finds that he violated his ethical duties as an attorney. But pity the entry-level or lateral candidate who dares to challenge the accepted beliefs of what I have previously termed "the cult of international law." Fortunately, legal academia is not completely closed to such individuals, but I'd hardly recommend it to an aspiring law professor.

Related Posts (on one page):

  1. Yoo and the Politics of International Law Scholarship:
  2. Brian Leiter Understands Academic Freedom
132 Comments

French Proposal To Outlaw "Propaganda ... In Favor of ... [Dangerously] Excessive Thinness":

A French bill (No. 791, April 9, 2008), would provide (translation by my brother Sasha):

"Art. 223-14-1. The fact of provoking a person to seek an excessive thinness by encouraging prolonged dietary restrictions having for effect to expose him to a danger of death or to directly compromise his health is punished by two years of imprisonment and 30,000 euros of fine. The penalties are increased to three years of imprisonment and 45,000 euros of fine when this seeking of excessive thinness has provoked the death of the person.

"Art. 223-14-2. Propaganda or publicity, whatever the method, in favor of products, objects, or methods recommended as means of achieving an excessive thinness having for effect to directly compromise health, is punished by two years of imprisonment and 30,000 euros of fine."

The New York Times reports that the law is supported by the government's health minister, and backed by President Sarkozy's party. "As written, the proposed French law does not make it clear who would be ultimately responsible for the content of such sites — the content creator or the Internet service hosting the site." "[T]he French legislators are seeking to tame a murky world of some 400 sites extolling 'ana' and 'mia,' nicknames for anorexia and bulimia."

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The Yale Cause or the Yale Effect?: Maybe I'm just missing something, but isn't the most likely explanation for the apparent link between hiring Yale Law clerks and getting questioned or reversed that the trial judges who don't care much about getting reversed also are unusually likely to hire Yale Law clerks?

  This is anecdotal, but my sense is that a pretty specific group of trial judges regularly hires Yalies, and that these judges are unusually likely to see themselves as pathbreaking judges who chafe against what the appellate courts tell them to do. If their politics line up correctly, Yale students will often see these judges as heroes of the law and want to clerk for them in part because they "push the limits of the law" (a.k.a. make stuff up that seems cool) in ways that often lead to reversal.

  If I'm right about that, hiring Yale clerks will be a consequence of being reversal-prone rather than a cause of it. That doesn't mean that Yale graduates will be as good at identifying and following the law as graduates of other schools. But I'm not sure this paper sheds light on that question given the likely direction of causation.
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The Yale Clerk Effect:

I just read the paper that Stuart just noted; I'm not econometrician enough to tell whether the analysis is sound, but I'd love to hear from those who are.

Note, though, that even if the statistical analysis is correct (which it might be), this still doesn't tell us why this effect is present (as the paper makes clear). One possible reason, which the paper points to, is the conventional wisdom that Yale students learn a lot of theory but not a lot of doctrine.

But there are other possible reasons. For instance, perhaps Yale has such an excellent reputation that Yalies who are relatively far down in the class get more clerkships than comparably ranked students at comparable quality schools. (I have indeed heard that this is the case, though I have no hard data on the subject except for this appellate clerk data.)

Say, for instance, that the Yale district court clerks generally come from the 25th to 75th percentile at Yale, and on average represent the 50th percentile. But say the Harvard district court clerks on average represent the 55th to 85th percentile at Harvard, and on average represent the 70th percentile. And say the Yale and Harvard student bodies are on average comparably good (or perhaps even that Yale is on average better, but only by a little), so that the people at the 50th percentile at Yale are a little less good at legal analysis than the people at the 70th percentile at Harvard.

The higher reversal rate associated with Yale clerks may then just reflect the lower average quality of Yale clerks, not the lower average quality of Yale graduates or of a Yale education. And this lower quality would flow from the school's reputation exceeding its actual merits (even if its merits are very great).

Likewise, the paper itself points to some other possible explanations, for instance "a grading system that is not sufficiently partitioned to allow judges to identify the quality of applicants": "Officially, there's a system of honors, pass, low pass and fail, but three-quarters or more of the class gets a pass, and professors rarely give out low passes ...." That too would be a way in which the average quality of Yale clerks might be lower than the average quality of other clerks (if it is), even though the average quality of the entire Yale class might be as good or better as that of other schools' classes.

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"Want Your Opinions Questioned or Reversed? Hire a Yale Clerk":

That's the title of a paper that Royce de Rohan Barondes has posted on SSRN. Here's the abstract:

This paper analyzes the relationship between the law schools attended by non-permanent judicial clerks and the frequencies of two adverse signals assigned by Shepard's to their judges' opinions: either a negative (warning) signal (roughly equivalent to reversal) or a signal indicating the opinion's validity has been questioned. Using a sample of 12,966 opinions written by 95 federal district court judges, the portion of a judge's non-permanent clerks from Yale Law School is found to be positively related to the likelihood the opinion will have a negative (warning) or questioned signal, which is statistically significant at the 1% level. There is a negative relationship between the average reputation of the law schools a judge's clerks attended (better reputations being numerically higher) and the likelihood of his or her opinion having a negative or questioned signal, although that relationship is statistically significant in only some contexts.

As a Yale Law alum, I wish I could say that the paper's findings don't ring true. Alas, I cannot.

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Funny Anti-Obama Ad, as Imagined by Slate:

 

Thanks to InstaPundit for the pointer.

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Legislators With Too Much Time on Their Hands:

The Tampa Tribune reports:

The state Senate this week opened discussions on ... replica bull testicles dangling from the back bumpers of vehicles. One senator wants the owners of such swaying baubles to be subject to a $60 fine.

Sen. Carey Baker, R-Eustis, sparked the discussion in the august senate chambers this week. Senators tried not to get too graphic, as a bunch of school children watched from the gallery....

Sen. Victor Crist, a Republican whose district covers part of Hillsborough and Pasco counties, was flabbergasted that the discussion took place at all.

"It was a waste of time," he said this morning. "We have better things to do than sit down and listen to a debate on whether or not someone should be allowed to hang an ornament on their trailer hitch or not.

"To me," he said, "It's a First Amendment right of personal expression as long as it's not rude, crude or lewd, and it has not been proven to be that." ...

The vehicle accessory has spawned a couple of very successful Internet mail order businesses. Your Nutz, a California company, boasts colors including sun-kissed sienna, dark forest green and even electric blue lighted sets that cast an eerie glow....

"Every time this happens," [David Ham, founder and owner of Your Nutz] said, talking of moves to ban the product, "it drives my sales through the roof. I can't thank this lawmaker enough. I'm considering contributing to these guys who are coming up with these bills." ...

"Florida is not the first state to do this," [BullsBalls owner John Saller] said. Virginia and New Jersey legislators have tried similar sanctions, and so far all attempts to reel in the replicas have failed, he said.

Oh, and let's praise the Internet for this: "All that is thanks to the Internet, [Ham] said. 'If it wasn't for the Internet,' he said, 'I wouldn't have started this business, and there would not be a testicle industry.'" Another way technology makes the world better.

Thanks to Brian Smith for the pointer.

45 Comments

Chocolate As A Computer Security Threat: Michael Froomkin has the scoop.
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Not a Crime to Photograph Undercover Police Officers:

So says a state prosecutor, dealing with an arrest for this non-crime. According to the Sarasota Herald-Tribune,

Randy Sievert did not commit a crime when he snapped a photo of an undercover Manatee County sheriff's vehicle from the road, a state prosecutor said this week in a case that has drawn national attention.

Deputies confronted Sievert in February and ordered him to erase any photos he took standing at the scene of a drug-related search warrant. Authorities called Sievert a "known" drug dealer whose photos jeopardized officer safety. Sievert, 20, was charged with interfering in a search warrant....

Sievert has been jailed without bail since his arrest; the obstruction charge violated his probation in two drug cases.

A person cannot be charged with obstruction or resisting arrest if the police detention is unlawful, an assistant state attorney, Tony Casoria, said in a memo released this week. Sievert did not physically interfere with the search warrant, the prosecutor said.

Casoria said Sievert "took a photograph in a public place, across the street from the home where law enforcement were conducting their search." ...

In declining to prosecute Sievert, the state pointed to a decision in a federal lawsuit in which a judge awarded a man damages for his arrest for videotaping police.... "The activities of the police, like those of other public officials, are subject to public scrutiny," [the judge in that case wrote]. "Robinson's right to free speech encompasses the right to receive information and ideas."

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Copyrighted to God:

From Karen Marie Handy, a.k.a. Aaliyah Al-Aziz v. United States, 2005 WL 6115381 (Ct. Fed. Cl.), decided May 6, 2005 but — as best I can tell — just posted on Westlaw (paragraph breaks added):

Count I ("Copyright") [of the Complaint] states: "[A]ll materials and written works containing any biblical, historical and religious relevance" and "[a]ny mentioning of my name" are "the sole property and ownership of God .... [and] should have been copyrighted to God." Count II ("Patent") states: "Any patent taken on any goods, services, products with respect to any representation of God, her deity, character, symbol, and any historical person has been blatantly disregarded as to ownership by God only .... [and] should have and be reserved for my approval only."

Count III ("Taking Personal Property") arguably asserts a Fifth Amendment takings claim: "All property contained within the limits of the Earth, its space and such are the sole ownership of God." Counts IV and V ("Miscellaneous Damages") appear to allege further takings claims, violations of the free exercise clause of the First Amendment, and other constitutional violations.

The common denominator in the first three counts, as well as the takings component of Count IV, is that God's rights in various property interests have been injured in some way. Plaintiff lacks standing to bring such claims, however.... It is clear from plaintiff's complaint ... that she does not claim to have suffered an "injury in fact" for herself, but on behalf of a third party--God.

It should be noted that plaintiff attempted to cure this defect. In a document dated April 6, 2005, which the court treated as a response to defendant's motion, plaintiff states: "To make the following statement very clear to you, I am God, Allah, as stated before, I will not tolerate being referenced to as anyone other than that." This mere allegation, however, is insufficient to satisfy standing requirements. Further, weighing any evidence pertaining to the truth of this statement would involve a nonjusticiable matter....

The various other constitutional claims contained in Counts IV and V are also beyond this court's jurisdiction. See United States v. Mitchell, 463 U.S. 206, 218 (1983) (holding that this court's jurisdiction is limited to cases in which the Constitution or a federal statute mandates the payment of money)....

34 Comments

[Cass Sunstein, guest-blogging, April 18, 2008 at 10:13am] Trackbacks
A Real Third Way, Plus Some Responses

For a long time, the nation has been split between two types: old-style Democrats, favoring mandates and bans, and new(ish)-style Republicans, insisting that markets and free choice should be respected. Richard Thaler and I think that there is a way to avoid mandates and bans, and to respect free choice, while also helping people to make better decisions.

In short, we hope that libertarian paternalism might provide a real third way, one that recognizes the best in Hayek and Friedman while also noticing the work of Simon, Kahneman, and Tversky (and Thaler), which shows that human beings often choose poorly. Thus, for example, libertarian paternalism offers fresh ways of thinking about the mortgage crisis, credit card reform, savings for retirement, prescription drugs, health care, environmental law, and even marriage. In all these contexts, a few nudges could help a lot.

I'm most grateful for the many excellent comments and objections here; I've read them all with care. By way of conclusion, let me try to respond to just a few of the most prominent, with the hope of a continuing discussion.

1. Objection (made on the Becker-Posner blog as well): Libertarian paternalism is an oxymoron.

Answer: It is not. The approach is libertarian in the sense that it preserves freedom of choice. It is paternalistic in the sense that it tries to produce good outcomes for choosers. See, e.g., Save More Tomorrow.

2. Objection: Libertarian paternalism is paternalism is lamb's clothing.

Answer: Because libertarian paternalism preserves freedom of choice, it is different from standard paternalistic approaches. We favor "one-click paternalism," in the form of easy, simple opt-outs.

3. Objection: Libertarian paternalism is a tool of the left; it is the left's newest thing.

Answer: The tool (or tools) can be used by many different types. Many of our own proposals will be more popular with the right, eg school choice and medical malpractice waivers.

4. Objection: Who decides what choices are best?

Answer: The choice architect (private or public). Because choice architecture is inevitable, the "who decides" question is not a good one, at least for our purposes. Cafeterias have to be designed. Default rules have to be developed. Starting points are inevitable.

5. Objection: What about the public choice problem? Aren't public officials subject to the same heuristics and biases as everyone else, and pushed around by interest groups too?

Answer: Agreed, entirely. That's one reason this form of paternalism respects freedom. Wherever a program is in place, or inevitable, libertarian paternalism provides an appealing approach. Recall too that choice architecture, even by government, cannot easily be avoided, in the form of property law, contract law, and tort law. Existing law governing environmental protection, credit markets, labor law, and the family could be improved with a few nudges. Sure, government should privatize in some domains, and libertarian paternalists sometimes call for privatization, to increase freedom.

6. Objection: Libertarian paternalism starts us on a very slippery slope.

Answer: Not if the libertarian condition (easy opt-out) is respected. That should reduce the slipperiness by a lot.

7. Objection: In some domains, we need bans and coercion.

Answer: Sure, at least if third-party effects are serious. And we don't want to repeal the criminal law involving (say) murder and assault. But in most domains, freedom of choice should be the rule (in part for reasons that Hayek developed so powerfully).

8. Objection: Libertarian paternalism is an ugly and confusing term. Ugh!

Answer: Maybe. Probably. Originally we wanted to call the book Libertarian Paternalism, and no one wanted to publish that book. So we called it Nudge.

Thaler and I regard this as a continuing project, in some ways in its early stages, and we're aware of legitimate questions and of room for much more work on these topics. Many thanks to Eugene Volokh for hosting me and to all of you for your terrific comments and emails. We'll keep pondering these issues.

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The Day the Internet Stood Still: This South Park clip is pretty hilarious. Best line: "Don't you get it?!?! There's no Internet to find out why there's no Internet!!!"
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The Connection Between Barack Obama and Bill Ayers.—

I have been looking into the background of links between Barack Obama and Bill Ayers, in particular, their having served together on the board of the Woods Fund for several years.

For those who don't want to read my entire post, I'll start with my conclusion: It seems to me that Obama's serving on the board of the Woods Fund for a few years with a former member of the Weather Underground is not fundamentally different from my serving for more than a decade on a law faculty with one.

For those who are interested in Barack Obama’s contacts with Bill Ayers, the best thing that I’ve seen was published by Ben Smith at Politico in February:

“I can remember being one of a small group of people who came to Bill Ayers’ house to learn that Alice Palmer was stepping down from the senate and running for Congress,” said Dr. Quentin Young, a prominent Chicago physician and advocate for single-payer health care, of the informal gathering at the home of Ayers and his wife, Dohrn. “[Palmer] identified [Obama] as her successor.”

Obama and Palmer “were both there,” he said.

Obama’s connections to Ayers and Dorhn have been noted in some fleeting news coverage in the past. But the visit by Obama to their home — part of a campaign courtship — reflects more extensive interaction than has been previously reported.

95 Comments

Thursday, April 17, 2008

Good Blog Traffic Estimates:

The post on prominent women bloggers made me wonder — is there some good and relatively broad aggregator of blog traffic statistics, besides Truth Laid Bear and Alexa? Truth Laid Bear is good, but it's missing many blogs, and also has some seeming junk data in it. Alexa, as best I can tell, works only with top-level domain names (and may suffer from various self-selection biases).

Can one do better than that, even as roughish estimates? Or is the problem simply that many leading blogs' counters are hidden, and the Truth Laid Bear list is as good as one is going to get?

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Nice Catch from Rachel Lucas:

Megan Carpenter's Glamour magazine blog asks "Why are all the big political bloggers men?," and in the process says this:

Ezra Klein agreed with Amy about the ghettoization of female voices, noting that while male political bloggers are known as "political" bloggers, women are more often known as "feminist" bloggers. "There's this rich and broad feminist blogosphere, which is heavily female and very political, but considered a different sort of animal. Is Jill Filipovic a political blogger? Ann Friedman?" he says. Male bloggers are seen as talking about politics with a universal point of view, but when we women bring our perspective to the field, it's seen as as a minority opinion.

Rachel Lucas responds in some detail, but I particularly liked this response to the passage quoted above:

I clicked on the hyperlinks of both those names to decide for myself if they were “political” and not “feminist” bloggers, and in so doing, I discovered the names of their actual blogs. And I shit you not, these two blogs, which it is apparently so very wrong to label “feminist,” are called:

Feministing.com

and

Feministe.us

Bam. Game over, pal. You lose.

It’s like trying to claim that John Hawkins is unfairly labeled a “right wing news blogger,” and then providing a link to his site, which is called RIGHT WING NEWS. Sure, he writes about things other than right wing news, and those female bloggers write about things other than feminism and even women in general, but not a lot.

Plus, as Rachel Lucas points out, how do you ask "Why are all the big political bloggers men?" and miss Michelle Malkin? And if you mention some of the somewhat lower-traffic but still prominent bloggers, why ignore Megan McArdle and Ann Althouse (an omniblogger, but with a good deal of political and policy content)?

Thanks to InstaPundit for the pointer.

43 Comments

Two More Publications from Recent Graduates in Top 20 Journal:

Apropos my post on this from yesterday, my sister-in-law Hanah Volokh, who was the chief articles editor on the Georgetown Law Journal this past year, reports that during that year the journal accepted for publication William Baude, The Judgment Power, 96 Geo. L.J. (forthcoming August 2008), and Joseph Blocher, School Naming Rights and the First Amendment's Perfect Storm, 96 Geo. L.J. 1 (2008).

Related Posts (on one page):

  1. Two More Publications from Recent Graduates in Top 20 Journal:
  2. Recent Graduate Publishes in Top 20 Law Journal:
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Brian Leiter Understands Academic Freedom

And here he demonstrates that Paul Campos does not.

One point that Leiter makes is particularly worth repeating:

There is lots of speculation that maybe what Yoo did (writing the torture memos) constitutes a crime or legal malpractice. Maybe it does, maybe it doesn't: it is unclear based on the available facts (though, on both counts, the available facts strongly suggest a negative answer, especially as to malpractice). It is not for the University of California at Berkeley to investigate crimes or investigate legal malpractice of its faculty, based on speculations that are, quite clearly in most cases, driven by those who find Yoo's views morally odious. Universities have no competence to carry out such investigations . . . and the mere prospect of such investigations would chill academic work on controversial matters almost totally.

If an institution actually charged with investigating crimes or legal malpractice--e.g., a prosecutor, a court, a congressional committee, a bar disciplinary committee--were to conduct a proper investigation and issue a finding of misconduct that would surely then be grounds for the university to open a disciplinary proceeding. But as things stand, there are no such grounds. . . . most of those chattering about "possible" crimes and malpractice soon make it clear that what they really want is for John Yoo to be punished for his ideas and for the fact that some government officials may have acted on those ideas. That's a standard that violates the First Amendment rights of state university faculty and betrays the moral ideal of academic freedom.

Related Posts (on one page):

  1. Yoo and the Politics of International Law Scholarship:
  2. Brian Leiter Understands Academic Freedom
112 Comments

Why Baze v. Rees Should Not Lead to Endless Litigation: I was interested to see over at Capital Defense Weekly that Deborah Denno and other death penalty critics expect Baze v. Rees to lead to lots of additional capital litigation. I tend to disagree. To see why, let's take a look at the key passage of Baze in Chief Justice Roberts' plurality opinion:
The alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. . . . A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
  As I read this passage, the existing three-drug protocol is constitutional unless the defendant both demonstrates a substantial risk of pain in his own case and also proves that there is a "feasible, readily implemented" alternative that "in fact significantly reduce[s] a substantial risk of severe pain." That means that if a court holds a protocol unconstitutional, it can't do so in the abstract: It has to say exactly what procedure can replace it.

  The requirement that the defendant prove a specific alternative should effectively keep Baze from generating endless litigation. It will force defendants to argue a very specific alternative: Don't kill me like that, kill me like this. If a state wants to litigate the issue and loses, the court will not enjoin the execution but rather will just order the state to execute the person in the different but also "feasible" and "readily implemented" way the defendant has proposed. And the state always has the option of eliminating the issue as a delay tactic: It can always cut off the litigation by just agreeing to the defendant's alternative method of execution.

  This is quite different from method-of-execution claims brought before Baze. In the past, the idea was that the three-drug protocol was unconstitutional but what should replace it was left open. Instead of having a specific alternative, the court was supposed to spend months or even years of study and hearings to determine what should replace it (during which there would be a moratorium on executions). This made states dig in their heels: They had no incentive to change their protocols because the defendants would just claim that the new standard was also unconstitutional.

  That's no longer true post-Baze. Win or lose, the states will have a specific protocol to follow and the executions will go forward.
26 Comments

The House of Lords on Speech "With Which One May Not Be Sympathetic":

The House of Lords decision I discuss below rejected a free speech claim brought by an animal rights group, but in the process reasoned this way (paragraph break added):

In the present case also the proposed advertisement is wholly inoffensive, and one may be sympathetic to the appellant’s aims or some of them. But the issue must be tested with reference to objects with which one may not be sympathetic.

Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms. Parliament was entitled to regard the risk of such adverts as a real danger, none the less so because legislation has up to now prevented its occurrence.

Now I can sympathize with a judge who is just trying to point out that the free speech claim could be raised as to controversial speech as well as less controversial speech — or even trying to point out to liberal readers that the law would apply to conservative speech as well as liberal speech. But is it just me, or is there a pretty distinct tone of personal disapproval with regard to the examples?

The right to bear arms, in the example, wouldn't just be raised by someone; it would be raised by "so-called patriotic groups." "So-called" in this context sounds pretty pejorative, no? The multi-national companies wouldn't just be expressing their views; they'd be seeking to "thwart or delay action," again seemingly something of a pejorative characterization (though not as clearly so as "so-called," I think). And all this speech would be "a real danger."

Now naturally the judges are entitled to their own views about the merits of those who would support the right of the citizens to bear arms. But this just highlights my point, I think: The approach the court upholds, while ostensibly aimed at equality and "level[ing]" "the playing field of debate," simply entrenches elite opinion. Elite judges are worried about "so-called patriotic groups" and attempts to "thwart or delay action." I expect that opinion among the broadcasting elites includes the same or similar prejudices. Groups with outsider views can only get into the broadcaster programs with the broadcasting elite's permission; and when they try to pay money instead, the political and judicial elites keep them from doing that, all in the name of leveling.

And one more thing, why just in countries outside the Council of Europe? Wouldn't citizens of the Council of Europe — even "so-called patriotic groups" of such citizens — be entitled to argue for the right to bear arms, at least if the law allowed them to spending money for such "danger[ous]" activity?

UPDATE: Commenter Virginia reminded me of a passage that also struck me, but that I then forgot to stress in this post:

Nor is [a level playing field of debate] achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious.
What's this with "progressive minds"? Is there some good justification for the judges to treat "attractive to progressive minds" as parallel to "true" or "beneficial," which is to say to assume that a "progressive mind" is good and a mind that's skeptical about progress is bad? Or is "progressive mind" in Britain a term that's unrelated to politics, and equally applicable to left-wing minds and right-wing ones? (I recognize the latter might well be possible; please let me know if it is indeed so.)

Related Posts (on one page):

  1. The House of Lords on Speech "With Which One May Not Be Sympathetic":
  2. From Equality-Based Restrictions on Campaign Advertising to Equality-Based Restrictions on Other Kinds of Speech?
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From Equality-Based Restrictions on Campaign Advertising to Equality-Based Restrictions on Other Kinds of Speech?

1. One problem with the "equalization" argument for campaign finance restrictions — especially those applied to independent spending by individuals or organizations — is that their logic reaches considerably beyond campaigns. If fairness concerns justify barring expensive speech aimed at backing or defeating a candidate or ballot measure, why not speech aimed at supporting or opposing broader ideological views (whether abortion rights, gun rights, health care reform, or whatever else)?

After all, changes in public attitudes about issues may quickly affect candidates and ballot measures. More broadly, if broader "constitutional values," such as democratic self-government, justify restraining the spending of some to "level the playing field," one would think that these values would have the same effect in all aspects of democratic self-government — and First Amendment law has of course recognized that rights of "democratic self-government" extend to opinion formation generally and not just to election campaigns.

We see the same when we look at some of the rhetoric of those who would support broad campaign finance speech restrictions. For instance, Justice Stevens justifies his position in favor upholding such restrictions on the grounds that "money is property; it is not speech," and

Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.

Exactly the same argument would apply to political debate generally, and not just election campaigns. (Justice Stevens does try to limit his argument by suggesting that spending might be protected by broader property rights "unrelated to the First Amendment," and by suggesting that his argument wouldn't apply when "the prohibition entirely forecloses a channel of communication"; yet constitutional property rights, especially outside the right to compensation for physical takings, are notoriously weak compared to the First Amendment, and many restrictions could dramatically affect public debate without entirely foreclosing some medium.) Arguments focused on the risk of corrupting politicians through implicit quid pro quo would not apply quite as sharply, but Justice Stevens is obviously going beyond that.

Likewise, Justice Breyer's and Ginsburg's argument for "balanc[ing] interests" where "constitutionally protected interests lie on both sides of the legal equation" — which Justice Breyer applies to election campaign speech — would apply to pre-campaign speech about public issues as well. If "by limiting the size of the largest contributions, [campaign-related] restrictions aim to democratize the influence that money itself may bring to bear upon the electoral process," then by limiting expensive speech on broader public issues, these broader restrictions would aim to democratize the influence that money itself may bring to bear upon the opinion-forming process, and thus indirectly the electoral process. (More on this here.) And of course many of the past and present arguments in favor of the Fairness Doctrine have explicitly urged equality and fairness as justification in favor of coercive regulations related to public debate broadly (regulations that imposed expensive obligations on stations that carried controversial speech, in order to ensure supposedly fair treatment for rival speech).

2. The reason I mention all this now is I just read a remarkable implementation of this very sort of broad speech-restrictive approach, in last month's House of Lords Decision in R v. Secretary of State for Culture, Media and Sport. English law, it turns out, bans all paid "religious or political" advertising on television and radio — and the House of Lords upheld this ban, precisely on the sorts of equality grounds I described above. And this ban is not at all limited to political campaigns; the loser in the court decision was a pro-animal-rights group that wanted to run a "My Mate's a Primate" campaign aimed at "directing public attention towards the use of primates by humans and the threat presented by such use to the survival of primates." (I take it "mate" was used in the British/Commonwealth sense of "friend.")

What was the rationale? The same sort of equality argument that we see commonly made about election-related speech in America:

[I]t is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated.... It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

Now of course the court assures us that there are still "other media ... open to the appellant: newspapers and magazines, direct mailshots, billboards, public meetings and marches." But the court also says (as a justification for the selective ban on radio and television advertising) that "there is a pressing social need for a blanket prohibition of political advertising on television and radio" because of "the greater immediacy and impact of television and radio advertising." So people are free to use other media, but precisely because those media are less effective.

Likewise, the court assures us that "It is the duty of broadcasters to achieve [the] object [of providing for expression of differing views] by presenting balanced programmes in which all lawful views may be ventilated." But that of course just means that public debate is within the power of the media elites that run broadcasters, and that run the government agencies that can pressure broadcasters. Outsider organizations are locked out, unable to broadcast their views the way they choose to express them.

Interestingly, the House of Lords here departs from a 2001 European Court of Human Rights decision that held that bans on political broadcast advertising were indeed unconstitutional.

3. Moreover, one of the judges specifically tied the argument to her rejection of the American free speech model, as exemplified in Buckley v. Valeo:

There was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times: it is estimated that the disputed 2000 elections for President and Congress cost as much as US$3 billion. Attempts to regulate campaign spending are struck down in the name of the First Amendment: “Congress shall make no law ... abridging the freedom of speech, or of the press": see particularly Buckley v [Valeo], 424 US 1 (1976). A fortiori there is no limit to the amount that pressure groups can spend on getting their message across in the most powerful and pervasive media available.

In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. “Within the sphere of democratic politics, we confront each other as moral equals” (Ackerman and Ayres, Voting with Dollars, 2003, p 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality....

So the English judge — and I expect her colleagues as well — saw the connection between the equality rationale for restricting expensive campaign-related speech and the equality rationale for restricting expensive speech more broadly. She flatly rejected Buckley's approach to campaign-related speech. ("There are aspects of the ban on broadcasting political advertisements which no-one disputes: in particular, advertising by candidates for election, or by political parties, whether or not at election times.") And she went from there to rejecting free speech protection for payments for issue-oriented speech more broadly.

So if you're skeptical that the progression I outlined in item 1 would indeed take place in America, keep in mind what has happened in England.

Related Posts (on one page):

  1. The House of Lords on Speech "With Which One May Not Be Sympathetic":
  2. From Equality-Based Restrictions on Campaign Advertising to Equality-Based Restrictions on Other Kinds of Speech?
21 Comments

[Cass Sunstein, guest-blogging, April 17, 2008 at 2:18pm] Trackbacks
Give More Tomorrow and Choice Architecture

Libertarian paternalists and behavioral economists are enthusiastic about the Save More Tomorrow plan, by which employees agree that some portion of their future wage increases will go to savings. Save More Tomorrow helps overcome the two behavioral obstacles of loss aversion and inertia. The plan is making it more likely that many thousands of Americans will have more comfortable retirements.

Those of us who like Save More Tomorrow do not want to require private or public employers to offer the plan. But we hope that it will be made increasingly available as a nudge.

Richard Thaler and I think that it is possible to build on Save More Tomorrow. In Nudge, we observe that many people have strong charitable impulses, and they give less than they might because of inertia. Many of us decide, at one or another time, that we ought to give more, but we fail to do so because time passes and we focus on other things.

A Give More Tomorrow plan might help. The basic idea is to ask people whether they would like to donate a small amount to their favorite charities in the near future, and then agree to increase their donations every year. Such a plan might even be offered through the workplace, in which employers and employees might agree to devote a small percentage of future wage increases to charity. A pilot Give More Tomorrow experiment, conducted by Amy Bremen, has found some exceedingly promising results.

There is a larger point here. Often private and public institutions seek to alter behavior by changing material incentives (sometimes, in the case of government, at taxpayer expense). But the most effective approaches sometimes put material incentives to one side and change what Thaler and I call "choice architecture," which is the background against which people make their decisions. Good choice architects maintain liberty while also making it easy for us, and for what Lincoln called the "better angels" of our nature, to do what we would like to do.

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Thoughts on Baze v. Rees: I finally have Internet access again, and I wanted to blog some thoughts on yesterday's fascinating opinions in Baze v. Rees.

  First, I thought the Roberts plurality opinion, which is the binding decision under the Marks rule, is a pretty sensible solution to the problem. As I read it, it basically says that as long as states are reasonably careful there is no chance of an Eighth Amendment issue. If you're a state official, you pretty much just need to copy Kentucky's version of the protocol and you'll be fine. I thought this was a fairly sensible patch of minimalist middle ground, as it pushes states to do better but shouldn't lead to endless litigation.

  On the whole, I'm not surprised with this outcome. It's pretty much where I expected the Court to be on this issue back in 2006 when I tried to predict what the Supreme Court would do when they reached it. Whether Judge Fogel in California will get the message remains to be seen.

  The Stevens concurring opinion is certainly a throwback to an earlier age. I think Scalia's response was devastating, as the Stevens opinion does seem remarkably uninterested in distinguishing good policy from what the Constitution demands. Perhaps the most puzzling line in Stevens' concurrence was his statement that the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

  The natural comparison to Stevens' concurrence is Justice Blackmun's "no longer tinkering with the machinery of death" opinion in Callins v. Collins in 1994. In case you're wondering, Justice Blackmun published that opinion at the age of 84 after 24 years on the Court. He resigned from the Court about four months later. Justice Stevens published his opinion at the age of 87 (a few days shy of 88), after 32 years on the Court.

  Finally, I thought Justice Thomas's concurring opinion offered a pretty powerful originalist argument. As originally understood, the Eighth Amendment really did speak to these issues, and I thought Thomas did an important service by exploring that understanding in detail. Of course, what you make of Thomas's perspective depends largely on what you think of originalism, as well as what you make of modern Eighth Amendment jurisprudence. It was interesting to compare Thomas's analysis to how Justice Ginsburg dealt with the Court's method-of-execution precedents in her dissent: "Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time."

  A final thought. Both this case and Medellin v. Texas are the kinds of cases that are tricky for a Chief Justice to write in a way that keeps Justice Kennedy on board. In both cases, Chief Justice Roberts succeeded; AMK joined JGR in full and did not write separately.
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Must-Read Scalia Opinion

Justice Scalia's concurring opinion in Baze v. Rees is a must-read. Responding to Justice Steven's newly-minted view that the death penalty is now somehow always a violation of the Eighth Amendment, Justice Scalia marshals the arguments in favor of retribution and deterrence (citing Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L.Rev. 703, 706 (2006), among other sources). His opinion concludes powerfully:

But actually none of this really matters. As Justice STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens' experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

----------------------------------

Amen.

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Obama's Unfavorable Ratings Rising, but still better than Clinton's.--

In the last week, there appears to be a move in Rasmussen national tracking polls in favorable/unfavorable ratings of Barack Obama. In a week, he has gone from about a 52% favorable / 45% unfavorable rating last week to a 47% favorable / 51% unfavorable rating on April 16, i.e., from a 7% plurality to a 4% deficit. McCain’s ratings have not changed much (on April 16, he has a 55% favorable and 42% unfavorable rating).

It is too soon to tell whether this movement is lasting, but if it is, Obama's recent problems may affect the general election more than the Democratic primaries, where his overall numbers do not seem to have deteriorated at all in most polls.

BTW, both McCain and Obama have better favorable / unfavorable ratings than Clinton.

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Obama: On Disowning Rev. Wright.--

Barack Obama spoke about Rev. Wright at the ABC debate on Wednesday night:

OBAMA: ... And, you know, the notion that somehow that the American people are going to be distracted once again by comments not made by me, but somebody who is associated with me that I have disowned, I think doesn't give the American people enough credit.

STEPHANOPOULOS: You've disowned him?

OBAMA: The comments, comments that I've disowned.

[I have changed this quoted exchange to conform to the ABC transcript, linked by Bill Dyer in the comments below. This transcript did not appear in a Google search for the transcript before my original post, but now that it is available, it's best to go with a more accurate and complete text.]

Obama in his March 18, 2008 speech explained why he couldn't disown Rev. Wright:

Obama: “I can no more disown him than I can disown the black community. I can no more disown him than I can my white grandmother . . . ."

It is odd that Obama would use the metaphorical word "disown" to assert the opposite of what he said less than a month ago, not correcting his misstatement until challenged by George Stephanopoulous. [Now that I have a fuller transcript, I see that Obama may well have been referring to disowning the remarks, rather than the person, all along. The transcript is ambiguous on this point.]

I don't envy politicians; they run the risk of being attacked every time they open their mouths.

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Obama Doesn't "Exchange Ideas" with an Unrepentant Ex-Domestic Terrorist

... "on a regular basis".

Boy, that wasn't a good answer.

It didn't help that Obama followed up by analogizing Bill Ayers, the domestic terrorist in question, to a fellow Senator who vociferously opposes abortion, with whom Obama is also friendly. One man advocates legislation to criminalize abortion, the other is an unrepentant ex-terrorist from the Weather Underground, there is no difference in moral judgment in deciding to befriend either of them, right? (H/T Instapundit).

UPDATE: A reader protests, "Obama specifically mentioned [Sen. Tom] Coburn's statement that capital punishment is appropriate for abortionists. The issue is that Coburn advocated killing people for something Obama doesn't even believe should be illegal."

But the main reason people might be troubled by Obama's friendship with Ayers is not because Ayers has radical political views, but because he's an unrepentant ex-terrorist. The analogy would hold water only if Cockburn had been involved in bombing abortion clinics, escaped prosecution, and now publicly says, "I don't regret setting bombs. I feel we didn't do enough."

And now that the transcript is available, you can read the full context.

Moderator: And I want to give Senator Clinton a chance to respond, but first a follow-up on this issue, general theme of patriotism, in your relationships. A gentleman named William Ayers. He was part of the Weather Underground in the 1970s. They bombed the Pentagon, the Capitol, and other buildings. He's never apologized for that.

And, in fact, on 9/11, he was quoted in the New York Times saying, "I don't regret setting bombs. I feel we didn't do enough." An early organizing meeting for your State Senate campaign was held at his house and your campaign has said you are "friendly."

Can you explain that relationship for the voters and explain to Democrats why it won't be a problem?

OBAMA: George, but this is an example of what I'm talking about. This is a guy who lives in my neighborhood, who's a professor of English in Chicago who I know and who I have not received some official endorsement from. He's not somebody who I exchange ideas from on a regular basis.

And the notion that somehow as a consequence of me knowing somebody who engaged in detestable acts 40 years ago, when I was 8 years old, somehow reflects on me and my values doesn't make much sense, George.

The fact is that I'm also friendly with Tom Coburn, one of the most conservative Republicans in the United States Senate, who, during his campaign, once said that it might be appropriate to apply the death penalty to those who carried out abortions.

Do I need to apologize for Mr. Coburn's statements? Because I certainly don't agree with those, either.

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Wednesday, April 16, 2008

Recent Graduate Publishes in Top 20 Law Journal:

I'm delighted to say that Scott Keller, who just graduated from Texas last year and is clerking for Judge Kozinski this year, has had his new article -- How Courts Can Protect State Autonomy from Federal Administrative Encroachment -- accepted by the Southern California Law Review, through the normal competitive submission process. This reminds me of Randy Kozel, who had his excellent Reconceptualizing Public Employee Speech accepted by the Northwestern Law Review four years ago, when he was also a freshly minted law school graduate (and Kozinski clerk). I'm sure there are quite a few other examples, too, that I don't know about.

So, a congratulations to Scott, and a reminder that recent graduates can indeed get their scholarship published, even in top journals. I suppose the "Clerk to Judge Alex Kozinski" in the author's note can't hurt in the submission process, but I'm pretty sure that it won't itself make that much of a difference -- if you have an excellent piece, you can get it published in a prominent journal even if you don't have an appellate clerkship.

Related Posts (on one page):

  1. Two More Publications from Recent Graduates in Top 20 Journal:
  2. Recent Graduate Publishes in Top 20 Law Journal:
14 Comments

When Irony Becomes Farce:

I'm a big fan of The Innocence Project, which assists individuals unjustly convicted of crimes. But I did a massive double-take when I saw that Janet Reno is on its board of directors. Janet Reno! She bears as much responsibilty as anyone for the child abuse witch hunt trials of the late 80s that claimed many innocent victims, including several prosecuted by her office, via the "Miami method" she pioneered. To my knowledge, Reno has never apologized for what we might euphemistically call the "excesses" of her prosecutorial tactics. But let's let two of her victims speak for themselves, via Frontline:

INTERVIEWER: At the moment of your liberation, had you been able to come face to face with Janet Reno and her prosecutors, what would you have said to them?

GRANT SNOWDEN: I don't have anything to say to them. I want to know what they have to say to me. I want to know what they have to say to me for taking my entire life away from me, 12 years in prison. I lost my children's childhood. I lost my wife, my home, everything that I ever owned. What do they have to say to me? They know they did wrong. They know they maliciously prosecuted me, and they sent me away for something I didn't do. And I'm- I'm not happy about it at all.

INTERVIEWER: If Janet Reno were to come into this room right now, what would you have to say to her? What would you ask her?

BOBBY FIJNJE: "Why?" That would be my one question. "Why? Why did you spend so much money trying to convict a 14-year-old kid? Why- why- why even try to place a kid that's 14 in a maximum-security prison? Why would you even think of doing something like that if you're a crusader for children?"

176 Comments

Should Law Schools Block Internet Access in Classrooms?

The University of Chicago Law School has recently adopted a policy blocking internet access in classrooms (hat tip: my colleague Michael Krauss). Some individual professors at other schools have taken similar steps in their classes. I am of two minds on this. On one hand, law students are adults. They should be able to decide for themselves whether surfing the net has greater value to them than using class time to listen to what the professor is saying. Indeed, if a high percentage of students are surfing regularly, that may be an indication that the professor isn't doing such a great job of teaching.

On the other hand, there are potential negative externalities from in-class surfing. If a lot of students are doing it, and therefore not contributing to class discussion, that will reduce the value of the class for their classmates, not just themselves. This point suggests that there may be some merit to the University of Chicago policy. For now, however, I'm not going to change my own live and let live approach to net surfing in the classroom.

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Richard Epstein on the Didden Pretextual Takings Case:

University of Chicago law professor Richard Epstein has an excellent column discussing recent development in the case of Didden v. Village of Port Chester, the notorious takings case where a politically connected developer was able to get a property condemned because the current owners refused to pay him the $800,000 he demanded as the price for leaving them alone.

Epstein and I earlier joined several other property scholars in filing an amicus brief unsuccessfully urging the Supreme Court to hear this case, which went against the property owners in the Second Circuit on the ground that this kind of government favoritism was permitted under Kelo v. City of New London. In our view, this kind of clearly pretextual taking is forbidden even under Kelo's extremely lax standards. But the Court refused to take the case.

In this column, Epstein points out that not only is the owners' land being taken for indefensible reasons, they also aren't being paid anything approaching adequate compensation for the loss of their property.

Last year, Epstein and I published an op ed further discussing the case in the National Law Journal (full text available now only to subscribers; but this sentence links to excerpts).

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[Cass Sunstein, guest-blogging, April 16, 2008 at 12:26pm] Trackbacks
Social Nudges

Human beings are greatly influenced by the actual or apparent behavior of others. Consider just a few examples:

1. Federal judges on three-judge panels are much affected by the votes of their colleagues. Democratic appointees, sitting with two Republican appointees, show pretty conservative voting patterns. Republican appointees, sitting with two Democratic appointees, show pretty liberal voting patterns. Clinton appointees turn out to look a lot like Bush appointees on DRR panels. And in some areas of law, the political party of the president who appointed the two other judges on the panel is a better predictor of a judge's vote than the political party of the president who appointed that very judge (!).

2. Teenage girls who see that other teenagers are having children are far more likely to become pregnant themselves.

3. Ethnic identification is contagious. When relevant people start to identify in ethnic terms -- in clothing choices, rituals, attitudes -- "ethnification" can spread rapidly throughout a locality or a society.

4. Broadcasters have been found to mimic each other, producing otherwise inexplicable fads in radio and television.

These social nudges are best explained in two ways. First, the behavior of others conveys information about what is true or right or best. Often people lack entirely reliable information, and they base their choices on what others say or do. Second, the behavior of others imposes reputational pressure. If you want to keep people's good opinion, you might want to do what they do.

The four examples given above reflect both sets of influences. Reputational pressures are probably of special importance for (3). (For more detail, see Nudge.)

Social nudges can easily be enlisted by libertarian paternalists, who seek to alter behavior without imposing mandates of any kind. Having failed in various efforts to reduce littering on its highways, Texas adopted an inventive "Don't Mess With Texas" program, in which influential people, including Willie Nelson and players for the Dallas Cowboys, sent strong signals about appropriate behavior. The program has had large effects in reducing litter.

Or consider an intriguing recent experiment designed decrease energy use. In San Marcos, California, people were simply informed about whether they were above-average or below-average users of energy. In the following weeks, the above-average users significantly reduced their use of energy.

The less good news is that the below-average users actually increased their energy use. But a small tweak eliminated this effect. When they were given a happy emotikon, signalling social approval, the below-average users stayed well below average.

Of course there is reason to worry about government efforts in this vein. We could imagine programs that would violate neutrality requirements; consider efforts to promote certain religious practices or political convictions. And here as elsewhere, hard-line libertarians might just want government to stay out. But when government has a legitimate end, and wants to avoid a mandate, social nudges can serve as an immensely effective tool.

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Now There's a Piece of Spam That's Likely To Get Few Results:

"Apartments For Rent in Ulaanbaatar," a message (with photos) that just landed in my mailbox overnight.

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Supreme Court Upholds Execution Protocol: The Supreme Court handed down Baze v. Rees this morning, upholding the three-drug protocol. The opinion is here. I have to hit the road, unfortunately, so I won't be able to blog more on it right away, but it looks like the vote was ultimately 7-2 to allow the protocol. At the same time, he Court was splintered as to the rationale: There was no majority opinion on exactly what the correct standard is for the constitutionality of execution protocols. My sense is that under the Marks rule, however, the Roberts plurality opinion can be treated as the Court's binding opinion. But that's just based on a quick skim. More later, when I'm back at my computer.
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Kennedy v. Louisiana: This morning the Supreme Court is holding argument in Kennedy v. Louisiana, the case on the constitutionality of Louisiana's statute imposing the death penalty for rape of a child. I'll be away from a computer most of the day, but lawprof Corey Rayburn Yung's Sex Crimes blog is providing comprehensive coverage. If you're interested in the Kennedy case, definitely check it out.
31 Comments

Patent Humor:

So when Monster Cable Corp. sent a cease-and-desist letter to Blue Jeans Cable, Inc., alleging that the latter's "Tartan" brand cables infringed various patents belonging to Monster, they may have bitten off more than they can chew. Tuns out that Kurt Denke, President of Blue Jeans, was a lawyer in a former life, and the reply that he sent back to Monster makes for some pretty interesting reading.

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

And speaking of patent humor: If any of you happen to find yourself in Philadelphia on Friday [STEPHEN COLBERT, TAKE NOTE!!] I'm going to be playing over at Doc Watson's bar (11th betw Locust and Walnut) at a Temple Law School "Happy Hour," (5-7 PM), and will present the WORLD PREMIERE PERFORMANCE of "Francis Barnes' Underwear," surely the greatest (because the only) rock and roll song based upon a 19th century patent law case from the Supreme Court. (As you patent aficianados might have guess from the title, the song explicates Egbert v. Lippmann, 104 US 333 (1881), a case holding that an inventor's placement of a single corset-spring into his girlfriend's corset constituted a "public use" of the new spring design). Come on down!

58 Comments

Christopher Buckley's Eulogy for His Father:

Joe Malchow has the text of Christopher Buckley's eulogy delivered at last week's memorial service at St. Patick's Cathedral:

He was — inarguably — a great man. This is, from a son’s perspective, a mixed blessing, because it means having to share him with the wide world. It was often a very mixed blessing when you were out sailing with him. Great men always have too much canvas up. And great men set out from port in conditions that keep lesser men — such as myself — safe and snug on shore.

Read the whole thing here.

I had the experience of meeting William F. Buckley only once, when I sat next to him at a dinner near the end of his life. Every word you have read about him was absolutely true. Although in obviously poor health, he was gracious, witty, kind, and self-deprecating. We talked about Blackford Oakes (and the end to the final Blackford Oakes novel, which I won't spoil here). I don't recall how we got on the topic of Ayn Rand, but the dinner was held in view of Ayn Rand's apartment in New York City and he regaled me with stories about her. Just a marvelous, marvelous man. I wish I had met him more than once, but I thank divine providence that at least I had that opportunity.

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Hearing on "Restoring" the Clean Water Act:

Today the House Transportation and Infrastructure Committee will hold a hearing on the "Clean Water Restoration Act of 2007," a bill to expand the jurisdictional scope of the Clean Water Act by removing any reference to the navigability of waters. Specifically, the bill replaces references to "navigable waters of the United States" with "waters of the United States" so as to assert federal authority over all interstate and intrastate waters and wetlands in the nation. In effect, the aim of the legislation is to overturn the Supreme Court's SWANCC and Rapanos decisions.

I was among those asked to testify on the bill. My testimony is available here. I make three basic points. First, the bill does not "restore" the Clean Water Act, as it could extend to many waters and lands never subject to regulation under the original act. Second, the bill will fail to achieve its stated goal of increasing regulatory certainty, as its vagueness and broad language will spur substantial litigation and controversy as courts struggle to determine the scope of federal authority. And finally, that the bill will not do much to advance environmental protection because it does nothing to focus limited federal regulatory and enforcement resources where they can do the most good.

I hope to post more after the hearing.

13 Comments

Tuesday, April 15, 2008

Sued for Accurately Saying Government Employee Was a Mexican (and Shouldn't Be Employed):

My student Daniel Koontz is writing an article on free speech and the intentional infliction of emotional distress tort, and a draft of his pointed me to this remarkable case, Dominguez v. Stone, 638 P.2d 423 (N.M. App. 1981). It's nearly 30 years old, but it was decided very much during the modern era of free speech law, and it remains cited as precedent as to its general discussion of the emotional distress tort.

Remarkably, the court held that

  1. an elected official could be sued for defamation for accurately saying that a direct of a local program was a Mexican citizen, and

  2. he could be sued for intentional infliction of emotional distress for so saying, and for arguing that non-citizens ought not be employed in this job.

It may well be that it would be unconstitutional to actually discriminate against non-citizens in government job decisions, but surely a government official ought to be entitled to condemn the current state of affairs, even if there's nothing that the government may constitutionally do about that state of affairs. This strikes me as a total violation of First Amendment principles; even if the defendant hadn't raised the First Amendment — possible though unclear — those principles have to be considered by the court in developing the state law of torts. Yet a New Mexico appellate court held precisely that.

And while this story is hardly breaking news, it does show how courts can suppress disfavored viewpoints unless they're assiduously policed by higher courts, as well as what bad precedents there are in some state courts. (Note that, procedurally, the court reversed summary judgment in the defendant's favor, which is to say that the court allowed the plaintiff to take the case to the jury. I can't easily figure out what happened at trial, or whether the case settled, but the reversal of summary judgment announces a legal principle that the defendant's speech could lead to liability.)

In any case, here are the relevant facts:

The plaintiff is a 22 year-old Mexican National having been born in Mexico. She has been legally residing in the United States since she was 3 years of age and now is living in Grants, New Mexico....

Plaintiff was the director of the Senior Citizens Program in the Village of Central, New Mexico on September 16, 1980. Defendant Stone was a member of the Board of Trustees of Central which is its governing body. On September 16, 1980, during a public meeting of the Village Trustees and later during a closed meeting, or executive session of the Village Trustees, the defendant made ... statements ... to the effect that plaintiff was not suited for her employment with the Village of Central because she was a Mexican. Defendant's statements included a statement to the effect that the person performing the duties of program director of the Village of Central Senior Citizens Program should not be a Mexican, part of his reason being that the program is funded with American tax dollars.

The defendant interrogated the plaintiff at the meeting concerning payment of income and property taxes and whether she possessed a green card, whether she applied for United States citizenship, and whether she had registered to vote in the United States. On September 17, 1980, the defendant personally went to the office of the Grant County clerk to determine whether plaintiff was a registered voter. He was told she was not.

DEFAMATION OF REPUTATION

... The trial court dismissed this cause of action in its summary judgment.... "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The question we are confronted with now is whether there is an issue of fact that any of the comments of the defendant lowered the plaintiff's reputation in the estimation of the community, third parties, or her employers, the Board of Trustees.

The defendant contends that he had some sort of immunity to act as he did because he was a member of the Board of Trustees. We disagree. Public officials are not above the law. "The law protects only those who act reasonably and with a reasonable belief of the truth of their remarks." ...

There is evidence in the record from which a jury could conclude that the defendant was prejudiced against the plaintiff and that he was attempting to persuade the Board of Trustees to accept his views and attitudes towards the plaintiff. There is an issue of fact of defamation of reputation in this respect.

It is common knowledge in New Mexico that the word "Mexican" when used in circumstances similar to those in the instant case connotes prejudice and disparagement. It is also common knowledge in this State that, like defendant, many citizens of Mexican and Spanish descent also served in the armed forces, and some gave their lives for this country. Hardly an Hispanic family in New Mexico escaped the anguish of the Bataan Death March in World War II; Hispanics have served bravely in other conflicts as well.

We are not impressed with defendant's contention that because plaintiff is an alien, she should not be employed in Grant County. President Franklin D. Roosevelt, in an address to the Daughters of the American Revolution in 1938, said: "Remember, remember always, that all of us, you and I especially, are descended from immigrants."

We hold that the court erred in granting summary judgment in respect to this cause of action.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." ... "The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ...

We discuss here an identical case to the case at bar:

The court in Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977), held that the Plaintiff had sufficiently stated a cause of action under the tort of outrage as defined by the Washington courts and the Restatement (Second) of Torts, § 46 (1965), where it was alleged that the plaintiff, while in the employ of the defendant corporation, was subjected to intentional or reckless conduct on the part of the defendant's agents and employees which was beyond all reasonable bounds of decency and which caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public, and exposure to scorn and ridicule, when the defendant's agents knew or should have known that by reason of the plaintiff's Mexican nationality and background he was particularly susceptible to emotional distress as a result of the conduct. Noting that liability under the tort of outrage has been recognized in Washington when premised upon outrageous conduct such as alleged in the present case; the Court pointed out that when one in a position of authority over another allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior, the relationship between the parties being a significant factor in determining whether liability should be imposed. The Court stated that where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions through its supervisory personnel or by other means. The Court further observed that as to the various slang epithets that may have once been in common usage regarding Mexican-Americans, it was for the trier of fact to determine, taking into account changing social conditions and the plaintiff's own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage. (Emphasis added.)

We believe and hold, that the testimony of the plaintiff and the defendant which we have quoted in this opinion heretofore and all the evidence in the record do establish that an issue of fact does exist as to this cause of action....

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Can Anybody Win in November?--

Barack Obama’s gaffe in San Francisco reminds me a lot of Gary Hart’s comments disparaging New Jersey in the 1984 election. I see that the Perrspectives blog has been drawing 1984 Hart/Obama parallels even before Obama’s latest mistake:

Locked in a tight contest in New Jersey, Hart and his wife Lee spoke with reporters at a Los Angeles fundraiser. In one moment of carelessness, Hart went from closing fast on Mondale in the Garden State to a 15 point blowout a week later. As Time recalled:

In a classic campaign boner, he exposed his sarcastic side at a fund raiser in Los Angeles. The "bad news," he told a well-heeled audience standing on the lawn of a Bel Air mansion, is that he has to campaign apart from his wife Lee. "The good news for her is that she campaigns in California while I campaign in New Jersey." When Mrs. Hart interjected, "I got to hold a koala bear," Hart sniggered, "I won't tell you what I got to hold: samples from a toxic-waste dump."

(Full disclosure [from Perrspectives]: I not only worked for Gary Hart in 1984, but was at the photo-op at the toxic waste dump in question. While hanging out at the Jersey shore the next summer, I was harangued by a woman who saw my "Gary Hart for President" t-shirt. "I hate him," she said, "because he insulted our state.")

The rest, as they say, is history. Walter Mondale went on to a first ballot victory at the Democratic Convention.

It is hard to see how small-town residents would vote for Obama, which means it will be very difficult for him to get elected. And it seems too late for Clinton to win the nomination without the convention seating her Florida or Michigan delegations (if that happens, Obama supporters — including members of the press –- will be so bitter that it would be hard for Clinton to get elected in November unless Obama joins her on the ticket as VP). Given the economy, McCain’s age, and the unpopularity of Republicans, I don’t see how McCain can get elected.

So I guess nobody can win!

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In the Ninth Circuit, You Can't Blame Him For Trying: Decision of the Day reports on an amusing argument made in a case seeking return of seized property in a drug raid:
  Defendant Tamer Ibrahim was a suspect in an ecstasy distribution ring. And a lucrative one at that. When police raided his apartment, they found $221,000 in a safe, $240,000 in a bag outside the apartment, and almost $30,000 scattered around the apartment. They also found some money on top of a dresser. After Ibrahim was convicted for his role in the drug ring, his presentencing report stated that the amount on top of the dresser was $485,000.. . . .
  [In the appeal,] Ibrahim wants all the money listed in the presentencing report, including the $485,000 supposedly found on the dresser. But the government argues that this was a typo, and that they only found $485 on the dresser. Big difference. Ibrahim argued that the government is now judicially estopped from correcting this typo for asset return purposes, since the larger figure was used in his sentencing. But the Ninth rejects this argument. Ibrahim may be entitled to sentencing relief, but he is certainly not entitled to a $484,515 windfall resulting from a typo. Nice try, though.
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Harvard Hires Every Law Professor in the Country: I missed this story from the April 1st issue of the Harvard Law Record (hat tip: Leiter's Law School Reports):
Harvard Law School's communications office announced today that HLS has hired every law professor in the country, solidifying its position as the preeminent law school in America.

Dean Elena Kagan said that she got the idea from recent additions to the faculty. "As soon as we'd hire one professor from, say, Columbia or Chicago," said Kagan, "he or she would suggest another prize we should grab. We hired two, then three, then finally realized we were only delaying the inevitable. . . .

Harvard completed its monopoly yesterday by hiring the final holdout, William van Alstyne, from William and Mary. Van Alstyne, who had moved to William and Mary from Duke after William and Mary agreed to hire his wife, was swayed after Harvard agreed to hire his wife, three children, 6-year-old grandchild, and his dog, Oliver Wendell Bones, who will all teach legal research and writing. . . .

Said Jack Goldsmith, who was hired by Harvard in 2004 from Virginia, "It's nice to see some of my old colleagues here." Added Goldsmith, "Also, everyone else."



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The New Mexico Human Rights Commission Refuses to Consider Religious Freedom Objection:

It turns out the Commission simply refused to consider Elane Photography's religious exemption claim under the New Mexico Religious Freedom Restoration Act: "To the extent that Elane Photography's arguments in this proceeding sought to raise questions ... as to an automatic preemption of the NMHRA by ... the New Mexico Religious Freedom Restoration Act, those questions are not before the New Mexico Human Rights Commission for determination in this proceeding and, accordingly, are not addressed here."

Is this right? Here's what the New Mexico RFRA says:

[§ 28-22-3:] A government agency shall not restrict a person's free exercise of religion unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. 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.

[§ 28-22-4:] A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding ....

The New Mexico Human Rights Commission is a government agency, and the New Mexico RFRA was indeed raised to it in Elane's brief. Is the theory that § 28-22-4 is seen as exclusive, so that it can only be raised in judicial proceedings and not administrative proceedings? That would seem odd: One would think that given that all government agencies are bound by the state RFRA, even purely executive officials have an obligation to conform their conduct to it, and adjudicatory administrative officials would as well. The Commission doesn't explain its reasoning on this point.

I should note that the California Constitution explicitly bars administrative agency "To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional [or preempted by federal law] unless an appellate court has made a determination that such statute is unconstitutional [or preempted]." But that's a California-specific rule, and even it doesn't bar California agencies from considering the extent to which one state statute carves out a defense to or exceptions from another state statute.

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The Breadth of the New Mexico Human Rights Commission's Rationale:

The New Mexico Human Rights Commission has just issued its opinion concluding that Elane Photography violated New Mexico law by refusing to photograph a same-sex commitment ceremony; and the opinion clarifies a little about the Commission's rationale. (Recall that the order was originally released last week, but the opinion was apparently just delivered to the parties yesterday.)

For instance, the Commission's rationale isn't limited to wedding photographers, who some people argued (wrongly, in my view) aren't really "creative" enough to get First Amendment protection. Rather, it would apply to freelance writers who refuse to write press releases or Web copy for religions they disapprove of. It would apply to professional singers who routinely hire out for a wide range of events (weddings, bar mitzvahs, and so on) but who don't want to sing at events affiliated with some religion, or for that matter at same-sex commitment ceremonies. It would apply to professional portrait painters who accept a broad range of commissions but prefer, whether for artistic or political reasons, to paint only men or only women, or not to paint people of whose religious activities or sexual orientations they disapprove.

After all, here's the entirety of the Commission's discussion of the First Amendment issue:

The United States Supreme Court has considered the provisions of state antidiscrimination laws similar to the provisions of NMHRA and concluded that: "Provisions like these are well within the States usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338, 2346 (1995). The Court has explained that "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent." Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3255 (1984).

That's a judgment that the First Amendment just categorically doesn't apply to these sorts of antidiscrimination provisions, not a judgment specific to wedding photographers.

Of course, the Commission's rationale also seems legally wrong. It's true that Hurley said that antidiscrimination provisions do not as a general matter violate the First Amendment -- but then it went on to hold that such a provision did violate the First Amendment when applied to a parade's exclusion of a float that was identified as connected to a gay/lesbian/bisexual group. Likewise, Boy Scouts of America v. Dale later held (distinguishing Roberts) that such a provision did violate the First Amendment when applied to the Boy Scouts' exclusion of a gay scoutmaster.

So the Court has made clear that the First Amendment may indeed trump antidiscrimination law when applying the antidiscrimination law would interfere with a group's speech or its expressive association. Elaine Huguenin argued applying the antidiscrimination law here would interfere with her freedom from compelled speech. Yet the Commission simply quoted the general statements from Hurley and Roberts without explaining why the well-recognized First Amendment exceptions to those general statements don't apply to Huguenin's claim.

Pretty poor opinion-writing, it seems to me. But in any event, it shows (as I argued above) that the Commission seems to see rights to be free of compelled speech as being irrelevant to its application of public accommodation discrimination law -- which is why I say that the Commission's reasoning would apply equally to the freelance writers, singers, painters, and more.

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Should We Worry About the Declining Percentage of African-American Players in Major League Baseball?

There has been much controversy recently about the supposedly catastrophic decline in the percentage of major league baseball players who are African-Americans. For instance, ESPN has a story lamenting the fact that, this year, only 8.2% of MLB players are black Americans, the lowest percentage in two decades. Baseball does indeed have a long history racial discrimination against black players, to some extent continuing even after Jackie Robinson broke the color line in 1947. But I don't see any serious cause for concern in the current numbers.

First, the figure of 8.2% is only modestly lower than the percentage of African-Americans in the current US population (about 12.7 percent). Moreover, even this comparison is misleading because some 28% of MLB players are foreign-born, including a large number of black players from Latin America. African-Americans are 11.4% of all American-born players in the major leagues, a figure very close to their percentage in the general population. The rapid rise in the number of foreign-born players (many of whom are black themselves) has lowered the percentage of African-American players, just as it has for other American-born players. Back in 1988, only 11% of MLB players were foreign-born, compared to 28% today. The percentage of African-American players has also declined because of the increasing appeal of basketball and football to the top black American athletes (a source of competition that is not a factor in the Latin American and Asian countries that produce most foreign-born MLB players). Several decades ago, football and basketball stars earned much less than top MLB players. Not so today.

Obviously, the fact that African-American players in MLB are represented in rough proportion to their percentage of the overall population does not prove an absence of discrimination against them. However, there is little evidence of systematic racial discrimination in recent years, and indeed most of the new foreign players who have to some extent displaced both black and white Americans are themselves nonwhite. Individual instances of discrimination probably still occur and should be remedied. Overall, however, I see no reason for great concern here.

One could also try to justify concern about the declining percentage of African-American players because of the need for diversity, even in the absence of discrimination. However, MLB players today are a more diverse group than ever before - precisely because of the influx of foreign players. I'm not convinced that racial and ethnic diversity (as opposed to player quality) should be a major objective in player development. But even if it should, today's MLB - with its numerous players of all races from Latin America and the Far East - is doing pretty well. It's a lot more diverse than it ever was in the past, and considerably more so than our other major professional sports leagues.

UPDATE: I should acknowledge that it may be reasonable for MLB teams to be concerned that they are no longer getting as high a percentage of the best African-American athletes as in the past - primarily a result of competition from basketball and football. However, there is no reason to view this issue as a matter of broader social concern. And even from the baseball front offices' point of view, there is no reason for them to worry about losing this talent pool than any other of comparable size. White American athletes, for example, are also less likely to choose baseball over other sports today than in the past.

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Obama Would "Immediately" Look At Whether Criminal Charges Appropriate for Bush White House Officials: Will Bunch has the scoop. (Hat tip: TPM)
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McCain Unveils Ambitious Economic Plan.--

I am surprised by the aggressiveness of McCain's economic plans:

In his most wide-ranging speech on the economy, presumptive Republican nominee John McCain on Tuesday laid out an agenda that would change the tax code, freeze discretionary spending and temporarily suspend federal gas taxes. . . .

McCain, with the exception of military spending and veterans' benefits, called for a one-year freeze on the amount of money Congress allocates to discretionary programs.

"'Discretionary spending' is a term people throw around a lot in Washington, while actual discretion is seldom exercised. Instead, every program comes with a built-in assumption that it should go on forever, and its budget increase forever. My administration will change that way of thinking," McCain said.

Taxes: Time for a new system

In terms of taxes, McCain will make several proposals. Taking a page from the book of former Republican candidate Fred Thompson, McCain said he would offer an alternative tax system that would consist of just two tax rates and a larger standard deduction than under the current code. Tax filers would be allowed to choose whether they wished to file under the current system or the new one. . . .

McCain also proposed phasing out the Alternative Minimum Tax and boosting the dependent child exemption from $3,500 to $7,000 per child.

For corporations, he said he would seek to lower the top corporate tax rate from 35% to 25%.

Oil, loans and jobs

In a proposal sure to get the most attention in the near-term given record-setting oil prices, McCain proposed a suspension of the federal gas tax from Memorial Day to Labor Day - traditionally the heaviest season for driving. At just over 18 cents per gallon, that would save the average driver about $2.35 every time he fills up his tank. . .

He also proposed that unemployment insurance taxes be used to build "a buffer account" for each worker, which he could draw on directly if he loses his job.

"We have an unemployment insurance program straight out of the 1950s. It was designed to assist workers through a few tough months during an economic downturn until their old jobs came back. That program has no relevance to the world we live in today," McCain said.

There is plenty for supporters to get excited about and for opponents to attack. In particular, expect complaints that McCain wants to privatize unemployment insurance.

And the best way to lower gas prices a dime or so would be for the government to suspend purchases for our strategic petroleum reserves and to reduce greatly the size of those reserves.

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[Cass Sunstein, guest-blogging, April 15, 2008 at 12:03pm] Trackbacks
Libertarian Paternalism and Distrust of Government

Libertarian paternalists, or nudgers, want to preserve freedom of choice while also using default rules, disclosure strategies, and other aspects of the choice environment to incline people in good directions. Because human beings are subject to systematic errors, libertarian paternalists want to provide a little help.

It is natural to wonder: Why should we trust government? Isn't it subject to systematic errors as well? What about the public choice problem? Isn't libertarian paternalism just a new way to strengthen government's hand?

Part of the answer is that libertarian paternalists insist on freedom of choice, and in many contexts, they would reduce government coercion where it now exists. (See Nudge for more details.) Consider three quick examples:

1. Richard Thaler and I propose to increase freedom of contract between doctors and patients, allowing waiver of medical malpractice liability in an effort to promote liberty and to decrease the cost of health care.

2. Libertarian paternalists are highly sympathetic to the argument for school choice, adding only that steps should be taken to make sure that choices are real.

3. For the mortgage crisis, and for credit markets generally, libertarian paternalists reject bans and coercion and favor disclosure remedies.

Skeptics might object that if public officials are not trustworthy, the paternalistic part of libertarian paternalism is scary. It is true that libertarian paternalists want government to select sensible default rules for contract law, property law, prescription drugs, environmental law, and organ donation. But how can government dispense with default rules?

Short of anarchy, the legal system has to start somewhere; it has to specify what happens if people don't do anything. Legal entitlements don't come from the sky. You can't run free markets without basic rules of property, contract, and tort law, and those rules will operate as nudges, in the sense that they will incline people in certain directions. (Russell Korobkin of this very blog has done excellent theoretical and empirical work on this point.)

At a minimum, libertarian paternalists argue that where a government program is already in place, officials should preserve freedom of choice while also making good outcomes easy rather than hard. Consider the current prescription drug program for seniors.

Libertarian paternalists agree with President Bush that competition is a good idea in this domain. But the program is much too confusing; seniors are given too little help in choosing among twenty or more plans. Sometimes they blunder, just because of the complexity of the program. So long as government is going to have a prescription drug program, it should make it easy for seniors to provide relevant information about their situation and then to get a clear sense of what plan would be best for them.

Libertarian paternalists are not opposed to disclosure requirements. In environmental law and in credit markets, they think that disclosure is often helpful. For school loans, credit cards, and mortgages, Thaler and I propose a species of libertarian paternalism that we call RECAP: Record, Evaluate, and Compare Alternative Prices. The basic idea would be to avoid government mandates in favor of a disclosure requirement that would produce a simple, intelligible statement of existing fees. We think that RECAP would improve the operation of credit markets.

Maybe hard-line skeptics want to reject disclosure requirements altogether. But putting that possibility aside, it's hard to see how distrust of government leads to a rejection of libertarian paternalism a) when a government program is already in place, and the question is how to make it work as well as possible, or b) when (short of anarchy) government action is inevitable, as in the basic rules of contract, property, and tort law.

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George Mason Law School Update:

A couple of weeks ago, I noted that George Mason had so far hired eight new tenured or tenure track faculty members this hiring season. The hiring season has now ended, and the tally is up to nine, with the addition of tax scholar Rachelle Holmes. Our new additions increase our faculty by 30%, and with eight of the nine new hires untenured, and none a higher rank than associate professor, I think it's fair to say that the "class of 2008" represents the future of George Mason Law School.

The law school's press release, with bios of these new hires, (plus another great addition, senior lecturer Robert W. Woolridge), can be found here.

As an aside, it's very interesting to note that all but one of GMU's seven new assistant professors had a research fellowship or visiting assistant professorship before they went on the market--and the seventh has two law degrees, one from Australia and one from the U.S. A quick check of Larry Solum's compilation of law school hiring suggests that most new hires have post-J.D. academic experience, especially, but not exclusively, at the higher-ranked schools. The traditional academic route of "law review to clerkship to big firm to tenure-track job" seems to be going the way of the dodo.

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No More Games:

The Washington Post says enough is enough:

It is time to stop playing games with judicial nominees. As senators cross swords and point fingers, seats remain empty, sitting judges get swamped, and cases drag on. Those who pay the highest price are the plaintiffs, defendants, crime victims and businesses relying on the courts to resolve disputes and dispense justice.

President Bush deserves blame for not naming nominees sooner and for ignoring the advice of home-state senators. But that does not relieve senators of their duty to evaluate those who have been nominated. The Senate last week confirmed one Court of Appeals nominee and four U.S. District Court nominees; that should be only the beginning. In the past two years, the Senate has confirmed seven nominees to the Court of Appeals; 16 such nominees were confirmed during President Bill Clinton's final two years in office. It appears unlikely that Democratic senators will match that number, but they should at least give every current nominee an up-or-down vote and expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit, where five of the court's 15 seats are vacant. Many in the current batch of national nominees no doubt warrant confirmation; we single out two particularly worthy ones.

The nominees the Post considers to be "particularly worthy" of confirmation are Peter Keisler and Rod Rosenstein, a sentiment shared by more than one contributor to the VC.

Related Posts (on one page):

  1. No More Games:
  2. The Case for Keisler:
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A Surprising Environmental Grant:

Yesterday the Supreme Court granted certiorari in a set of combined cases raising the question "Whether 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the ‘best technology available for minimizing adverse environmental impact’ at cooling water intake structures." The grant was something of a surprise, as the Solicitor General had filed a brief in opposition, and the court has not seemed overly eager to wade into technical questions of environmental law.

The Environmental Law Prof blog has more on the case here, and SCOTUSBlog has links to the briefs. The case will be argued next term.

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Hurricanes and Climate Reconsidered:

The Houston Chronicle reports that a leading scientific expert on a potential link between hurricane activity and global warming may be reconsidering his views in light of subsequent research.

The hurricane expert, Kerry Emanuel of the Massachusetts Institute of Technology, unveiled a novel technique for predicting future hurricane activity this week. The new work suggests that, even in a dramatically warming world, hurricane frequency and intensity may not substantially rise during the next two centuries.

The research, appearing in the March issue of Bulletin of the American Meteorological Society, is all the more remarkable coming from Emanuel, a highly visible leader in his field and long an ardent proponent of a link between global warming and much stronger hurricanes. . .

"The results surprised me," Emanuel said of his work, adding that global warming may still play a role in raising the intensity of hurricanes. What that role is, however, remains far from certain.

(Hat tip: Prometheus)

I will be curious to see how Chris Mooney responds to this news. I greatly enjoyed his book on climate and hurriances, Storm World: Hurricanes, Politics, and the Battle over Global Warming, but he is more convinced there is a demonstrable warming-hurricane link than I have been.

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Monday, April 14, 2008

Peter Edelman On Clerking for Justice Goldberg: The Washington Lawyer magazine has a very interesting interview with Georgetown lawprof Peter B. Edelman that includes reflections on clerking for Justice Goldberg in 1962-63:
What was Justice Goldberg like?
He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.

What year were you at the Supreme Court?
I was there for the term that began in October 1962.

Did you have a favorite case?
The case I remember best is Rusk v. Cort, in which the government had stripped Dr. Joseph Cort of his citizenship on the grounds that he failed to return to the United States to respond to a draft notice in 1952 during the Korean War. The question at issue was whether this was constitutional, and by a vote of 5–4, the Court ruled that it was not. Justice Goldberg wrote the opinion, which I helped draft. Six years later, my wife and I were traveling through Czechoslovakia on our honeymoon, and I looked up Dr. Cort, who resided in Prague. I thought he would be pleased with the opinion of the Court, which said that his citizenship could not be taken away. But he was not at all grateful. He told me that if he went back to the United States he could still be prosecuted for avoiding the draft. I confess I had not thought through the real-life meaning of the decision. I learned a lesson that day.
Hat tip: Ed @ Bench Memos.

  UPDATE: The rest of the interview is also quite interesting, including this recollection of Justice Goldberg's run for New York governor in 1970:
Then in 1970 Justice Goldberg decided to run for governor of New York, and I was asked to be the issues director for the campaign. My relationship with Justice Goldberg was lifelong, and he was a wonderful mentor and friend, but he was also a terrible candidate. He had been appointed to every job he’d had in his life, and running for office was an art he never mastered. Once when we were campaigning in upstate New York, someone asked him, “You’ve had all these jobs—you’ve been Secretary Goldberg, Ambassador Goldberg, Justice Goldberg—and I was wondering what’s your favorite title?” Any candidate worth his salt as a politician would say, “Oh, just call me Arthur.” But Goldberg couldn’t do that. He let the questioner know he preferred to be addressed as “Justice Goldberg.” I shook my head in disbelief. I knew then that we were in serious trouble.
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When the "Best" Isn't the Best Choice:

My former colleague Andrew Morriss and William Henderson have an interesting article in the National Law Journal identifying some practical reasons some prospective law students should pay less attention to U.S. News rankings. Morriss and Henderson are not U.S. News bashers. They recognize that the rankings provide a useful sorting function, particularly given the lack of easily accessible alternative sources of comparative information about schools. Yet given the costs of law school, and the increasing stratification of private law firm salaries, they suggest that some prospective students would be better off attending lower ranked schools that are less expensive or more financially generous.

Despite its many flaws, the annual U.S. News & World Report law school ranking is cheap and easy to use, making it an important source of information for prospective students weighing their options. Unfortunately, the utility of these rankings is often distorted by an Internet-based echo chamber, where anonymous posters brag about their admissions to elite schools and job prospects at big firms.

To further complicate students' decisions, many law schools are engaged in vigorous competition to lure students who will boost the schools' status in key U.S. News metrics, such as median LSAT score or selectivity. All too often, the results are expensive, bad decisions about law school. . . .

For the vast majority of students who are not admitted to top tier national law schools, . . . Slavishly following the U.S. News rankings will not significantly increase one's large-firm job prospects. And the excess debt that students incur is likely to undermine their career options.

The article is accompanied by a wealth of data and interesting insights that prospective law students in particular should be sure to check out.

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Dartblog Takes the Cake (and $10K):

Today the America's Future Foundation announced that Joe Malchow, founder of Dartblog, won AFF's $10,000 College Blogger contest. The runners up were the Oregon Commentator and Surveillance State. I was one of the judges for the contest, and it was a pleasure. I learned there are many good college bloggers out there, and these three blogs are all quite outstanding.

[Note: Typo Fixed. My apologies to Mr. Malchow.]

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Is Neoconservatism a "Jewish" Movement? II:

I argued "no" last Fall. Peter Berkowitz chimes in, noting that many prominent neocons are not Jewish, and, more important, "neoconservatism does not rest on Jewish premises. Nor does it seek to advance specifically Jewish goals."

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How the Asians Became White:

I've discussed this phenomenon — of Asians not only being classified together with whites for various race preference programs (and calls for such programs), but of actually being called white — in the past. Razib Khan at Gene Expression points to this San Francisco Chronicle story that exhibits something quite like this:

A new study on physicians in California shows a glaring gap between the number of doctors of color compared with the state's ethnically diverse population, especially among African Americans and Latinos.

At the same time, the state has a disproportionate number of Asian and white doctors, according to the UCSF study, which focuses on doctor ethnicity and language fluency.

It found that out of nearly 62,000 practicing doctors in California, only 5 percent are Latino even though Latinos comprise a third of the state's total population. Only 3 percent of doctors in California are black, compared with 7 percent of the state's overall black population. While Latinos and African Americans make up about 40 percent of the state's residents, fewer than 10 percent of California's doctors are black or Latino.

So I guess that Asians aren't "of color" any more — they're colorless like me. At least it's better than their being "lily white," in the words of the late California Chief Justice Rose Bird.

Or maybe I'm missing something subtle here. After all, there is a glaring gap between the number of doctors of color and the state's ethnically diverse population, even among Asians — it's just that the gap there is the other way. Well, I guess that explains it. Or is it that they're indeed counting all nonwhites, and are just pointing to the "glaring gap" between the 52% nonwhite population and 39% nonwhite doctor share? That doesn't strike me as much of a glaring gap, and it's hard to reconcile with the distinction between the "doctors of color" in the first paragraph and the "Asian and white" in the second; it's odd that the categories in the first paragraph and the "At the same time" paragraph would deliberately overlap. (Plus note that the total nonwhite 52-39 gap appears in paragraph 9, while the "glaring gap" language is in paragraph 1 and the Hispanic-plus-black 40-10 gap is in paragraph 3.)

Oh, and check this out: "Yet within the Asian-doctor category, there is a troubling shortage of Samoan, Cambodian and Hmong doctors, the report found, decrying the overall pool of doctors statewide as inadequate." I guess I didn't realize that Samoans really need Samoan doctors, and Cambodians Cambodian doctors — but if they do, then why not worry about whether there's a disproportionately low number of, say, Serb immigrant doctors, or, if you prefer, doctors of Serb extraction? Why are all whites matched with all white doctors, but Asian ethnic groups seen as needing special help from members of that particular ethnic group?

Finally, the study and the story reason that "minority physicians are far more likely to practice primary care medicine and work with poor or uninsured patients in rural areas, inner cities or other communities with a chronic shortage of physicians." But that's a bit odd — I take it many physicians of all races prefer to make lots of money from rich patients, and quite a few physicians of all races work either full- or part-time with poor patients.

If you want to make sure patients in rural areas and inner cities are served, I would think that the logical answer is to give doctors of all ethnic groups a financial incentive to work there (perhaps as a condition of some scholarship or loan forgiveness program). The answer shouldn't be, it seems to me, finding more doctors of this or that racial group — even if that means relaxing the entry standards for that group, which on average will in some measure work against the interests of the patients that the doctors are likely to treat — and then hoping that they'll serve their own rather than serving the rest of us.

The study itself is available here.

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Explaining the "Inexplicable":

In an April 4 lead editorial, the New York Times referred to Berkeley's "inexplicable" employment of Professor John Yoo, author of the controversial "torture memos." Dean Christopher Edley responds:

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. . . .

Does what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless. . . .

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders. . . .

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Read the whole thing here.

The University of Minnesota Law School, my home institution, faced a related though distinct question a year ago about the one-term podium-fill hiring of University of St. Thomas Law School Professor Robert Delahunty, who worked with Yoo on some of the controversial Justice Department memos. (As it happened, Delahunty was taking over my Constitutional Law class for a semester while I was on research leave.)

I disagree, in some respects strongly, with many of the expansive assertions about executive power contained in the Yoo memoranda. My reading of the text of the Constitution, of the relevant history, and of the precedents, is that Congress enjoys considerable power along with the President when it comes to war. International treaty obligations not to torture, embodied in domestic law, are an expression of broad and deep congressional and executive will that can't be overcome absent the most explicit congressional authorization to do so. (As a side note, I find it difficult to conceive real-life scenarios when it would be necessary to use torture to extract vital and time-sensitive information from detainees, and I am very skeptical about the administration's claims that harsh tactics have been necessary to get such information in the past.)

Professor Yoo is a brilliant legal scholar, an excellent writer, and despite the caricatures of him, a kind and generous person. It is an intellectual delight to read his work, especially when I disagree with that work. He may have let the pressure of seemingly emergent circumstances cloud his judgment. Had I been in his shoes at that time (2001-03) and place, I can only hope I would have done better.

Like it or not, however, the basic ideas about presidential war power contained in the Yoo memoranda are embraced by serious lawyers and respected legal scholars like my former colleague Michael Paulsen. At least since 9/11, these ideas have become part of the mainstream of American legal discourse, both inside and outside the academy. I can't say that the Yoo memoranda are so beyond the pale of legal competence that a university should use them or the constitutional views they express as a basis to refuse to hire someone, or to fire that person once hired. A grant of tenure, as Dean Edley points out, raises the bar for employment action even higher.

The best response to ideas we strongly disagree with is generally not to blackball their proponents but, as one might put it, to beat them.

UPDATE: There's been an interesting and far more detailed exchange of views on John Yoo, Boalt Hall, academic freedom, and professional conduct at Balkinization, with posts by Jack Balkin, Sandy Levinson, Scott Horton (be sure to read Brian Leiter's comments to Horton's post), and Marty Lederman.

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[Cass Sunstein, guest-blogging, April 14, 2008 at 12:16pm] Trackbacks
Libertarian Paternalism and the "Yeah, Whatever" Heuristic

First of all, many thanks to Eugene for his kindness and generosity in supporting this discussion. While Richard Thaler and I have been working on the topic of libertarian paternalism for a long time, we continue to think of our project as a work-in-progress, and we are eager for suggestions and criticisms.

The basic idea is that private and public institutions might choose approaches that a) fully maintain freedom of choice (and are in that sense libertarian) but b) gently steer people's decisions in directions that will make their lives go better by their own lights (and are in that sense paternalistic).

In writing Nudge, Thaler and I have been much influenced by libertarian challenges to our earlier efforts. Many of our proposals operate as a kind "one-click paternalism," in the form of approaches that allow people to opt out at minimal burden or cost. Think, for example, of a default option for a cell phone setting or a rental car contract, which you can change with a click or a stroke of a pen.

We are hoping that in many domains, libertarian paternalism might be able to provide a real Third Way, one that goes beyond the mandates and bans often favored by the left and the simple enthusiasm for markets often favored by the right.

In the private sector, a poster child for libertarian paternalism is automatic enrollment in 401(k) plans. The idea is that when people start working, some percentage of their earnings automatically goes to savings -- but they can opt out if they want. Thaler is also a codesigner of the Save More Tomorrow plan, by which workers are asked if they want to enroll in a program that devotes some percentage of their future wage increases to savings. Both automatic enrollment and Save More Tomorrow have produced large changes in savings rates, and most workers are satisfied with the plans.

Of course a major impetus for libertarian paternalism is a series of empirical findings showing, not that people are "irrational," but that they are (in Thaler's term) quasi-rational, departing from rationality in predictable and specified ways. There's a ton of research on this question, but many of the proposals in Nudge rely on the immense power of default rules.

If a private company, or the government, offers something as the default, a lot of people will stick with it, even if a change is ridiculously simple to make. People often use what we call the "yeah, whatever" heuristic.

Why do defaults have such power? One reason involves inertia. People have a lot of things to think about, and especially when the choice is complicated, they're might well decide not to decide or to procrastinate. Another reason involves suggestion. When an option is described as a default, people often think, someone sensible thought that this is the way to go, and I might as well go along with what they thought.

Natural questions are: Who sets the default? Aren't they quasi-rational (or worse)? Why should we trust them? I'll turn to these questions soon. For now, the only point is that if we think creatively about the uses of default rules, we should be able to come up with many new possibilities for private and public institutions, which might be able to influence people's behavior without requiring anyone to do anything.

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"Further Consideration of This Appeal Pends the Supreme Court's Decision":

This is from the Ninth Circuit's order in Im v. Mukasey:

The Opinion filed August 13, 2007, appearing at 497 F.3d 990 (9th Cir. 2007), is withdrawn. Further consideration of this appeal pends the Supreme Court's decision in Negusie v. Mukasey, No. 07-499, or further order of this court. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.

This is an interesting linguistic move, it seems to me. "Pend" is used to mean "awaits" or "is delayed until," but the dictionaries I've checked don't note such a meaning for the verb. Yet "pending" does mean "while awaiting" or "[r]emaining undecided [or] awaiting decision or settlement" (I quote the OED here), so "pend" seems to be used as a back formation from that meaning of "pending." In any case, not unreasonable, though based on my experience and my quick online searches, highly unidiomatic.

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"Respect for Precedents":

A New York Times editorial asserts (thanks to How Appealing for the pointer):

Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process.

The study — with the unwieldy title “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court” — published in Constitutional Commentary, looked at how nine long-serving justices answered Senate questions, and how they then voted on the court. While it does not say that any nominee was intentionally misleading, it still found a wide gap.

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents. Justice David Souter deferred more to precedent than his Senate testimony suggested he would....

Well, I looked at the study, and I'm not sure I'm quite persuaded by how it categorizes the data. In particular, it seems to me that (according to the testimony reported in the Appendix, quoted below), Justice Scalia generally said that he had strong respect for old precedent -- and my impressionistic sense is that Justice Scalia has acted precisely this way. Justice Thomas, for instance, wrote a separate opinion in favor of overruling the Court's 1798 Ex Post Facto Clause decision in Calder v. Bull; Justice Scalia did not join that. The great bulk of Justice Scalia's votes in favor of reversing precedent have focused on precedent from the past several decades (unsurprising, partly because there's a lot more newer precedent, and partly because Justice Scalia is indeed big on tradition). So I see no "wide gap."

Here's the testimony from the Appendix:

Scalia: Stare Decisis/Precedent

[32] The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe.

[37] Q: Well, what weight do you give the precedents of the Supreme Court? A: It depends upon the nature of the precedent, the nature of the issue. Let us assume that somebody runs in from Princeton University, and on the basis of the latest historical research, he or she has discovered a lost document which shows that it was never intended that the Supreme Court should have the authority to declare a statute unconstitutional. I would not necessarily reverse Marbury v. Madison on the basis of something like that. To some extent, Government even at the Supreme Court level is a practical exercise. There are some things that are done, and when they are done, they are done and you move on. Now, which of those you think are so woven in the fabric of law that mistakes made are too late to correct, and which are not, that is a difficult question to answer. It can only be answered in the context of a particular case, and I do not think I should answer anything in the context of a particular case.

[45] Q: [A Supreme Court Justice] said that a precedent might be less authoritative if it had stood for a shorter period of time or if it was a decision by a sharply divide court.... Would you agree with that general sentiment? A: Well, I think the length of time is a considerably important factor. The Marbury v. Madison example that I gave in response to [a previous question.] I am not sure that I agree with [the Justice] that the closeness of the prior decision makes that much difference. I mean, if Marbury v. Madison had been 5 to 4, I am not sure I would reverse it today. But I can understand how some judges might consider that that is an appropriate factor as well. I agree — I certainly agree with the former. The latter would not have occurred to me, but maybe.

[104] I agree with the statement that longstanding cases are more difficult to overrule than recent cases.... [A]s I’ve said, some cases that are so old, even if you waived a document in my face proving that they were wrong when decided in 1803, I think you’d have to say, sorry, too late.

This is one highly general and banal pro-precedent statement ("The Supreme Court is bound to its earlier decisions by the doctrine of stare decisis in which I strongly believe," which is surely true, given that in the overwhelming majority of cases all Justices follow stare decisis simply for pragmatic reasons), followed by three statements expressing respect for old precedent. I wouldn't count this testimony as strongly pro-precedent in any absolute way; and I don't quite see how one can sensibly compare it to the other Justices' statements on precedent, which is what the study purported to do.

If each statement could be fairly boiled down to a simple "for precedent" or "against precedent," then maybe such comparisons could be made (though I doubt it). But if I'm right that Justice Scalia's statements were far from such simple assertions, and instead distinguished different kinds of precedents, then I don't see how the survey can sensibly give Justice Scalia a high pro-precedent score. (Justice Thomas's statements are likewise hard to categorize as solidly pro-precedent; the study actually put Thomas's views nearer the middle of the Justices', but again I don't quite see how one can sensibly do that, given the qualified nature of the Justices' stated views on the subject.)

There are lots of other possible problems here, some of which the article quite candidly delves into on PDF pages 33 and 34. But this problem alone should, I think, lead one to be quite skeptical of the New York Times assertions of a "wide gap" between the Justices' statements and their votes, and especially as to Justice Scalia. (I should say that the broader point that Justices' votes are hard to predict from their confirmation statements does strike me as correct.)

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Cass Sunstein Guest-Blogging:

I'm delighted to report that Cass Sunstein will be guest-blogging this week about his new book, Nudge: Improving Decisions About Health, Wealth, and Happiness (that's pronounced "nuhdge," not "noodge"). The book, which is cowritten with Prof. Richard H. Thaler, argues for a sort of choice-enhancing paternalism — a framework in which the government can create "choice architecture" that would push people into better decisions (i.e., ones that the actors on reflection would ultimately agree are better for them) by taking into account natural cognitive biases to which people are subject, without restricting freedom of choice.

Sunstein is now Karl N. Llewellyn Distinguished Service Professor at the University of Chicago Law School, but he will be joining the faculty of Harvard Law School next year. He is the author of many books, including Republic.com 2.0, Worst-Case Scenarios, Infotopia, and Laws of Fear. He is also, by a large margin, the most-cited full-time law professor, judging by citations in law reviews. I'm sure that many of our readers will disagree with Sunstein's posts, but I'm also sure that they'll be interesting and provocative.

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Proposed California Beer Tax -- A Constitutional Analysis: A California Assemblyman has proposed a dramatic hike in the state beer tax:
  Joe Six-pack will have to pay a lot more to get his buzz on if Assemblyman Jim Beall has his way.
  The San Jose Democrat on Thursday proposed raising the beer tax by $1.80 per six-pack, or 30 cents per can or bottle. The current tax is 2 cents per can. That's an increase of about 1,500 percent.
  But is this proposed tax constitutional? I say, obviously not. The tax would be blatantly unconstitutional under the Due Process clause, the 21st Amendment, the 8th Amendment, the Privileges & Immunities clause, and the Dormant Commerce Clause. Recall that the time of the Framing of the Constitution, Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is proof that God loves us and wants us to be happy." And was not Samuel Adams both a brewer and a patriot, I ask you?

  Relatedly, I have it on good authority that Patrick Henry has been wrongly quoted all these years, and that his actual statement about the revolution was, "Give me Liberty Ale or give me death!" The same goes for Nathan Hale, aka Nathan 'Ale, who actually said, "I only regret that I have but one liver to lose for my country."

  Placing such an undue burden on Californians' fundamental rights to liberty and the pursuit of happiness could not be a greater affront to these principles. I for one am deeply disturbed that Assemblyman Beall is so completely ignorant of basic constitutional principles.

  UPDATE: It occurs to me that this law also infringes the Second Amendment's right to keep beer in your arms -- an individual right if there ever was one.
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Sunday, April 13, 2008

Opinion and the Supreme Court Press Corps: In a Slate column on the future of the Supreme Court press corps, Dahlia Lithwick asks whether Supreme Court reporters should inject more opinion into their reporting:
While most of the Supreme Court press corps still strives mightily to report both oral argument and the decisions with perfect neutrality, some have increasingly incorporated a little point of view into their diet. Longtime print veteran Lyle Denniston blogs for SCOTUSblog, and fellow print vet Greenburg blogs for ABC. Liptak, whose brilliant Sidebar column is all the better for his opinions and point of view, may, by necessity, light the way toward some new kind of objective-expert-opinion Supreme Court coverage that isn't nearly as horrifying as it may sound. It always struck me as doubly peculiar that the folks with the most expertise about the court were the ones forced to keep their views to themselves.
  I have a very different perspective. It seems to me a notable feature of Supreme Court reporting that regular readers often tend to know the reporters' personal opinions. Styles vary, of course. Some reports are more "just the facts, ma'am" than others. But it often happens that the reporter's personal opinion is part of the story itself. Lithwick's own Supreme Court reporting provides a good example.

  To be clear, I think that the members of the Supreme Court press corps are an outstanding bunch of reporters. All are smart, dedicated, and work extremely hard to translate the complex and technical work of the Court into language nonlawyer readers can understand. But as Supreme Court geeks know, a lot of Supreme Court cases are awfully dry. This is a particular problem when the Court's docket is unusually low and the Court's cases are mostly interstitial. When the Court's opinions themselves aren't very bold or dramatic, it's hard to write engaging and exciting articles without some added color commentary. In that setting, a little personal opinion adds a lot of pizzazz.

  But I think of this as a bug, not a feature. The problem is that the personal opinions of reporters too often reflect their political views rather than some kind of objective "expertise." Reporters are only human — seriously, it's true — and like most of us they sometimes see their own worldviews as The Truth. As a result, sometimes political views can be presented as deep insights gained by expertise; opinion can be represented as fact. None of this is the end of the world, of course. I think regular readers realize the reporters' personal viewpoints and tend to adjust their sense of things accordingly. Still, on the whole, I tend to think the public would be better served by a turn to less personal opinion in Supreme Court reporting rather than more.
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Waterboarding for Fun and Profit:

The Washington Post reports on another court case involving allegations of torture.

No one really disputes that Chad Hudgens was waterboarded outside a Provo office park last May 29, right before lunch, by his boss.

There is also general agreement that Hudgens volunteered for the "team-building exercise," that he lay on his back with his head downhill, and that co-workers knelt on either side of him, pinning the young sales rep down while their supervisor poured water from a gallon jug over his nose and mouth.

And it's widely acknowledged that the supervisor, Joshua Christopherson, then told the assembled sales team, whose numbers had been lagging: "You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales."

What's at issue in the lawsuit Hudgens filed against his former employers -- just as in the ongoing global debate over the CIA's waterboarding of terrorism suspects -- is the question of intent.

Prosper Inc. maintains that what the supervisor did, while unauthorized, overzealous and misguided, falls far short of torture, and in fact was not nearly as bad as Hudgens makes out in his quest for damages.

"We're not the mean waterboarding company that people think we are," said George Brunt, general counsel for the firm.

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Sunday Song Lyric: I've been taking in Consolers of the Lonely, the new album from The Raconteurs (Jack White of the White Stripes' other band.) While I like the first single, "Salute Your Solution," I am also quite fond of the title track. The lyrics begin:
Haven't seen the sun in weeks,
My skin is getting pale.
Haven't got a mind left to speak
And I'm skinny as a rail.

Light bulbs are getting dim.
My interest is starting to wain.
I'm told it's everything a man could want
And I shouldn't complain.

Conversation's getting dull,
There's a constant buzzing in my ears
Sense of humor's void and null
And I'm bored to tears.
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"Be careful what you wish for, Rush"

Notwithstanding Tuzla-gate and all the other problems that the Hillary Clinton campaign has faced, I think that that the extended primary campaign is making Senator Clinton into a stronger, more appealing candidate.

Not unlike John McCain, she is more likeable as a scrappy fighter against a wealthier opponent than she is as the front-runner. Similarly, she is demonstrating toughness, resilience, and ability to adapt to unforeseen circumstances--good traits for a commander in chief.

Now, with bitter-gate dominating the political news, Senator Clinton has found perfect pitch. Check out this video of her speech in Valparaiso, Indiana. If the spirits of Franklin Roosevelt or Hubert Humphrey were brought back to earth, and didn't know any of the facts of the 2008 campaign, and were allowed to watch Senator Clinton's Valparaiso speech, I suggest that they would exclaim, "That's my kind of Democrat!" The politics of can-do optimism and not of bitterness; appreciation for the religious character of small-town America; affirmation of the Second Amendment and the rite of passing the tradition of responsible participation in the shooting sports from one generation to the next.

Yes, I know that Senator Clinton's prior record is not exactly consistent with her Valparaiso speech, particulary in regard to Second Amendment issues.

Still...every good American should want both of our major political parties to be patriotic parties: to believe that in every year of American history, there have been many reasons to be proud of America, notwithstanding its flaws; to believe that Americans are the masters of their fate and not the victims of economic determinism; and to see the American people not as "bitter" or "mean" but as hard-working, decent, and good.

Even if you believe Senator Clinton's speech entirely hypocritical (I consider it to be partially but not entirely so), "hypocrisy is the tribute vice pays to virtue." Senator Clinton's Valparaiso speech moves the party a step closer to its virtuous traditions.

The Real Clear Politics polling averages already suggest that if the election were held today, Senator Clinton would beat Senator McCain in Ohio and Pennsylvania, and that Senator Obama would lose both of those states to Senator McCain. You've got to go back to 1960 to find a candidate who won the general election while losing Ohio, and in 2008 it would be very tough to defeat a candidate who won both Ohio and Pennsylvania. Senator Clinton is effectively using bitter-gate not only to improve her already-solid chances of winning the Pennsylvania primary, but to strengthen her general election message as a traditional Democrat who embraces the best of America's past, present, and future.

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