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Saturday, May 3, 2008

"Moral Consideration of Plants":

The Swiss Federal Ethics Committee on Non-Human Biotechnology's report, The Dignity of Living Beings with Regard to Plants. A sample:

The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible. This kind of treatment would include, e.g. decapitation of wild flowers at the roadside without rational reason.

Conclusion 3 expresses the different moral stances according to which it is unanimously held that plants may not be arbitrarily destroyed, in accordance with Conclusion 1. As 3 shows, the majority considers this morally impermissible because something bad is being done to the plant itself without rational reason and thus without justification. A minority considers this treatment to be impermissible as well, but for another reason: because this destructive treatment of a wild flower expresses a morally reprehensible stance.

There's much more. Thanks to Manny Klausner and to this Weekly Standard article for the pointer.

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Bleg for time data on colonialism:

International Olympic Committee president Jacques Rogge, in an April 26 interview in the Financial Times, urged Western patience with China's oppression of Tibet. Rogge stated that the People’s Republic of China has existed since 1949, and he noted that European colonial powers abused their colonies for a long time. He concluded: "we owe China to give them time."

Does anyone know a good source for the lengths of European colonialism on a colony-by-colony basis? Some colonial periods (e.g., Portugal's rule of Angola) were very long, while others (some of the latter European conquests in Africa) were not much longer than the nearly six decades that Rogge imputes to the PRC's colonial rule of Tibet.

I realize that one could argue about whether Rogge is correct in dating Chinese colonialism only to the time when the current regime came to power. The French government went through a complete regime change as a result of the French revolution; would French colonial masters in 1791 then be entitled to tell their colonial victims: "Please be patient with us; our regime has existed for only two years. Never mind that the previous French government put you under the French colonial thumb decades ago."

But let's just use Rogge's timeline. The Tibetans, Uighers, and Inner Mongolians have lived under PRC colonialism for nearly six decades. How long does this compare to the period of European rule of various colonies, as well as to the length of Russian/Soviet rule for the various captive nations which were part of Imperial Russia and the USSR?

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Obama as Constitutional Law Professor:

Before becoming a senator and then running for president, Barack Obama spent several years as a part-time lecturer in constitutional law at the University of Chicago Law School. I haven't read anything about what he was like as a professor. A uniter (open-minded, encouraging critical questions) or a divider (not)? Overtly ideological or dispassionate and neutral? Well-prepared or lackadaisical? Any hints about his constitutional philosophy? Inquiring minds want to know! Surely this blog has some readers who took Obama's class (or perhaps were classmates of those who did and thus at least know of his reputation), and can enlighten us.

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Is John McCain a Burkean Conservative?

Jonathan Rauch argues that John McCain is a "Burkean conservative," which Rauch defines as "respecting long-standing customs and institutions" and opposing "radical change." I'm a big fan of Rauch's work, but in this case I find his argument unconvincing.

Most of Rauch's evidence consists of political compromises that McCain has accepted as a senator and presidential candidate. However, as a "maverick" senator viewed with suspicion by both his own party and the Democrats, McCain had little choice but to compromise if he wanted to see any of his ideas enacted into law. Similarly, McCain had to accept some compromises and trim his sails in order to win the nomination of the Republican Party, most of whose activists were hardly enthusiastic about his candidacy.

On some issues, however, McCain has indeed endorsed "radical change" that runs counter to tradition. For example, he has repeatedly made clear that he wants far more sweeping regulation of political speech, going well beyond the compromises embodied in his McCain-Feingold law. Rauch describes the Iraq War as inconsistent with Burkean conservatism (because it was an effort at rapid transformation of a tyrannical society). Yet McCain has consistently supported the war just as enthusiastically as President Bush (albeit advocating what I think is a more effective and realistic strategy than that pursued by Bush and the Pentagon during the first several years of the conflict). If McCain becomes president, he will face fewer external constraints and will therefore be able to pursue his more radical preferences more aggressively.

Nonetheless, there is a good reason for Burkean conservatives and others opposed to rapid change to prefer a McCain victory. If McCain wins, divided government will be preserved, and divided government makes it difficult for either the President or Congress to enact radical new policy initiatives. It also plays a valuable role in constraining the growth of government. If one of the Democrats wins, he or she will have a cooperative Democratic majority in Congress (probably a bigger one than currently exists) and there will likely be several radical new policy initiatives and a major expansion of the size and scope of government. Thanks to divided government, a McCain victory might well lead to Burkean conservative results even if that isn't McCain's personal preference.

At the same time, I should note that I am not a Burkean conservative myself, and my reasons for preferring a McCain victory have more to do with the usefulness of divided government in constraining the growth of government than with any general opposition to rapid change. If time permits, I will do a follow-up post on the shortcomings of Burkean conservatism, which I think overstates the virtues of tradition and underestimates the possibility that rapid change is sometimes a good thing.

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Pro-riot radio commentary from Roseanne Barr and Rush Limbaugh:

A left/right convergence in support of a reprehensible idea. At least that's my analysis, in my media column for today's Rocky Mountain News/Denver Post.

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The Trials of Marc Dann:

Ohio Attorney General Marc Dann has only been in office 16 months, and he's already engulfed in scandal. Some Republicans are even talking about impeachment. But his political opponents are not the only ones up in arms. Dann's fellow Democrats (and Democratic-leaning bloggers) are also upset. On Friday, four staffers from Dann's office quit or resigned due to a sexual harassment scandal and Dann admitted to an extra-marital affair with one of his subordinates. From the Plain Dealer report:

Dann, 46, a brash upstart when he won election in a near-sweep of statewide offices by Democrats in November 2006, finds himself barely holding his job just 16 months into a four-year term. His Democratic colleagues are keeping their distance, and Republicans are demanding he quit.

The affair with his 28-year-old former scheduler emerged as collateral damage from a probe into harassment charges against one of his top managers that resulted in two firings and two resignations.

Fired were Anthony Gutierrez, director of general services, and Leo Jennings III, director of communications. Edgar Simpson, chief of staff, would have been fired but resigned. The woman linked to Dann, Jessica Utovich, also quit.

But Dann did not pay the same price, despite an improper relationship that may have violated his own office policies and his role in the harassment claims that brought down his three close friends: Gutierrez, Jennings and Simpson. . . .

Dann, the state's top lawyer, said he is not sure whether he violated his own office policies by having a relationship with Utovich, an Avon Lake native. He said he engaged in the relationship during a difficult time in his marriage.

"I don't know what it [the policy] says," an emotional Dann said at the news conference. "A consensual affair is not necessarily a violation of the sexual harassment policy in my office."

He said admitting the affair to his wife, Alyssa Lenhoff, a Youngstown State University journalism professor, was punishment enough for him - even though others may have suffered worse fates by losing their jobs.

While Dann pleaded for mercy, he wasn't getting much of it early on from his Democratic colleagues.

"It is what it is. We'll see what happens from here," Secretary of State Jennifer Brunner said.

Gov. Ted Strickland suggested that there was a double-standard at play - Dann survives while others lose their jobs. Strickland, who said he was disappointed and angry, again called for an independent investigation of the harassment allegations and any links to Dann. . . .

Dann later said in an interview at The Plain Dealer with reporters and editors that he would request an outside review, something he had refused to do until now. But that didn't quiet his critics.

Ohio Republican leaders pounced. Reminded that Dann swept into office as an upset winner in November 2006 by casting the GOP as crooked and unaccountable, Republicans now say Dann is unfit to be attorney general and should quit. . . .

Republicans said that if Dann doesn't step down, they could try to impeach him. The Ohio House could bring articles of impeachment while the Ohio Senate could hold a trial and serve as jury, according to the Ohio Constitution.

But Dann vowed to continue, saying, "I haven't done anything impeachable."

At least three Ohio papers (1, 2, 3) have called for Dann to resign. And it could get worse for the former ATL Lawyer of the Day, as the two women who originally filed the sexual harassment complaint (and others) claim Dann has yet to be candid with the public or state investigators about what he knew when, and what he did. The two women are also likely to file suit, which could lead to more unwelcome revelations. (As if there weren't enough already.)

It is a sad day for the state of Ohio that this man is our state's top law enforcement official. He should resign and let Gov. Strickland appoint a successor.

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Is California an Energy Leader?

Is California exercising energy policy leadership that other states (and nations) should follow? The Manhattan Institute's Max Schulz doesn't think so.

the state's energy leadership is a mirage. Decades of environmental policies have made it heavily dependent on other states for power; generated crippling costs; and left the state vulnerable to periodic electricity shortages. Its economic growth has occurred not because of, but despite, those policies. . . .

California's proud claim to have kept per-capita energy consumption flat while growing its economy is less impressive than it seems. The state has some of the highest energy prices in the country – nearly twice the national average – largely because of regulations and government mandates to use expensive renewable sources of power. As a result, heavy manufacturing and other energy-intensive industries have been fleeing the Golden State in droves.

The unreliable power grid is starting to rattle some Silicon Valley heavyweights. Intel CEO Craig Barrett, for instance, vowed in 2001 not to build a chip-making facility in California until power supplies became more reliable. This October, Intel opened a $3 billion factory near Phoenix for mass production of its new 45-nanometer microprocessors. Google has chosen to build the massive server farms that will fuel its expansion anywhere but in California.

And yet, despite a desperate need for more power, opposition to energy projects remains prevalent. State law prohibits the construction of new nuclear plants, and legislative efforts last summer to repeal it went nowhere. Last spring state regulators vetoed a proposal to build a liquefied natural gas terminal 14 miles off the Malibu coast.

Even renewable-energy projects meet resistance. Texas, of all places, is the nation's leader in wind-power generation. High costs, excessive regulation and environmentalist litigation have hampered California's efforts. Texas has just built lots of turbines. . . .

Californians may feel good about their environmental consciousness. But someone needs to build power plants and oil refineries to fuel their economy. Someone needs to manufacture the cars they drive, the airplanes they fly, the chemicals and resins and paints and plastics that make their lives comfortable.

Those things require energy, and lots of it.

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Is Ethanol on the Wane?

With rising food prices and increased awareness of the environmental costs of corn-based ethanol, it should only be a matter of time before politicians reconsider their support for ethanol mandates, right? Perhaps this is starting to happen. The WSJ reports that two dozen Republican Senators, including John McCain, are asking the Environmental Protection Agency to ease existing renewable fuel mandates.

he lawmakers said the mandates are contributing to a sharp increase in food prices. Sen. McCain has been a critic of ethanol subsidies.

"With the price of everyday meat, chicken, bread and eggs rapidly increasing, we are asking the EPA to use the flexibility that Congress gave them, because so many families cannot afford the increasing prices at the grocery store," said Sen. Kay Bailey Hutchison (R., Texas). An EPA spokesman couldn't be reached to comment.

EPA spokesman Jonathan Shradar said the agency "will review waiver requests and respond according to the law."

The move by the Republican Senate group is the latest sign that Washington's support for turning corn into motor fuel is wavering in the face of soaring food prices, despite the popularity of ethanol subsidies in farm states critical to the November election.

Yet as the story notes, it is unlikely that the federal government will take action this year. Not only is this an election year, but President Bush has also reiterated his support for biofuels.

Some argue that the problem is not ethanol, as such, but ethanol made from corn. Over at Cato-at-Liberty, Indur Goklany considers the prospects of cellulosic ethanol, and finds claims that switchgrass or some other crop could alleviate our ethanol woes to be "wishful thinking."

If cellulosic ethanol is indeed proven to be viable (with or without subsidies), what do people think farmers will do?

Farmers will do what they’ve always done: they’ll produce the necessary biomass that would be converted to ethanol more efficiently. In fact, they’ll start cultivating the cellulose as a crop (or crops). They have had 10,000 years of practice perfecting their techniques. They’ll use their usual bag of tricks to enhance the yields of the biomass in question: they’ll divert land and water to grow these brand new crops. They’ll fertilize with nitrogen and use pesticides. The Monsantos of the world — or their competitors, the start-ups — will develop new and genetically modified but improved seeds that will increase the farmer’s productivity and profits. And if cellulosic ethanol proves to be as profitable as its backers hope, farmers will divert even more land and water to producing the cellulose instead of food. All this means we’ll be more or less back to where we were. Food will once again be competing with fuel. And land and water will be diverted from the rest of nature to meet the human demand for fuel.

Does this mean that biomass – and farmers — should play no role in helping us meet our energy needs? Not necessarily. If farmers can profitably grow fuel rather than food through their own efforts, so be it. But we shouldn’t favor growing one over the other either through subsidies or indirectly through government mandates for so-called renewable fuels. And if anything should be subsidized or mandated, it shouldn’t be growing fuels. That would inevitably compete with food.

Goklany's point that biofuel production and food production necessarily compete is unassailable, but that hardly means (unsubsidized) biofuels are a bad idea. All sorts of land-uses compete with food production, including habitat conservation. And as Goklany's own research shows, increases in agricultural productivity has enabled us to produce more food while setting more land aside for nature at the same time. In any event, Goklany is surely correct that subsidizing biofuels produced from corn, switchgrass, or anything else, will distort agricultural markets at the expense of consumers.

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Why the Takings Clause Requires Compensation for Government Takings of the Property of Innocent People during Criminal Investigations:

I think my debate with Orin over the Takings Clause and seizures of property during criminal investigations is likely to enter the realm of diminishing returns soon, if it hasn't already. So in this post I will merely recap my key points and respond briefly to Orin's latest post.

I argued in my original post that the Takings Clause, which requires "just compensation" for "takings" of "private property" for "public use" requires compensation for the taking of innocent persons' property during a criminal investigation. The textual basis for this is very simple: that the Fifth Amendment does not distinguish between takings of property for use in a criminal investigation and takings for other public uses. The text simply states: "nor shall private property be taken for public use, without just compensation." There is no exception for takings related to criminal investigations or any other takings of any kind. Thus, it is reasonable and natural to assume that the text requires compensation for all takings alike, whether they occur during criminal investigations or not. Orin then argued that this interpretation of the Fifth Amendment is inconsistent with the text of the Fourth Amendment, and I tried to explain why there is no contradiction: the Fourth and Fifth Amendment both protect property rights, but in different ways and against different threats.

Now, Orin claims that my latest post merely shows that it is possible to interpret the Fifth Amendment as requiring the government to compensate innocent property owners for takings that occur during criminal investigations, not that such an interpretation is required. I'm not sure I understand his post correctly. But it seems to me that it conflates my response to his Fourth Amendment point with the whole of my argument. If I am correct in that latest post in arguing that there is no contradiction between my interpretation of the Fifth Amendment and the functions of the Fourth Amendment, then my textualist approach to the Takings Clause stands (at least against Orin's objections): it is logical and natural to interpret it as applying to all takings of private property for public use. There is no implicit, nontextual exception for takings that occur during criminal investigations. Thus, compensation for such takings is not only permitted but required by the text. My core argument is simply that the Takings Clause says what it means and means what it says. It applies to all takings of private property for public use, not just some subset of them.

Orin also interprets my statement that the framers did not "intend" my reading as suggesting that it is merely a possible reading rather than the correct one. However, I have from the outset stated that my argument is textualist, not originalist. The sole originalist point I sought to make was that there is no compelling originalist evidence against my interpretation. That point is merely a negative defense against Orin's claim that originalism counts against my argument. My affirmative argument is textual, not originalist, and I respectfully suggest that Orin hasn't - at least so far - succeeded in refuting it.

To put the point another way, I doubt that the framers ever considered the specific problem of takings of the property of innocent people during a criminal investigation. At the same time, however, the text they enacted is clearly broad enough to cover this situation, just as it is broad enough to cover many other types of takings that were rare or even completely unknown in their day. Consider, for example, the taking of property for the purpose of building an airport. Similarly, when they drafted the First Amendment, the Framers could not and did not consider the regulation of speech on television and radio. But that does not mean that the Free Speech Clause can't apply to regulation of speech on broadcast media.

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Constitutionally Permitted Versus Constitutionally Required -- A Response to Ilya: In his latest comment, Ilya offers a way to reconcile the text and function of the Fourth and FIfth Amendments in a way that allow the Takings Clause to be used in crimimal investigations:
To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not forbidden. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not.
  This is an interesting theory, but it seems that we have shifted ground a bit. Instead of arguing that the text and text alone affirmatively mandates this reading — after all, the text is the law — Ilya now appears to be arguing that it's possible to interpret the text in a way that permits this reading. As he puts it, he "merely suggest[s] that [the Framers's written text] did not intend to preclude" his approach. But that isn't textualism: It's a policy argument made in a zone of textual ambiguity. And that's the problem, I think. It seems to me that Ilya's argument is a lawyerly effort to try to engraft a libertarian theory onto the Constitution rather than a straight textual or originalist account of what the Constitution affirmatively commands.
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The Takings Clause and the Seizure of Innocent Parties' Property During Criminal Investigations:

Orin makes some interesting new points in his latest post in our debate. But I remain unpersuaded. To review, I argued that when the government seizes the property of innocent people during a criminal investigation (e.g. - to use as evidence), the government is required to pay compensation under the the Fifth Amendment's Takings Clause, which requires the payment of "just compensation" whenever "private property" is "taken for public use."

In his most recent post, Orin claims that my interpretation of the Takings Clause fails to take account of the Fourth Amendment, which protects homeowners against "unreasonable" searches and seizures:

From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects."

Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one.

To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not categorically forbidden; the Fourth Amendment says nothing about the rules governing those situations. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not. I don't know if this synergy was deliberately intended by the framers. But it is certainly a natural and logical interpretation of the text.

To recap, the Fourth Amendment protects us against unreasonable seizures by categorically banning them, but says nothing about what happens if the seizure isn't unreasonable. The Fifth Amendment, meanwhile, protects us against "reasonable" seizures that are severe enough to constitute a "taking" of property for "public use" by requiring the payment of compensation. That way, the government is allowed to take property for use in a criminal investigation when it is reasonable to do so. But it is not allowed to arbitrarily impose the cost on innocent property owners. As I noted in my very first post in this sequence, this is a classic example of one of the main purposes of the Takings Clause: "bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armonstrong v. United States (1960). It seems to me perfectly logical to have one Amendment that forbids "unreasonable" seizures, and another that protects people against uncompensated takings of property (including some types of "reasonable" seizures).

Orin also argues that "public use" implies "action," not just "the passive act of storing something away over time." Perhaps. But seizing property and keeping it away from its owner is certainly an action. So is the act of moving the items to a government-owned facility for storage and locking it up (which certainly doesn't seem "passive" to me). And going through the stored property in order to evaluate its potential usefulness as evidence is even more clearly an action that requires "using" that property. Moreover, even "passive" storage of an item for potential future use is plausibly interpretable as "using" it as well. For example, when I store away my second pair of glasses, I am "using" it as a backup for my primary pair. If I had seized that backup pair from the rightful owner, it would surely be a "taking" for "Ilya's use." If the government does the same thing, it's a "taking" of the glasses for "public use."There may be some cases where the government seizes property for a criminal investigation in such a way that it doesn't "use" it at all; but such situations are likely to be rare if they exist at all.

I do not mean to suggest that any government use of property in an investigation requires compensation. As I noted in an earlier post, many such uses do not infringe on property rights severely enough to constitute a "taking" of that property (e.g. - a search that does not require the government to seize the owner's property or take exclusive possession of it for any significant length of time).

Finally, Orin disputes my claim that the framers may have been unfamiliar with seizures of property owned by innocent third parties in the course of criminal investigations. He notes that they obviously did know about cases involving the forcible return of stolen goods that had found their way into the hands of innocent third parties. Orin himself suggests the logical response: "the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party."

To elaborate slightly on Orin's point: if the goods are stolen, the innocent third party is not the legitimate owner of those goods, and she or she isn't entitled to compensation under the Fifth Amendment because she didn't have any right to the goods in the first place. Orin also notes that even the original owner was not entitled to compensation for the time when the government had his property in its custody prior to returning it. But there is a clear difference between a case where a thief steals someone's property and the government then takes it back from the thief in order to return it to the rightful owner, and one where the government itself takes the property from an innocent person in order to use it for its own purposes. The former scenario is not a "taking" from the rightful owner (at least not by the government), and also doesn't involve any kind of "public use" of the property by the state.

Orin says that this commonsense distinction is inconsistent with this 1967 Warren Court decision. Possibly. I'm not sure if Orin means to endorse the Warren Court's reasoning or not. But either way, a case decided by the decidedly nonoriginalist Warren Court in the 1960s says very little of relevance to the original meaning of the Fourth and Fifth Amendments in 1791. It is particularly irrelevant to the Takings Clause, since the case in question does not seem to consider that clause at all.

As I noted in my previous post, my argument is primarily textual rather than originalist. I am not claiming that the Framers specifically envisioned the approach I advocate. I merely suggest that they did not intend to preclude it, and may not even have considered the specific point at issue, given that the problem it addresses was unlikely to be a common one in their time.

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Friday, May 2, 2008

Illeism Legalism:

As the Washington Post reports:

Acting as his own attorney, Pellicano made his closing arguments.... [He] addressed his jury. "Hi," he said. "This is the first time I will be able to speak for Mr. Pellicano." Because of the rules of the court, Pellicano the advocate must refer to Pellicano the defendant in the third person. You are correct: It is weird.

Well, it's weird by comparison to how people talk about themselves, but it's not weird by comparison to how lawyers talk about the defendant. To a lawyer, a closing argument that's chock full of "I"'s would sound very strange, and I take it the court's concern is that it will unduly personalize the process for the jury. So it's a slightly silly affectation in normal life, but legally compulsory in this unusual context.

Thanks to Language Log for the pointer.

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Is John McCain a Burkean Conservative?: Jonathan Rauch makes the case over at TheAtlantic.com. I hope he's right. Thanks to Instapundit for the pointer.
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[Robert Brauneis, guest-blogging, May 2, 2008 at 6:13pm] Trackbacks
HAPPY BIRTHDAY V: Evidence and Repose in a World of Long Copyright

Suppose you owned a piece of land and took no legal action while others used it for more than two decades. When you (or your successor) eventually tried to evict those users, would you prevail? For centuries, the doctrines of adverse possession and easements by prescription have stood in the way of such long-delayed action. These doctrines rest on a notoriously mixed bag of rationales, including protecting the expectations of users, who may or may not have been acting in good faith; promoting productive use of land; keeping title free of complications that may hinder transfer and investment; and obviating the need to decide cases on thin, stale evidence of ownership claims. But the doctrines themselves have remained a remarkably durable part of land law.

Copyright law has never had similar doctrines (nor has patent law). As long as the term of copyright remained relatively short, it arguably had little need for them. Copyrighted works were going to enter the public domain soon anyway -- after, at most, 28 or 42 or 56 years -- and they would enter the public domain even sooner if copyright holders didn't assert their continuing interest in the works by filing a renewal registration after 14 or 28 years. Now, however, copyright can last for 120 years or more, and has no renewal requirements. Thus, it is possible for a copyright owner to neglect to enforce copyright for decades, and then return and reassert ownership for decades more.

The history of "Happy Birthday to You" gives us a glimpse of what can happen when long copyright has no adverse-possession-like doctrine. The song was distributed widely for about 20 years from the early 1910s to the early 1930s without any permission from or enforcement by the Hill sisters or their publishers. It was during that period -- a period when the song was de facto in the public domain -- that it became THE standard birthday song in the United States. It is even conceivable that the lack of copyright enforcement contributed to the song's assumption of its central place in American culture. Then the putative copyright owners resurfaced and started claiming royalties, not for another decade or so until 1949, but, it now appears, for another 95 years until 2030.

The copyright community has started discussing the related and partially overlapping problem of "orphan works," but so far there's been no legislative progress on that front. The doctrine of adverse possession was actually a judicial creation, piggybacking on top of statutes of limitations. The copyright statute of limitations, however, is so short -- 3 years -- that it is unlikely that judges will ever read doctrines of adverse possession or prescription into it. The result is that copyright will likely increasingly face all of the problems -- clashing expectations, clouded title, stale evidence, use-inhibiting uncertainty -- that land ownership would have without those doctrines.

One comment earlier this week noted the evidentiary problems that arise as works under copyright get older and older. Some of those are inevitable. Others could be avoided with better Copyright Office recordkeeping policy, which has not kept up with the increasing copyright term. As I detail in my article, the Copyright Office has maintained a policy of discarding much correspondence and many deposits after a decade or two. In addition, there has never been a way for the public to learn when the Copyright Office has denied registration of a work, unless the dispute gets into the courts, because only successful registrations are assigned searchable numbers. I heard a rumor that there had been an unsuccessful attempt to register the "new" melody of "Happy Birthday to You," different from the melody of "Good Morning to All" only in that the quarter note to which "Good" was sung was split into two eighth notes to accommodate the word "Happy." The rumor is probably false, but since there's no way to search denied registrations . . . who knows?

With that, I'll conclude my series of posts about "the World's Most Popular Song." Thanks again to Eugene for giving me this opportunity, and to all of you who responded for your comments and discussion.

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Supreme Court Trivia: Which Supreme Court Justice wrote the following in a solo dissent: "A mosque in Fez, Morocco, that I have visited, is, by custom, a sanctuary where any refugee may hide, safe from police intrusion."
(a) Justice Alito
(b) Justice Holmes
(c) Justice Douglas
(d) Justice Breyer
(e) Justice Thomas
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Playing Radio Show That Discussed Sex = Possible Massive Legal Liability?

Reeves v. C.H. Robinson Worldwide, Inc, decided Monday by the Eleventh Circuit, is the latest case illustrating how hostile environment harassment law may suppress constitutionally protected speech. The Eleventh Circuit held that Ingrid Reeves could proceed to trial with her hostile environment harassment claim -- which is to say, that if the jury agrees with her on the facts, it's entitled to award potentially hundreds of thousands of dollars in damages -- even though the case didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally.

Rather, her complaints, as described by the Eleventh Circuit were chiefly related to "sexually crude language that offended her." A fairly small part of the incidents involved sex-based insults ("bitch," "whore," and once "cunt") used to refer to women customers and another employee behind their backs. There was also casual use of the word "dick," and some sexually themed jokes (and one song) with pretty vulgar language, overheard discussions about pornography, masturbation, and sex; one incident in which Reeves saw pornography on a coworker's computer; and the following:

Reeves was also offended by a radio program that was played every morning on the stereo in the office [a morning program on Birmingham's 107.7 FM during 2002-03, according to one brief -EV]. Discussions of the following material on the show offended her: (1) breast size of female celebrities and Playboy Playmates; (2) sexual arousal and women’s nipples as indications thereof; (3) masturbation, both in general and with animals; (4) erotic dreams; (5) ejaculation; and (6) female pornography. Advertisements for or including the following material that were aired during the program also offended her: (1) sexual favors; (2) a bikini contest that instructed women to wear their most perverse bikinis; (3) a statement that a woman was found in bed with three elves and a candy cane; and (4) a drug called Proton that promised to increase sexual performance, please a partner, and make the user a “sexual tyrannosaurus rex.” When Reeves complained about the radio programming, she was often told that she could play her own music or change the station. She testified, however, that if she did so the other employees would soon change the radio back to the offensive program.

The Eleventh Circuit expressly rejected the argument that, to constitute discriminatory harassment "based on" sex, speech had to actually specifically target the plaintiff as a woman (or, in other contexts, as a black, Catholic, or whatever else). There's a good deal of circuit precedent for this rejection -- but the consequence is that any speech, including radio programs, overheard conversations, and the like, that is "particularly offensive" to people because of their sex, race, religion, and so on is punishable. The sexually themed material, the court concluded, "was discussed in a manner that was ... more degrading to women than men," which I take it reflects the view in plaintiff's brief that "In these discussions, women were objectified and demeaned." And because it implicitly expressed such degrading views, it could be punishable as harassing based on sex.

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). The government ought not be able to limit it, including through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech. Yet this is exactly what happens here.

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. I generally don't fault employers for reacting this way. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.

Of course, many people are understandably upset about having to work around this sort of vulgarity, or for that matter around political speech that they find offensive based on religion, race, sex, and the like. But, as I've argued at length, preventing such offense -- whether in private workplaces, private educational institutions, privately owned places of public accommodation, or private housing complexes -- by punishing or imposing liability for speech (outside the narrow existing First Amendment exceptions) is not something that the government should be allowed to do.

I should also mention that the special First Amendment status of broadcast radio, under which some restrictions on vulgarities and even on content that simply discusses certain sexual themes have been upheld, is not relevant here -- the case didn't turn on this, and would have come out the same way if it had involved cable radio, or Internet radio, or CDs, or any other fully protected medium. (I think the lower protection for broadcast radio is itself unsound, but that's a separate matter.) I should also mention that the defendant didn't raise the First Amendment here, and the court therefore didn't discuss it.

Thanks to Michael Masinter for the pointer.

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More on the Takings Clause and Criminal Procedure: In making his argument for using the Takings Clause to provide compensation for investigative seizures beyond the return of the physical property itsef, Ilya writes:
Since I am more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.
  I find this argument weak on both textualist and originalist grounds. Let's start with the textualist claim. There are two paragraphs of text here, the Fourth and the Fifth Amendments:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  Ilya writes that he finds it "highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the 'public use' of investigating crime and other kinds of takings." But I don't think the failure to make that distinction can fairly be read as including both categories instead of excluding one. From a textualist standpoint, the Fourth Amendment has a very explicit regulation on searches and seizures; its language was explicitly addressed to the rules that govern the "seizing" of "effects."

  Given this language, it seems odd to construe the one phrase at the very end of the Fifth Amendment — "nor shall private property be taken for public use, without just compensation" — as implicitly providing another limitation of "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" found in the Fourth Amendment. Further, the word "use" implies action, not just the passive act of storing something away over time (which, on the other hand, is clearly a seizure). Given that, I just don't think Ilya's reading is a natural one.

  Second, Ilya's speculation that the Framers didn't experience seizures of property owned by innocent third parties seems off the mark, too. One of the more prominent uses of warrants at English common law was to retrieve stolen goods; its use was discussed in Entick v. Carrington, 19 Howell's State Trials (1765), the English decision that more than any other case inspired the passage of the Fourth Amendment. In these cases, the legitimate owner of the stolen goods would complain to the local magistrate that his goods had been stolen; the magistrate would issue a warrant allowing the government officials to go and retrieve the goods from the person who stole them so they could ultimately be returned to the property owner.

  During these cases, the government would have control over the property for a period of time, and the property owner was ultimately entitled to return of the original property. But I don't know of any instances in which decreases in value of the property obtained pursuant to the warrant due to the passage of time or the resulting inconvenience was referenced as some sort of "taking" requiring "just compensation." As best I can tell, such matters were considered matters of the common law power to conduct reasonable searches and seizures, not takings.

  But wait, you're thinking: the government is acting in a very different capacity when it is retrieving stolen goods than when it is collecting evidence that just happens to belong to a third party. Perhaps. But if you think that, then you should blame the Warren Court for overruling the common law "mere evidence rule" in Warden v. Hayden. The Fourth Amendment's prohibition on warrants for mere evidence — as opposed to contraband or fruits of crime — originally acted to avoid fact patterns like than in Amerisource. If Warden v. Hayden was wrongly decided, that is a matter for the Fourth Amendment to fix rather than the Takings Clause.
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College Teacher Fired Over Loyalty Oath:

The LA Times has an interesting story on a Cal State Fullerton instructor, Wendy Gonaver, who was fired for refusing to sign the state's loyalty oath.

the day before class was scheduled to begin, her appointment as a lecturer abruptly ended over just the kind of issue that might have figured in her course. She lost the job because she did not sign a loyalty oath swearing to "defend" the U.S. and California constitutions "against all enemies, foreign and domestic."

The loyalty oath was added to the state Constitution by voters in 1952 to root out communists in public jobs. Now, 16 years after the collapse of the Soviet Union, its main effect is to weed out religious believers, particularly Quakers and Jehovah's Witnesses.

As a Quaker from Pennsylvania and a lifelong pacifist, Gonaver objected to the California oath as an infringement of her rights of free speech and religious freedom. She offered to sign the pledge if she could attach a brief statement expressing her views, a practice allowed by other state institutions. But Cal State Fullerton rejected her statement and insisted that she sign the oath if she wanted the job.

Apparently this is not an isolated incident.

In February, another Cal State instructor, Quaker math teacher Marianne Kearney-Brown, was fired because she inserted the word "nonviolently" when she signed the oath. She was quickly rehired after her case attracted media attention.

It is hard to know how many would-be workers decline to sign the pledge over religious or political issues. Some object because they interpret the pledge as a commitment to take up arms. Others have trouble swearing an oath to something other than their God.

I don't know as much about this area of the law, but I find it hard to believe that this policy could survive a court challenge, particularly since (as the story notes) the Cal State system applies the oath requirement more stringently than is required. Other state agencies apparently allow individuals to qualify the oath or attach explanatory statements.

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Anti-Evolution Teaching as "Academic Freedom":

The WSJ reports that anti-evolution forces have adopted a new stealth strategy to undermine the teaching of evolution in public school science classes: "academic freedom." The story reports on "academic freedom" legislation that would protect high school science teachers who challenge evolutionary theory in their classes.

The academic-freedom bills now in circulation vary in detail. Some require teachers to critique evolution. Others let educators choose their approach -- but guarantee they won't be disciplined should they decide to build a case against Darwin.

The common goal: To expose more students to articles and videos that undercut evolution. Most of this material is produced by advocates of intelligent design or Biblical creationism, the belief that God created man in his present form. . . .

Those promoting the new bills emphasize that academic freedom doesn't mean biology teachers can read aloud from the Book of Genesis. "This doesn't bring religion into the classroom," said Florida state Rep. D. Alan Hays, a Republican.

The bills typically restrict lessons to "scientific" criticism of evolution, or require that critiques be presented "in an objective manner," or approved by a local school board.

Evolution's defenders respond that there are no credible scientific critiques of evolution, any more than there are credible alternatives to the theory of gravity. The fossil record, DNA analysis and observations of natural selection confirm Darwin's hypothesis that all life on Earth evolved from a common ancestor over four billion years.

In the scientific community, while there may be debate about the details, the grand sweep of evolution is unassailable. "There's no controversy," said Jay Labov, a senior adviser for education and communication with the National Academy of Sciences.

Unlike some critics of "Intelligent Design" and other creationist theories, I am not convinced that teaching alternatives to evolution necessarily violates the Establishment Clause. That said, these bills make for horrible public policy, as there is nothing scientific about these "alternatives" to evolution. Encouraging attacks on evolution in high school science classes promotes academic fraud not "academic freedom." If school boards or state legislatures want public school students to be exposed to competing theories about the origins of life -- a question evolutionary theory does not address -- they should do it in a world religion or social studies class and leave science alone.

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Ex-Detainee Becomes Suicide Bomber:

Reuters reports that relatives of a former Guantanamo detainee claim he became a suicide bomber in Iraq. What does this prove? Nothing really, but I'm sure partisans in the debate over Guantanamo and the treatment and detention of alleged enemy combatants will see this as evidence that confirms their respective points of view. On the one hand, Abdullah Saleh al-Ajmi may have been a dangerous enemy combatant all along, and should never have been released. On the other hand, he may have been wrongfully detained in the first place, only to become radicalized by his (mis)treatment by the U.S. military. In other words, we either had a terrorist and let him go, or we created one.

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Federalist Society Conference on Consumer Credit Regulation:

The Federalist Society is hosting a Conference on current issues in consumer credit regulation on Tuesday May 20, from 9:30-2:00 at the National Press Club.

The details and registration information is here. Confirmed participants include Jennifer E. Bethel, Allen Fishbein, Paul Leonard, Allen Ferrell, Oliver I. Ireland, Thomas A. Durkin, and Todd J. Zywicki.

There will be two programs, the first on subprime lending and the second on credit cards.

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The Takings Clause and Compensation for Innocent Property Owners Who have their Possessions Seized During Criminal Investigations:

In his interesting post responding to my critique of the Federal Circuit's AmeriSource decision, Orin argues that the Takings Clause does not require compensation in these cases.

Orin claims that "the argument that the Takings Clause applies is hard to make from an originalist perspective [because] Innocent third parties have long had their property rights interfered with in criminal investigations." There is a big difference between having your property "taken for public use" (the term used in the Fifth Amendment) and merely having it "interfered with." A search of a house is not a taking. There is, however, a taking if the government kicks you out of your house and takes control of it - either permanently or for an extended period of time. To my knowledge there is no evidence that the framers and ratifiers of the Bill of Rights accepted the view that there isn't a taking in cases where the government actually seizes the property of innocent third parties during a criminal investigation, as opposed to merely "interferes" with it. As the Court explained in Bennis, there were some early cases when the courts tolerated a seizure of property that had been used in criminal activity by a person whom the owner had entrusted it to. But that is very different from the seizure of property that the owner had never entrusted to a wrongdoer who went on to use it to commit a crime.

I recognize, of course, that the line between taking and interference may sometimes be fuzzy. But that doesn't mean that there aren't cases that clearly fall on one side or the other. Seizing someone's property and holding it for months (as happened in AmeriSource) is clearly a taking. Since I a more a textualist than an originalist, I think it highly significant that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. All require the payment of "just compensation." Since there were no professional police forces or extensive government evidence-gathering in the 1780s, the Founders may never have been confronted with a situation like that in AmeriSource; as a result we may never be able to discover their specific opinions on the matter (if indeed they had any). However, the text of the Fifth Amendment is more than broad enough to cover these cases. And it is the text, not the subjective intentions of the Framers, which is the law.

Orin also contends that "allowing such claims under the Takings Clause would be quite difficult to administer" because property rights of innocent people are so often "interfered with" during investigations. Part of this concern may be mitigated by the distinction between takings and interference discussed above. However, I don't deny that there will be at least some administrative problems. But the government can mitigate these by establishing a system of administrative compensation that can, in most cases, obviate the need for litigation. As a practical matter, property owners are unlikely to sue for recovery of small losses because of the cost of litigation. Some administrative costs will arise anyway. But that is an inevitable consequence of the enforcement of any constitutional right. For example, as Orin knows better than I, Fourth Amendment enforcement raises all kinds of difficult administrative problems arising from the difficulty of determining whether the police had adequate reasons for searching a particular location at the time they did it.

That said, Orin and I might well agree on the issue of administration more than we disagree. Orin writes:

I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable.

I think that Orin is right on both of these counts. A statutory regime of compensation would be highly desirable and might well be enough to provide adequate compensation to property owners. It could also obviate some of the administrative difficulties of case by case litigation. However, it is unlikely that the government will have any incentive to enact such a scheme unless the judiciary starts enforcing the "just compensation" requirement of the Takings Clause in these cases. If Orin and I are right to believe that the administrative difficulties can be overcome by a statutory or administrative compensation procedure, then judicial enforcement might help facilitate that happy outcome.

Finally, Orin argues that my position - if adopted by the Court - would lead to a narrowing of the exclusionary rule. This aspect of the matter is beyond my expertise, so I can't comment on it intelligently.

Unfortunately, I will be on the road most of tommorrow, so may not be able to continue this debate. However, I may return to it on Saturday if additional points occur to me at that time.

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The Takings Clause and Criminal Investigations: Ilya raises some truly fascinating questions below in his post on whether the Takings Clause should require compensation for losses suffered by innocent individuals in the course of searches and seizures permitted in criminal investigations. I wanted to add some thoughts from a different perspective.

  First, I would think that allowing such claims under the Takings Clause would be quite difficult to administer. Innocent third parties have their property interests interfered with in criminal investigations all the time; a single seizure justified by a warrant could implicate the property rights of dozens of different people or more. If each seizure can trigger takings claims, the administrative and litigation costs of resolving these claims would quickly become prohibitive. I recognize that some might like this result. But I would guess that no one confirmable as a Supreme Court Justice would agree, making it unlikely that the Supreme Court would adopt such a rule.

  Second, I would think the argument that the Takings Clause applies is hard to make from an originalist perspective. Innocent third parties have long had their property rights interfered with in criminal investigations; houses get searched, property gets seized. But I'm not aware of any argument based on the original public meaning of the Takings Clause that the clause was deigned to address collateral damage in criminal investigations. My sense is that at the time of the Framing, such questions were understood as Fourth Amendment issues, not Fifth Amendment issues. Given that, I think the argument would have to be based on language from recent precedents, not original meaning.

  Finally, if the Supreme Court did recognize such claims under the Takings Clause, there is a good chance that they would also rearrange not-insignificant chunks of criminal procedure law to adjust to the shift. Ilya argues that Takings compensation would be a good thing in criminal investigations so the government internalizes costs of investigations. But most of criminal procedure law has been created to try to deter police investigations using the exclusionary rule. A dramatic expansion in civil liability would likely lead to a cut-back in the scope of the exclusionary rule. Whether that's good or bad may be a matter of opinion, but I think it's worth noting that the idea could have consequences far beyond the Takings clause.

  Just to be clear, I'm not defending the status quo as a matter of policy. I tend to agree with Ilya that the government should provide compensation in cases such as that raised by the Federal Circuit case. Plus, a statutory regime could be written to make it much more administrable. But I think there are some difficulties reaching that result through the Takings Clause. In any event, it's a very interesting set of issues -- thanks to Ilya for raising them.
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Is there a Taking When the Government Seizes the Property of Innocent People During a Criminal Investigation?

As a general rule, if the government appropriates your property, it is considered a taking of private property for public use under the Fifth Amendment and the state must pay you "just compensation." This is true even if the government has a very good reason for taking your property (e.g. - it needs it for vital infrastructure or for a military base). As the Supreme Court famously explained in Armstrong v. United States (1960), the Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

Unfortunately, the U.S. Court of Appeals for the Federal Circuit has recently ruled that this principle does not apply in a case where the government appropriates the property of innocent people as part of of a criminal investigation. In AmeriSource Corp. v. United States (hat tip: my soon-to-be colleague T.J. Chiang), the Court held that there is no taking and no compensation is required in a case "when the government seizes an innocent third party’s property for use in a criminal prosecution but never introduces the property in evidence, and it is rendered worthless over the course of the proceedings." In this case, the government seized some $150,000 of drugs belonging to the AmeriSource Corporation for use as evidence in a criminal case against another firm. By the time the government decided that it no longer needed the drugs (which were never actually introduced into evidence), they had been rendered worthless by the passage of their expiration dates. Although AmeriSource was never even accused of any wrongdoing, it will get no compensation whatsoever for the loss of this valuable property.

I. Public Use and the Police Power.

The Federal Circuit's ruling may ultimately be correct under current Supreme Court precedent. But some of its reasoning is extremely dubious. The Court's main argument is that there is no taking here under the Fifth Amendment because, when the government seizes property for use in a criminal investigation, it is exercising its "police power" (which, includes, among other things, law enforcement) not taking property for a "public use," as the text of the Amendment indicates. However, the Supreme Court has ruled in several cases (most notably Berman v. Parker and Hawaii Housing Authority v. Midkiff) that the scope of public use is "coterminous with the scope of a sovereign’s police powers" (Midkiff, 467 U.S. 229, 240-41 (1984)). I think that this is an overly broad interpretation of "public use," but it does clearly indicate that the mere fact that a government action involves the police power doesn't mean that it can't also be a taking for a public use. Thus the Federal Circuit is wrong to draw a sharp dichotomy between "public use" on the one hand and "police power" on the other.

II. Supreme Court Precedent.

That said, the Federal Circuit may be on more solid ground in relying on the Supreme Court's extremely permissive jurisprudence on asset forfeitures. For example, in Bennis v. Michigan (1996), The Supreme Court held that there was no taking in a case where Mr. Bennis' car was confiscated because he had engaged in illegal sex with a prostitute in the vehicle. Although Mrs. Bennis was a co-owner of the car and she had not been convicted of any crime, the Supremes held that she wasn't entitled to any compensation for the loss of her interest in the car. I think that Bennis was wrongly decided. But obviously the Federal Circuit had to obey this Supreme Court precedent.

Whether Bennis does in fact determine the outcome of the present case is a close call. Unlike in Bennis, the property seized in AmeriSource was not connected to any wrongdoer whatsoever. Thus, the two cases might be considered different. The Bennis decision did not rule that the absence of any wrongdoing by any of the owners would lead to a different outcome. But it also didn't preclude that possibility. Indeed, Bennis explicitly relied on "a long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use." Unlike in Bennis, there was no such illegal use of property by AmeriSource. On balance, therefore, I think that AmeriSource can be distinguished from Bennis, but I don't blame the Federal Circuit too much for failing to do so.

III. Why Compensation Should be Required.

Much more problematic is the failure of the Supreme Court to properly apply the Takings Clause to innocent property owners who have their property appropriated by the state in the course of criminal investigations. Even if the government has a legitimate need for the items in question (e.g. - because they are important evidence), denying compensation is a classic example of "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Apprehension and punishment of criminals is a general public interest and the costs should be paid by the public as a whole, not arbitrarily imposed on individual property owners who were unlucky enough to get caught up in an investigation. There is also no doubt that the government is "using" the property in question. Therefore, there is every reason for the courts to conclude that private property appropriated during a criminal investigation has indeed been taken for "a public use" and that the Fifth Amendment therefore requires compensation for the owners.

Some might fear that the government will be hamstrung by having to compensate all owners of evidence used in investigations. Perhaps the cost will be too great. In reality, however, there is always a cost when the government takes property away from owners. The only question is whether the owners will be forced to bear that cost or whether it will be borne by the public fisc. If the government is forced to pay compensation, it may have stronger incentives to correctly balance the benefits of appropriating the items in question against the costs imposed on innocent owners. It is actually a good thing if the government is deterred from seizing property that is of great value to owners, but perhaps of only marginal use to the prosecutors' case. Currently, the government can afford to ignore the costs imposed on innocent owners completely, unless the latter happen to have a lot of political clout. That is both unfair to property owners and likely to promote the use of investigative tactics whose costs to the innocent outweigh their benefits in promoting the conviction of the guilty.

UPDATE: It is worth noting that these cases seem to bring out some of the worst instincts of both conservative and liberal judges. The liberals tend to support the government because of their general tendency to devalue constitutional property rights. The conservatives do the same because of their general reluctance to support anything that might impede law enforcement. That said, three liberal justices signed on to Justice Stevens' excellent dissent in Bennis. One conservative (Justice Kennedy) also voted that way. Another (Justice Thomas) wrote a concurrence suggesting that the case should be construed relatively narrowly. Hopefully, the Court will limit or overrule Bennis in a future decision. I suppose I should emphasize that the above points about conservative and liberal jurists don't necessarily apply to conservatives and liberals more broadly. For example, many liberals outside the Court were outraged by the Kelo decision, which was supported by all four liberal justices on the Court itself.

UPDATE #2: Economist David Friedman (son of Milton) makes some good points in his comment on this post.

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[Russell Korobkin, May 2, 2008 at 1:17am] Trackbacks
The Genetic Information Nondiscrimination Act:

Today, the House of Representatives passed the Genetic Information Nondiscrimination Act (GINA) by a vote of 414-1, joining the Senate, which passed the bill last week 95-0. In addition to prohibiting discrimination in employment on the basis of genetic conditions, GINA prohibits health insurerance companies from denying coverage or determining premiums based on a customer's gentic information, which is defined broadly to include family history of health conditions.

The Act provides important protections, not only for customers in the individual health insurance market, but also for small employment groups with one or more individuals who have a high likelihood of suffering a genetically-linked illness. (Federal law prohibits health insurers from discriminating against any individual in the group insurance market, but the expected costs of covering the individual can be spread equally across all members of that group). The Act also will remove a disincentive for healthy individuals to take genetic tests because of fear that knowing the results will cause insurability problems.

In an op-ed piece in last Saturday's Los Angeles Times (here), I argue, however, that the law does not go far enough, because it still allows discrimination in coverage and pricing of insurance based on any conditions the individual customer has or has had in the past. Hopefully, GINA will be the initial step toward a legal regime in which health insurance premiums are community rated within age bands, with differential pricing allowed for risky behaviors that are individually controllable (such as smoking) in order to minimize moral hazard.

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The Record-Setting Presidency of George W. Bush: CNN.com has the scoop.
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Thursday, May 1, 2008

Victims of Communism Day:

Today is May Day, the primary holiday of communist parties and regimes. Last year, I put forward my proposal to transform May Day into Victims of Communism Day, in honor of the 100 million or more people murdered by communist regimes in the USSR, China, Cambodia, and elsewhere.

In this short 2005 article, political scientist Rudolph Rummel, a leading authority on mass murder, summarizes the massive death toll of communism in the twentieth century, which he conservatively estimates at some 110 million dead. This figure greatly exceeds the deaths attributable to all of the 20th century's wars combined, as well as all the deaths caused by the 20th century's many brutal noncommunist dictatorships. As Rummel also points out, the communists also have the dubious distinction of establishing the single most lethal regime relative to the size of the population it ruled: Pol Pot's Cambodia.

In addition to honoring the victims of communism, the proposal can also serve as a much-needed reminder of the dangers of allowing the state to seize control of the economy and civil society - just as Holocaust Memorial Day serves as a useful reminder of the dangers of racism and anti-semitism.

UPDATE: As I mentioned in my original May 2007 post, it is likely that this idea was proposed by others first, so I don't claim originality for it. Catallarchy/Distributed Republic, for example, has been commemorating the victims of communism on May Day for several years. Unlike me, they have not, as far as I can tell, proposed that Victims of Communism Day be made an official holiday similar to Holocaust Memorial Day; they instead simply commemorated the day on their blog. That said, their idea was similar enough to mine that I don't object if they take the lion's share of the credit for it. I wouldn't be surprised if someone else came up with a similar idea even earlier. What should matter is the merit of the proposal, not who came up with it first.

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[Robert Brauneis, guest-blogging, May 1, 2008 at 6:09pm] Trackbacks
Happy Birthday IV: When is the use of an anecdote irresponsible?

Taking a breather from arcane copyright doctrine, here's an issue that's not specific to copyright, or even to law at all. What is the proper role of anecdotes in making policy arguments?

Suppose that I'm arguing that the term of copyright is too long, and I say, "because of Congressional pandering to special interests in Hollywood, even 'Happy Birthday to You' is still under copyright!!!" Why is this example likely to carry particular persuasive force? In part, because the audience probably makes false assumptions. "Happy Birthday to You" is one of the few songs that most people still learn as children, at home, from family and friends, far from the commercial world of iTunes and Vh1. That will cause many people to lump it with songs like "Mary Had a Little Lamb" and "Twinkle, Twinkle, Little Star," though the latter are considerably older. And many people may also assume that if "Happy Birthday to You" is under copyright, the copyright owner could demand a license for singing it at a family birthday party — outrageous! — though private performances have never been regulated by copyright. I discuss this sort of problem with the use of anecdotes in my article, I can't say that I have the answer.

Taking a hard line, one might say that all anecdotes and examples should be accurate and typical (and not foreseeably misleading) or they shouldn't be used. The requirement of being typical may be impossible to meet, however. Members of a group may be diverse enough that none of them is really "typical," and anecdotes can be misleading in very subtle ways.

Meanwhile, we human beings may be built in such a way that statistics often don't move us enough to take appropriate action. Specific examples, as supplements to numbers and percentages, may actually be necessary to engage us to respond adequately. So it's not clear that minimizing the use of anecdotal argument would even theoretically be optimal, given that we are who we are.

Here's a possible rule of thumb: small deviations of examples from the typical are inevitable, and just need to be accepted; medium-sized deviations should be accompanied with a proviso ("not all cases are like hers"); atypical examples should be avoided; and there should be some effort to figure out how typical an example is deploying it. I'm not sure how far that gets us, however. I have to confess that in yesterday's post, I mentioned the use of "Happy Birthday to You" in the movie "Annie's Coming Out" in part because the scene sounded striking: kids with multiple sclerosis were singing it to another kid with multiple sclerosis. Is that a typical use? Is the fact that that scene is touching something we should really take into account when formulating copyright policy in general, or in a fair use analysis?

Perhaps Volokh Conspiracy readers have insights to share.

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"No Child Left Behind" Act Case Goes En Banc:

The School Law Blog reports that the U.S. Court of Appeals for the Sixth Circuit has granted rehearing en banc in Pontiac City School District v. Spellings. In January, a divided three-judge panel reversed a federal district court's dismissal of a school district's Spending Clause challnge to portions of the "No Child Left Behind" Act. I previously blogged on this case here. [Link via How Appealing.]

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Politico: 'What Obama wishes he could say"--

John F. Harris and Jim VandeHei have a column on "What Obama wishes he could say":

The one line from the what-Clinton-thinks column that most agitated Obama supporters was our assertion that Clinton, for better or worse, was a known commodity. Her “baggage” has already been “rummaged through.”

To which Obama supporters say: Oh yeah?

All manner of Clinton controversies, Obama partisans argue, have not been fully ventilated.

This includes old issues, like Hillary Clinton’s legal career, which includes lots of cases that never got much public attention even during the Whitewater era.

It also includes new ones, like recent stories raising questions about the web of personal and financial associations around Bill Clinton. Since leaving the presidency, he has traveled the globe to exotic places and with sometimes exotic characters, raising money for projects such as his foundation and presidential library and making himself a very wealthy man.

Which gets us back to gall. In the fantasies of some of his high-level supporters, Obama would peel off the tape to say something like this:

You want to talk hypocrisy? How about piously criticizing me for Jeremiah Wright when you have a trail of associations that includes golden oldies like Webb Hubbell? (‘90s flashback: He was one of Hillary Clinton’s legal partners and closest friends, whom she installed in a top Justice Department job before prosecutors sent him to prison.) It also includes modern hits like Frank Giustra. (In case you missed it: There was a January New York Times story, which did not get the attention the reporting deserved, highlighting how this Canadian tycoon and major Bill Clinton benefactor was using his ties to the ex-president to win business with a ruthless dictatorship in Khazakstan.)

Obama has never pressed Clinton to talk about Marc Rich, even though the former fugitive financier who won a controversial pardon from Bill Clinton gave money to her first Senate campaign.

He has never mentioned her brothers, even though Hugh and Tony Rodham once defied Bill Clinton’s own top foreign policy advisers by entering into a strange investment in hazelnuts in the former Soviet republic of Georgia (they later dropped the deal) and Hugh Rodham took large cash payments for trying to broker presidential pardons.

Obama is likewise galled to be lectured by Clinton for not being sufficiently committed to universal health coverage. Why is it, his team asks, that Democrats have done so little to advance a long-time progressive goal for the past 15 years? The answer has everything to do with Hillary Clinton’s misjudgments when she was leading the reform effort in 1993 and 1994.

Most irritating of all to Obama partisans is what they see as her latest pose: that she is selflessly staying in the race despite the long odds against her because of devotion to the Democratic Party and the belief that she is a more appealing general election candidate.

It is an article of faith among most people around Obama that the Clintons were a disaster for the party throughout the 1990s. When Bill Clinton came to town in 1993, Democrats were a congressional majority, with 258 seats in the House. When he left in 2001, they were a minority with 46 fewer seats. There were 30 Democratic governors when he arrived, 21 10 years later.

This just scratches the surface: Hillary Clinton was the main attorney drafting the documents on some of the Whitewater deals, including both sides of sham transactions in which the profits for sales were funneled to Web Hubbell's relative, rather than the actual sellers. At times, she headed up efforts to trash the reputations of Democratic women who plausibly claimed that they were sexually assaulted by her husband. The John Huang case detailed in "Year of the Rat" was the most outrageous and dangerous payoff of a large campaign contributor that I have ever heard of, exceeding even anything in the Nixon administration. I could go on . . . .

One of Harris and VandeHei's arguments (attributed to the Obama camp) against the Clintons, however, lacks merit. It is almost inevitable that the party in office would lose seats in Congress and lose state governorships. This "lightning rod" effect is detailed in a Yale Law Journal article that I co-authored, which can be downloaded at the bottom of this SSRN page.

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Boy, I Sure Hope This Pans Out:

BBC reports (check out the video at that page for "before" and "after" pictures):

The photos of [Lee Spievak's] severed finger tip are pretty graphic. You can understand why doctors said he'd lost it for good.

Today though, you wouldn't know it. Mr Spievak, who is 69 years old, shows off his finger, and it's all there, tissue, nerves, nail, skin, even his finger print....

Mr Spievak re-grew his finger tip. He used a powder — or pixie dust as he sometimes refers to it while telling his story.

Mr Speivak's brother Alan — who was working in the field of regenerative medicine — sent him the powder.

For ten days Mr Spievak put a little on his finger.

"The second time I put it on I already could see growth. Each day it was up further. Finally it closed up and was a finger.

"It took about four weeks before it was sealed."

Now he says he has "complete feeling, complete movement."

The "pixie dust" comes from the University of Pittsburgh, though in the lab Dr Stephen Badylak prefers to call it extra cellular matrix....

Now if only he could regrow the "." after the "Mr". Thanks to InstaPundit for the pointer.

UPDATE: "Junk science," reports an English professor of hand surgery. "It looked to have been an ordinary fingertip injury with quite unremarkable healing. All wounds go through a repair process." Well, rats. I still hope the story pans out, though this criticism suggests it might not.

FURTHER UPDATE: Commenter PatHMV (Stubborn Facts) reports that Scientific American also mentioned the story, and reported that "the injury was treated with a protein powder that might have aided regeneration by acting as a scaffold for regrowing tissues" -- not a ringing endorsement, but also a suggestion that this isn't just junk science.

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Proposition 99 - California's Trojan Horse Eminent Domain "Reform" Referendum Initiative:

The Institute for Justice has a good analysis criticizing Proposition 99 the eminent domain "reform" initiative that will be on the ballot in California this November [correction: June 3](hat tip: Tim Sandefur). Sponsored by the California League of Cities and other pro-condemnation interests, Proposition 99 purports to protect property rights against takings but actually provides almost no real protection. I discussed an earlier version of Proposition 99 in this 2007 post, where I explained in some detail why it doesn't actually provide meaningful protection to property owners. The current proposal is substantially identical to the earlier one. It is a clever effort to prevent the backlash against Kelo v. City of New London from forcing the enactment of reforms that will genuinely restrict eminent domain in California.

As I show in my article on post-Kelo reform, new laws enacted by referendum have generally given property owners far more protection than those enacted through the ordinary legislative process. In this case, however, pro-condemnation interests are trying to use the referendum system to their advantage.

Indeed, Proposition 99 is likely to actually reduce protection for property rights; that is most likely its main purpose. How? by forestalling Proposition 98, an initiative placed on the ballot by property rights activists that really would forbid Kelo-style "economic development" condemnations and other eminent domain abuses. Absent Proposition 99, Prop 98 is almost certain to pass and enter into law - as have anti-Kelo referendum initiatives in ten other states. Section 9 of Proposition 99 would invalidate any other referendum amendment on eminent domain passed on the same day so long as Proposition 99 receives a greater number of votes than the other initiative does. As I discussed in my earlier post, the interest groups behind Proposition 99 are banking on voter ignorance. Legally unsophisticated voters are unlikely to either notice Section 9 or understand its import if they do. Most will vote for Prop 99 simply because it seems to protect property owners against Kelo-like "economic development" takings - a hugely popular cause supported by some 80% of the public. They may well not understand that a vote for Prop 99 actually prevents property owners from getting any real protection.

As I explain in my comprehensive paper on post-Kelo reform, widespread political ignorance has led to the enactment of numerous eminent domain reform laws that pretend to protect property rights but actually allow takings to continue as before. The California League of Cities' Proposition 99 is a particularly skillfull attempt to use political ignorance to stave off effective eminent domain reform. I hope that it fails, but I'm not optimistic.

CONFLICT OF INTEREST WATCH: I have in the past done pro bono work and written amicus briefs in property rights cses for the Institute for Justice.

UPDATE: I have corrected the link to the IJ analysis of Proposition 99. Thanks to commenters for pointing out the previously flawed link.

UPDATE #2. In response to several commenters who raised the issue, it's worth pointing out that Proposition 98, unlike Proposition 90 (narrowly defeated in 2006), does not have any provisions requiring compensation for regulatory takings. It bans condemnations for "economic development" and other similar transfers to private parties, and therefore will have little or no effect on environmental regulation, rent control or other issues. As co-blogger Jonathan Adler argues in this excellent article, compensating property owners for environmental regulations that restrict their ability to use their land is actually good policy and likely to improve the quality of environmental protection. Be that as it may, Proposition 98 doesn't require any such compensation. In this 2006 article, Adler and I explained why a ban on "economic development" takings of the sort Prop 98 seeks to impose would have beneficial environmental consequences.

UPDATE #3: I had not read Section 6 of Prop 98 as carefully as I should have when I wrote the last update. Section 6 of Proposition 98 specifically exempts preexisting rent control laws from coverage and ensures that tenants who currently reside in rent controlled housing units continue to receive the benefit of those laws. However, Prop 98 would forbid new rent control laws, or the limitation of rent for new tenants under the old ones. That said, the California Constitution makes it easy to enact new amendments, so the voters could still enact new rent control laws if they want to - they would just have to take the form of a referendum initiative or other constitutional amendment.

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Telephone/E-mail Harassment Law and Government Officials:

Traditional telephone harassment laws -- for instance, ones that ban calls (sometimes limited to anonymous calls and sometimes not) that are intended "to annoy, abuse, threaten, or harass any person at the called number" -- are generally thought to be constitutional. As to threatening calls, the First Amendment rationale is clear; they fall within the true threats exception. Likewise, if the law were limited to calls that are annoying for non-content-related reasons (e.g., they're placed at 3 a.m., or they happen twenty times over twenty minutes), it would be justified as a content-neutral restrictions.

But as to "annoy[ing]," "abus[ive]," or "harass[ing]" calls, the rationale is less obvious. The law restricts speech because of its content; the speech doesn't fit within any of the well-established exceptions; and even anonymous speech is usually constitutionally protected. In my view, the best justification for the restriction is that "One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value ..., but to the extent that it's in some measure deterred, the loss to public debate isn't that great -- speakers are still free to speak to others besides the person they're trying to annoy." And the same justification also extends to similar restrictions on harassing e-mail, which have recently sprung up. Yet we should recognize that the First Amendment issue is not entirely clear.

And the question is particularly unclear when the annoying speech is related to public debate, and especially when it's conveyed to public officials. In 1999, the D.C. Circuit set aside a harassment conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District); and the court seemed to suggest that speech "intend[ed] in part to communicate a political message" must be exempted from telephone harassment law. (Query, by the way, whether the same would apply to speech intended to communicate a religious message, a message on social issues, and the like.)

In any case, a similar question has just arisen in Washington state:

The Jan. 8 e-mail message, sent by "battleground anonymous" to members of the Battle Ground City Council, was a racist rant about Paul Zandamela, a black man who had been sworn in as a city councilman the previous evening.

"Our city government must be corrupt to have this (derogatory term) as an elected official," read the message in part. The message included four slurs and was signed, "Sincerely, a (derogatory term) hater."

That message and a subsequent note were traced to Christopher Reinhold, the son of Alex Reinhold, Battle Ground's deputy mayor ....

[Mayor Mike] Ciraulo received a second message that called him a "stupid (derogatory term) lover." ...

Reinhold is now being prosecuted for alleged "cyberstalking" based on his e-mail to Zandamela and Ciraulo (not his messages to other council members about Zandamela).

Please keep in mind, by the way, that telephone/e-mail harassment laws are very different from "hostile environment" harassment laws, and thus require different First Amendment analyses.

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Split Infinitives:

Here's what happens when you're enslaved by the myth that split infinitives are impermissible, discussed in detail by Geoffrey Pullum (Language Log):

The recent gift of a staggering $100,000,000 by a single person to Harvard University -- the largest gift from an alumnus in Harvard’s history -- has just been announced, in prose that suggests no matter how much money they may raise, the development and public relations staff at Harvard are afflicted by ancient irrational terrors:

David Rockefeller, a member of the Harvard College Class of 1936 and longtime University benefactor, has pledged $100 million to increase dramatically learning opportunities for Harvard undergraduates through international experiences and participation in the arts.

"To increase dramatically learning opportunities"? Feh. Read the post for more on the "unreasoning fear" of "a normal and fully grammatical construction of Standard English that is acknowledged as grammatical in even the most conservative reference works."

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Reading Book About KKK as Racial Harassment?

The matter seems to have been finally resolved, and resolved right (though the complaint should have been thrown out at the very beginning, rather than leading to a finding of racial harassment). Here's the letter from the Indiana University - Purdue University Indianapolis Chancellor:

I can candidly say that we regret this situation took place and that IUPUI takes this matter very seriously. IUPUI is committed to ensuring that its future approach to such matters is consistent with and affirms the long-standing commitment of this campus to the principles of freedom of expression, lifelong learning, and respect for the rights of all members of the IUPUI community. In the near future, IUPUI will be reexamining the campuswide affirmative action processes and procedures relating to internal complaints.
Thanks to the Foundation for Individual Rights in Education and the ACLU of Indiana for their work on this case.

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May Day: A Day of Remembrance for the Victims of Communism,

at Distributed Republic.

Related Posts (on one page):

  1. Victims of Communism Day:
  2. May Day: A Day of Remembrance for the Victims of Communism,
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"Who Is Responsible For America's Swollen Prison Population?": Bill Stuntz has an intriguing post on that topic over at Less than the Least.
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Notable Shift in Party Identification from 2004 to 2008: A few days ago, the Pew Research Center released a fascinating report on shifts in party identification among various types of voters. A taste:
  Since 2004, identification with the Democratic Party has increased across all age groups. Four years ago, 47% of all voters identified with or leaned toward the Democratic Party, while 44% identified with or leaned toward the GOP. In surveys from October through March, Democrats held a 13-point party identification advantage (51% to 38%).
  Perhaps the most striking change since 2004 has come among voters born between 1956 and 1976 -- the members of Generation X and the later Baby Boomers. People in this age group tended to be more Republican during the 1990s, and the GOP still maintained a slight edge in partisan affiliation among Gen X and the late boomers in 2004 (47% identified with or leaned toward the GOP while 44% described themselves as Democrats or leaned Democratic).
  Currently, 51% of voters in this age group affiliate with the Democratic Party or lean Democratic compared with 39% who describe themselves as Republicans or lean toward the GOP. Thus voters in Gen X and the latter part of the Baby Boom -- the most Republican age cohort four years ago -- now are about as Democratic as are older age groups, the early Baby Boomers and the so-called Silent Generation.
  Still, the youngest voters -- the members of Generation Y, born in 1977 or later -- continue to stand out as the most Democratic age group. The Democrats' identification advantage among Gen Y voters, which was 13 points in 2004 (52% to 39%) has nearly doubled in the current presidential campaign to 24 points. The current generation of young voters, who came of age during the George W. Bush years, is leading the way in giving the Democrats a wide advantage in party identification, just as the previous generation of young people who grew up in the Reagan years -- Generation X -- fueled the Republican surge of the mid-1990's.
Thanks to Andrew Sullivan for the link.
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Wright & Solum on the Future of Law & Economics: On Legal Theory Blog, Larry Solum is on a roll. He has an interesting take on Josh Wright's blog post at TRUTH ON THE MARKET on the future of law and economics. Here is a taste of Wright:
One consequence of the increase in formal theory and empirical work is increased specialization in economics, and therefore, in economic analysis of the law by economists. Most young economists graduating from top programs either model or do empirical work, but not both. It is also the case that the economics discipline has become specialized across fields in the sense that many disciplines do not “talk” to one another or across their respective literatures. I had this discussion with a financial economist the other day who was lamenting the lack of sophisticated in that field with respect to industrial organization economics. I suspect increased specialization has resulted in a similar detachment between many other fields in economics as well. There are many benefits from this sort of specialization. But I think it is now clearly the case that most job market candidates in L&E are either theorists or econometricians, not both. I suspect that law departments will tend towards hiring the econometricians because many lawyers are able to at least understand the intuition of regression models and read results but very few are able to read and understand theoretical models of the type published in top economics journals. But I suspect the days of the “general L&E” scholar who does theory, empirics, and dabbles in some legal doctrine are numbered.
Here is a portion of Solum's reaction:
Over time, this orientation (towards the "home" discipline of the interdisciplinary scholar) results in the issues that Wright identifies--the increasing disconnect between law and economics scholarship and the interests of the legal academy. One possible effect is that "informal law and economics" will be crowded out. But this is not the only scenario. The alternative is the gradual decline of the interdisciplinary model and a turn towards multidisciplinarity as the alternative. (A word on that below.) This movement could be manifested in a variety of forms. For example, as the work of law and economics scholars becomes increasingly inaccessible to even their "informal law and economics" colleagues, it seems inevitable that their work will be considered increasingly marginal to the mainstream of law school faculties. This could result in the "sophisticated law and economics scholars" moving to tighter affiliations with Department of Economics. The path of migration might go: courtesy appointment becomes quarter-time appointment becomes half-time appointment with the end point being "zero time" in the law school. This path offers the "sophisticated law and economics scholar" the opportunity to interact with colleagues who understand their models and methods, and relieves law schools of the opportunity costs of supporting work that increasingly has no "cash value" except within the community of subspecialists. Rather, that "crowding out" informal law and economics, the result might be to make room for economic work that is accessible to the legal academy.

[snip]

A second path is the mutlidisciplinary model. One way of thinking about multidisciplinarity is by looking to political science. Poltitical scientists who develop formal models are trained in political science models: there are is "Positive Political Theory" or "Formal Political Science" and not "Political Science and Economics." Graduate students are trained in the basics of the major methodologies, including political theory, institutionalism, positive political theory, and so forth. They then specialize in one of the methodological approaches within political science. If law were to follow this path, it would require the creation of multidisciplinary PhD programs in law that introduced future legal academics to empirical legal studies, positive legal theory, formal legal models, normative legal theory, advanced doctrinal methods, and so forth.

A third path leads back to the professional school model, with all of the attendant advantages and disadvantages of the academic-lawyer generalist, whose only rigorous skill sets are case crunching, code crunching, and clause crunching. Such generalists translate the work of other disciplines (sometimes with egregious errors), but they do not generate new interdisciplinary knowledge. If this path is taken, then interdisciplinarity will gradually fade into the background, with legal philosophers, empiricists, and economists slowly disappearing from legal academia as they migrate to other departments or retire.
If you are interested in law and economics you should read both posts.
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Larry Solum on Semantic Originalism: Originalist theory has made great strides in recent years. Among the most insightful of these theorists is Larry Solum, whose Legal Theory Blog is a must read for law professors and academically inclined law students. Solum's important new paper, Semantic Originalism, is the most systematic and careful explication of originalist methodology ever presented. Anyone who is seriously interested in constitutional interpretation in general and originalism in particular must read this paper. But for those who have more of a passing interest in this subject--or to get a sense of why the paper is worth reading in its entirety--you should check out Solum's blog posts responding to a series of thoughtful questions posed by Steve Griffin on Balkanization. Two installments are now posted. At the beginning of the first (located here), Solum summarizes semantic originalism:
First, the central aim of semantic originalism is to disentangle the different kinds of claims that play a role in contemporary theoretical debates over originalism. Some claims are nonnormative claims about "meaning." But once we say "meaning," there is potential for misunderstanding, becuase "meaning" is an ambiguous term: I am using "meaning" in the sense of "linguistic meaning" or "semantic content." Other claims in the originalism debate are about the relationship between the semantic content of the constitutional text and the content of consittutional law--these claims are legal claims. In theoretical terms, they are claims about the rule of recognition and the role that it assigns to the constitutional text. And a final set of claims are normative (or claims of political morality): these are claims about what how whether we should respect constitutional law, and whether we shoudl affirm or reject our current legal practices.

Second, Semantic Originalism deploys a technical distinction between "construction" and "interpretation." The basic idea of the distinction is that there are two distinction activities involved in the movement from constitutional text to application. The first activity, "constitutional interpretation," is the determination or discovery of the semantic content or linguistic meaning of the constitutional text. The second activity, "constitutional construction," involves the translation of the semantic content into rules of constitutional law. When the meaning is plain (neither vague nor ambiguous), then the interpretation and construction happen without our even noticing: the constitutional text gives each state two senators, that means two senators, and the legal rule is two senators. But sometimes the text is ambiguous: in the strict sense, "ambiguity" occurs when a word, phrase, or expression has two or more possible meanings. Usually, we resolve ambiguity by interpretation: the context of utterance makes it possible to determine which sense provides the correct understanding of the meaning. Other times, the text is vague: in the strict sense, "vagueness" occurs when there are borderline cases. Usually, the resolution of vagueness requires a construction and cannot be resolved by interpretation. That's because it is usually the case that the semantic content is vague.

With those two distinctions in place, here is a summary of the four central claims of Semantic Originalism:

The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance. Here is an example. The constitution refers to "domestic violence." The meaning of this phrase did not change when the contemporary sense of "domestic violence" as "spouse abuse" entered linguistic practice. Instead, the original sense of "domestic violence" as (roughly) "riot, rebellion, or insurrection within a state" is the fixed.

The clause meaning thesis claims that the semantic content of each clause of the Constitution is given by the conventional semantic meaning (or original public meaning) of the text with four modifications:
The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time.

The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts.

The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say.

The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself.
The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis.

The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law.
In the first of his posts, located here, Solum addresses the question:
Solum provides a theory of how the various clauses (provisions) in the Constitution acquire meaning. But why is meaning limited to clauses? Articles might also have meaning, especially in relationship to one another. So some might view the message of Articles I, II, III as saying there should be three co-equal branches of government. And some view the entire Constitution as communicating a meaning best summarized in the Preamble. Is there a reason to limit meaning to clauses?
In his second post, located here, he addresses this question:
The Constitution is not annotated. Amendments were placed separately (not, as Madison wanted, inside the 1787 document) and do not have clauses that explain how they relate to the 1787 document. How do we synthesize the meaning of later amendments with the original document if their semantic meaning does not tell us how to do this?
If you are interested in originalism (either as sympathizer or critic) and cannot read the paper, Semantic Originalism, you should certainly follow Solum's blog posts this week.
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Pro-Economic-Freedom Legal Writing Awards for Students and Professors:

The Pacific Legal Foundation offers three new ones, one for students, one for untenured professors, and one for tenured professors, each at $5000. If you're interested in writing on the subject, or have already written a draft on it, check out the PLF's information page. Submissions (or, for tenured professors, proposals) are due July 1.

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Wednesday, April 30, 2008

Hmm, I Wonder Why This Show Never Went Anywhere: Over at Greedy Clerks, AWC wonders whatever happened to "Supreme Courtships," a planned TV show on Fox described as "a look at the personal and professional lives of six Supreme Court clerks." It seems that a pilot of the show was made but never shown. Why not?

  Thanks to the power of the Volokh Conspiracy, I've been able to get my hands on a top-secret synopsis of the pilot show:
Sally finishes her cert pool memos, recommending all "DENY" as usual. At lunch a heated debate breaks out in the law clerk dining room over who should win American Idol. Joe then tackles the briefs in an ERISA case for several hours before the Justice calls and wants to know the name of a tax case he wrote for the Second Circuit back in the late 90s. Then it's on to planning the Thursday law clerk happy hour -- barbeque this time. But will it be as good as the JPS clerks' happy hour last month? And what if it rains?
This is obviously pretty exciting stuff, so I assume it wasn't the plot line that kept the show from airing.
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Recent developments in North Carolina Polls.--

A Rasmussen tracking poll on Monday in North Carolina found Obama had a 14% lead over Clinton. A Tuesday NC poll by Insider Advantage found a 2% lead for Clinton.

Despite all that has happened this week, I doubt that both of these polls are right. But things are probably quite fluid in NC.

Given how far behind Clinton is in the delegate count, I think that she must beat Obama in both NC and Indiana to have a non-trivial chance of winning the nomination.

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Further Break Between Obama and Wright,

plus more on campaign transportation, here. Thanks to Michael Klein for the pointer.

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Woods Hole Creationist Loses Suit:

Via Tim Sandefur comes news that Nathaniel Abraham's lawsuit against the Woods Hole Oceanographic Institution has been tossed. Abraham, readers may recall, alleged he was a victim of religious discrimination after Woods Hole fired him as a biologist because he refused to work on "evolutionary aspects" of an NIH research grant. As I noted before, it seems to me that belief in evolutionary theory would be a bona fide occupational requirement for a research position in a biology lab. Abraham did not lose on the merits, however, as the district court dismissed the case on procedural grounds.

UPDATE: To qualify the above, I certainly accept that a belief in evolution is not a bona fide job requirement for any and all biology research positions. In this case, however, Woods Hole maintained that the application of evolutionary theory was a key component of the research grant under which Abraham was hired, and it's not clear that Abraham was even wiling to "fake it" in order to keep the job. More here.

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A Remarkable Definition of Terrorism from Jimmy Carter:

Carter on Charlie Rose (Transcript from Nexis): "I think any time any powerhouse takes military action when it's a high danger or almost an inevitability that women and children are going to be killed, I think that can be considered an act of terrorism, yes." Note that Carter's definition of "terrorism" means that no "powerhouse" can ever fight any war, no matter how justified, without being guilty of "terrorism" just as bad as the likes of Hamas (see below) or Al Qaeda--war, after all, just about always means a high danger of civilian casualties.

Here's the fuller context, which doesn't make Carter look any less foolish:

JIMMY CARTER I have condemned the shelling of a little town of Sderot, which I visited, and Ashkelon, which I also visited, as an act of unforgivable terrorism, because the people who suffered -- they have been shelling for seven years. Thirteen people have been killed. And the people of Sderot are living in terror. It`s a town of about 20,000 people. We spent a couple hours, two or three hours with the mayor. And you ride through this town and there`s nobody on the street. Nobody on the playgrounds.

CHARLIE ROSE: Right.

JIMMY CARTER: They're afraid of these rockets. Well, if you look at the statistics from last year, 2007, every time one Israeli was killed, 40 Palestinians were killed by attacks by Israel against Gaza. And if you just look at children, every time an Israeli child is killed, eight Palestinian children are killed. So you can't just say that all of the blame lies on one or the other.

So what I try to do...

CHARLIE ROSE: But more [blame on] one [Hamas] than the other [Israel]?

JIMMY CARTER I'm sorry?

CHARLIE ROSE: More one or the other?

JIMMY CARTER: I don`t even say that. You know, I think any time any powerhouse takes military action when it`s a high danger or almost an inevitability that women and children are going to be killed, I think that can be considered an act of terrorism, yes.

CHARLIE ROSE: So Israel is engaging in acts of terrorism?

JIMMY CARTER: I think both are equally guilty, yes.

Rose at some point also said some along the lines that Carter is almost universally considered a great ex-president. Rose doesn't travel is the same circles I do, obviously.

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[Robert Brauneis, guest-blogging, April 30, 2008 at 6:12pm] Trackbacks
Happy Birthday III - Why hasn't anyone challenged the copyright?

In yesterday's post, I argued that to get a court to uphold the 1935-2030 copyright in "Happy Birthday to You," Warner Music Group would likely have to convince the court of three things. It turns out that WMG would face difficulties with all three. The details are in my article ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624), but here's a summary:

  1. There's little or no evidence that Patty or Mildred Hill wrote the "Happy Birthday" lyrics. Indeed, Patty Hill testified in 1937 that she had written the original "Good Morning to All" lyrics, and that she had used the "Happy Birthday" lyrics, but she stopped conspicuously short of testifying that she had written the "Happy Birthday" lyrics. Over a hundred years after those words were first used with the Hill sisters' melody, no one is alive who could testify about their origin, and I have found no relevant documentary evidence — no drafts, no letters, nothing.

  2. The 1935 publications of "Happy Birthday to You" bore the copyright notice "Copyright 1935 by Clayton F. Summy Co." It is very likely that the Summy Company did not own copyright in the song at the time (it probably had an implied license for the song, and owned only the musical arrangments that its employees had made). Under then-prevailing precedent, and for several decades thereafter, if you published a work with copyright notice naming someone other than the work's owner, you forfeited copyright. However, here WMG might be able to take advantage of later changes in judicial attitude.

  3. The renewal registrations filed in 1962 — necessary to maintain copyright beyond 1963 — are only for the arrangements, and do not claim to renew the song itself. This is probably the point of greatest weakness in the copyright, and this issue could also likely be decided early in litigation, because the facts are clear.

So if there are these weaknesses, and if a $2 million per year income stream is at stake, why hasn't anyone challenged the copyright's validity? The short answer is that no single user is paying enough of that $2 million to make a challenge worthwhile, and it's extremely difficult for users to organize a collective effort.

In recent years, about 35% of the "Happy Birthday" income has come from performance rights licensing through ASCAP. (I can make this estimate because I discovered that there has been litigation over the alleged mishandling of a trust funded by "Happy Birthday" royalties, and I got access to the court files, which include income reports.) ASCAP collects money from thousands of restaurants, bars, and radio and TV stations for "blanket licenses" covering all of the millions of songs that are in its repertoire. The price of the licenses don't change when individual songs go in or out of copyright. That means that the licensees don't have an incentive to challenge the copyright on one song (and a court might even rule that they couldn't). Other music publishers that receive royalties through ASCAP might be able to mount a challenge, but there may be too much glass in their own houses to start throwing stones.

The remaning 65% comes from all other licensing — for uses in movies, on TV, in ads, and so on. Here's one small example I just learned of from a woman who e-mailed me yesterday from Australia. She was involved with an Australian movie called "Annie's Coming Out". It's about a social worker who works at a hospital for mentally disabled children. During one scene in the movie, a group of children with multiple sclerosis sing "Happy Birthday" to another child with MS. When the movie was released (on a very small scale) in the US in 1984, its producers had to pay WMG's predecessor $5000 to use the song.

Licenses for bigger US releases probably cost more (IMDB lists 176 movies that feature "Happy Birthday to You" but it misses "Annie's Coming Out"). But even, say, $30,000 is not nearly enough to consider funding copyright litigation. And in my article, I consider coordination problems that make it unlikely that a group of "Happy Birthday" users will ever find each other and jointly finance litigation. The result is that the copyright in the song will probably never be tested.

Ultimately, this is not just about one song. There are almost certainly other works out there generating significant licensing income in spite of serious copyright weaknesses. However, I don't see any easy fix.

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Man Buys Lemonade for His 7-Year Old Son During Baseball Game, State Moves Son to Foster Care: Here's a remarkable story. "Hard lemonade, hard price: Dad's oversight at Tigers game lands son in foster care." Via Discourse.net.
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Lesbian-on-Lesbian Action:

An alternate title for the post below, just to bring traffic. (If you're a non-lawyer, see definition 14 for the relevant definition of "action.")

Related Posts (on one page):

  1. Lesbian-on-Lesbian Action:
  2. Life Imitates the Volokh Conspiracy:
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My Very Slight Contribution to the "Pansy-Gate" Discussion:

The line is reported at :

North Carolina Gov. Mike Easley (D) made his endorsement official this morning, saying that Hillary Clinton “gets it” and is a fighter who he said “makes Rocky Balboa look like a pansy.”

The editor of the Washington Blade (I'm still embarrassed that it took me years to get the pun in its name) reports on the controversy and dismisses it as overreaction (thanks to InstaPundit for the pointer).

But my thought, prompted by a glance in the Oxford English Dictionary, is that maybe we're misunderstood Gov. Easley:

3. slang.

a. A remarkable or outstanding person. Cf. DAISY n. 5. Now disused.

1899 G. ADE Fables in Slang 63 The Parishioners did not seem inclined to seek him out after Services and tell him he was a Pansy. 1920 G. ADE Hand-made Fables 62 For every Pansy in this conservative Town there were 14 Rutabagas.

Maybe he meant that for every pansy in the Senate race there are 14 rutabagas. Or for every pansy in Philadelphia. Or that Rocky was a pansy, and Hillary is a rutabaga? Not sure, but I thought I'd point out the possibility. Mmmm, rutabagas.

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More Statistics:

I stress again — it may well be that many or even all the FLDS parents are guilty of various crimes. But it's also important, in this case as well as in others, for the media to report statistical information in a useful way.

Take, for instance, this MSNBC headline, "Official: History of injuries to polygamist kids / At least 41 had broken bones; possible sex abuse of boys investigated." At least 41 kids have had broken bones — sounds like a serious problem.

But 41 out of how many? Paragraph seven reveals this: "More than 450 children are in state foster facilities from the raid."

What about the other information that would be necessary to make this data make sense? I refer, of course, to how many kids normally have broken bones without abuse. I don't know the percentage, but a quick Google search found [UPDATE: this replaces a much less reliable estimate I'd originally found] this study, which puts the risk of bone breakage at 1.3% per year per child (for 0-to-12-year-olds). Assuming this carries over to 0-to-18-year-olds (perhaps a mistaken assumption, especially since "The incidence increased linearly with age" up to age 12, but let's use it as a back-of-the-envelope estimate), this yields an estimate of about 20-25% of all minors having had a broken bone, which is to say that a minor of average age would have about a 10-12% chance of having had a broken bone. This can't automatically carry over to the FLDS kids, of course, for a variety of reasons; this is just one study that I quickly found; and some part of the broken bones reported in the study of may themselves have been caused by abuse. But still the "41" figure (which, recall, refers to children who "have had broken bones in the past") seems a lot less striking when one turns it into "under 10%" (41/450), and even less striking when one asks how this compares to the normal broken-bone rate among unabused children, which the study I found suggests is roughly 10% for the average child.

Now I stress again: Many of the FLDS kids might have been physically abused, even beyond the seeming early marriages of some of the girls and the alleged forced marriages of some of the girls and expulsion of some of the boys. The abuse rate might be higher than average. Of course the total broken bone rate may well be much higher than 10%, because not all the broken bones might have been identified. Sexual abuse at any rate, whether of teenage girls or young boys, is a serious crime that should be punished. And if there was indeed evidence of sexual abuse of young boys (with "young" meaning very young) then the removal of even small children might have been justified, contrary to my arguments below, which were based on press accounts that at the time had focused solely on the alleged sexual abuse of teenage girls.

But the particular news account here strikes me as a highly unhelpful, and potentially misleading, use of statistics, because it (1) includes the numerator in the headline, and leaves the denominator for paragraph seven, and (2) suggests that the number is significant evidence of abuse, without even trying to provide a comparison with the broken-bone rate among ordinary, nonabused children. The story does later quote the state agency as saying, "We do not have X-rays or complete medical information on many children so it is too early to draw any conclusions based on this information, but it is cause for concern and something we’ll continue to examine," but that does little, I think, to undercut the attention that MSNBC focused on the 41 number in its headline.

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What Are the Ages of Consent Throughout the Western World?

The recent discussion made me wonder about the actual legal norm as to general ages of consent. I set aside for purposes of this post what implications this data might have (though I hope to post soon some modest remarks on this, recognizing that of course the "ought" may well be quite different from "is," and inevitably has to be, given how many different "is"es there are).

Here I just want to summarize the data, which I've posted in this Excel spreadsheet. The age of consent information is based largely on Wikipedia (check out this map) and CoolNurse, with a little bit of checking on my part; certainly any scholarly work on this would have to rely on more reliable data, but this struck me as close enough for the rough aggregate results I'm reporting.

A few notes about how I chose the jurisdictions to survey. First, I thought that it would be most helpful to talk both about the U.S. separately, and the Western World more broadly, since we are part of a broader Western culture that shares a good deal in history and values, so that the other Western countries' judgment would at least be of some interest to us. The boundaries of the Western World are of course not precisely defined, but I basically chose the U.S., Europe West of the Iron Curtain (though including all of Germany and excluding the pinpoint countries), plus the Western Anglosphere, which is to say Australia, Canada, and New Zealand. My sense is that these are the countries that are most likely to be closest enough to us in cultural history and other values.

Second, I focused on what I call the "general age of consent," which excludes lower ages of consent when the other partner is within some range in age, or when the parties are married (which would generally require parental consent), and also excludes higher ages of consent when the other partner is in some specific position of authority over the younger partner (plus an unusual Massachusetts rule which sets the age of consent at 18 if the younger person is "of chaste life," the age otherwise being 16). Third, I focused (partly for the sake of convenience and partly because of the special moral significance of legal rules) on the legal rules, and not on social practices, which might on one hand frown on certain relationships that are legal, and on the other decline to enforce the law as to certain relationships that are illegal.

In any case, here's the summary of the data:

  1. Throughout the Western World (population 750 million), sex is generally permitted with (for all items but the last, I give a percentage that includes the lower age-of-consent countries)

    • 13-year-olds for 6% of the population (Spain);

    • 14-year-olds for 27% of the population (add Austria, Germany, Iceland, Italy, and Portugal;

    • 15-year-olds for 38% of the population (add Denmark, France, and Sweden);

    • 16-year-olds for 77% of the population (add nearly all the remaining Western countries and 30 U.S. states plus the District of Columbia);

    • 17-year-olds for 88% of the population (add Ireland, South Australia, and Tasmania and 8 U.S. states);

    • only 18-year-olds and above for 12% of the population (12 U.S. states).

  2. Within the U.S., the general age of consent is

    • 16 in 30 states plus D.C. (representing 45% of the population);

    • 17 in 8 states (representing 25% of the population);

    • 18 in 12 states (representing 30% of the population, California and Florida accounting for the majority of this).

  3. The median in the U.S. is thus age 16 if you go by state count, but 17 if you go by population, though nearly half the population is in the age-16 states.

  4. The median in the U.S. plus the Anglosphere is solidly age 16.

  5. The median in the Western World is also 16.

  6. The median in Western Europe is 15 (with 63% of the population living in 15-or-below countries).

  7. Throughout the U.S., the general age of consent is always 16 or above (though this has been so only for the last several years). In the rest of the Western World, the general age of consent is always 16 or below, except for Ireland, South Australia, and Tasmania, which together account for a little over 1% of the non-U.S. Western population.

I stress again: I'm giving these numbers as potentially interesting data; I hope to talk in a later post about the implications of this data, but for now I just want to note the data. If there are errors in the data, please e-mail me corrections. And naturally please do not rely on any of this age-of-consent data as legal guidance for your own personal behavior ....

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Life Imitates the Volokh Conspiracy:

Last Summer, I asked,

Can anyone who knows something about modern Greece tell me what (if anything) the inhabitants of Lesbos -- Lesvos in modern Greek, I believe -- think about the term "lesbian"? Do they perceive it as annoying? Offensive? Amusing? Is there no dominant view on the subject? ...

A separate question, which might make some point, but which I stress is analytically distinct from the empirical questions I ask above: Say that the inhabitants of Lesbos find the term offensive. Should others, including lesbians, try to shift to a different term? Or should they go ahead with the term that they've used for a long time?

This Spring brings this lawsuit (from the AP):

Three islanders from Lesbos ... have taken a gay rights group to court for using the word lesbian in its name.

One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians.

"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said.

[Lambrou and two women] are seeking to have the group barred from using "lesbian" in its name ....

Lambrou said the word lesbian has only been linked with gay women in the past few decades. "But we have been Lesbians for thousands of years," said Lambrou, who publishes a small magazine on ancient Greek religion and technology that frequently criticizes the Christian Church....

"Lesbian" as an Appellation d’origine contrôlée (a term closely linked to the term "geographical designation" that Lambrou uses)? OK, not quite, but still, intellectual property scholars should take note. Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Lesbian-on-Lesbian Action:
  2. Life Imitates the Volokh Conspiracy:
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Obama, Wright, and the Problem of Nutty Friends:

I've been reding Jim's posts on Obama and Wright as well as chatter here and elsewhere about Obama's acquaintances with Bill Ayers and Bernadine Dohrn. The comments to Jim's posts have been quite interesting also (at least to me). So I thought I'd throw another log on the fire.

I have no inside knowledge of any of this, but here's my impression as to what is going on. I think that much of this commentary is quite unfair to Obama and somewhat misplaced. One issue that has arisen, for instance, is whether Obama's criticism of Wright following his news conference is sincere or not. Another is whether Obama should have done more to "distance" himself from Ayers and Dohrn or denounced them more publicly. Based on what I've read, I think these are unfair to Obama.

By all indications, Obama seems like an extremely decent guy. Everyone who I have talked to who has ever known him personally says that he is a decent guy. He seems like the kind of guy who tends to look for the best in people, rather than the worst, and seems like the kind of guy who is quite ready to forgive the foibles and nuttiness of friends and relatives. I have no reason to know for sure whether this is true, but seems consistent with what I have observed.

I suspect that all of us have friends, relatives, and colleagues who are basically good, conscientious, and kind people, but who have some political views that are pretty nutty. I have an uncle who in 1999 liquidated all of his assets and converted them to gold coins then moved to a remote undeveloped part of Hawaii because he was so afraid of Y2K and that martial law was going to be imposed on the United States. I have a friend who is a self-proclaimed anarchist environmentalist anti-globalization activist. I'm sure that Alan Greenspan didn't agree with everything that Ayn Rand believed and I know a lot of friends of Murrary Rothbard didn't agree with a lot of what he wrote. And just recall all the hubbub about Ron Paul's old newsletters.

Moreover, there is the problem that based on my experience it seems like some people just get nuttier as they get older. From all appearances this may describe Jeremiah Wright, but I'm sure many of us have cranky relatives who this describes as well.

So what? So I think that when it comes to dealing with friends with nutty political views we are friends with them despite their nutty opinions not because of them. When I hear someone go into a diatribe about how the income tax is unconstitutional, how civilization is going to be ruined by global warming, or some other such thing, usually all I do is sigh, roll my eyes, and try to change the topic. If someone is 95% normal (or even admirable) and 5% nut, so long as they keep their nuttiness out of my face most of the time I don't go out of my way to argue with them, correct them, or make a big show out of denouncing them. Why argue with a crazy person? This is especially so if someone is an old friend from way back who I knew in a completely different context of our lives. I think that this is what Obama may have been alluding to when he referred to the fact that Sen. Coburn is his friend despite his apparent view that abortionists should be given the death penalty--Obama is friends with Coburn despite his views on that issue, not because of his views on that issue (leaving aside whether that is an accurate description of Coburn's view). It seems obvious to me that that Obama wasn't seriously comparing Coburn to Ayers (as some have suggested) but simply trying to use an analogy to suggest that he respects and works with Coburn despite what many people believe to be a pretty nutty view.

So, if I had to guess, when it comes to Wright's more inflammatory statements it sounds like Obama seems like the sort of guy who probably pulled the "sigh and roll your eyes" approach. I also suspect that the nutty stuff we are hearing about was not the steady diet served up by Wright, but rather occasional statements or sermons here and there sprinkled in among normal church preaching. Perhaps Wright has gotten more radical or frequent with his rants as he has gotten older. So maybe Obama had to roll his eyes more frequently too.

Friendship is not necessarily based on someone's political views, no matter how goofy or even hateful, especially if the person is not sticking their views in your face all of the time. It is also appropriate not to be friends with someone whose political views you abhore, especially if they are flamboyant about it. But whether someone holds mainstream political views is not the basis on which acquaintances are built. If you have a sincere affection for someone built up over many years, you tend to forgive their occasional lunacies. Especially if it is a person who you came to respect, admire, and befriend many years before, perhaps when that person was not nuts. To me, I don't necessarily see it as a flaw in Obama that he hasn't made a big show of denouncing Wright or Ayers until he was forced to. I do think that he probably is fed up with Wright from the standpoint that he has tried to treat Wright with the respect that he sees owed to a longstanding pastor who is now making a public embarrassment of himself. He has tried to be patient with Wright in hopes that Wright would sober up, but instead Wright just keeps pouring it on, at which point Obama says "enough." So it seems reasonable to me that Obama has been largely sincere through this whole process, first in trying to give Wright an opportunity to clean up his act but then to say "enough" when Wright refused to do so.

As I said, Obama seems like quite a decent guy. I'm not going to vote for him because of his policy views but he still seems like a decent guy. He has a lot of tolerance for nutty political views, but anyone who hangs around academia or any political movement will certainly have friend and acquaintances who have nutty political views. If you are a basically decent and compassionate person you try to look for the best in people and work with everyone, not throw aside friends just because you don't agree with their political views. Moreover, if you have a friend who has idiotic political views you don't run around adding to his embarrassment making a public spectacle out of denouncing those views, but instead I would think that you would hope that the guy would wisen up.

Thus, I also don't think it is fair to ascribe much of any of these relationships to Obama because I haven't seen any shred of evidence that he condones or agrees with any of the views expressed by Wright or Ayers (his wife may be a different story). On the other hand, I do find it somewhat implausible for Obama to imply that he didn't know that Wright held and expressed some nutty views or became more of a nut over time.

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Judge Merritt & the Case of Marvallous Keene:

In July 2006 I blogged about an odd case in which Senior Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit issued a last-minute stay of execution for convicted murderer Sedley Alley, despite not being on the panel that had heard Alley's latest appeal. The stay was quickly vacated with an order that chastised Judge Merritt for his apparently unusual action.

The post prompted a vigorous debate in the comments over the propriety of Judge Merritt's actions, and the broader divisions over death sentences within the Sixth Circuit. One commenter charged that Merritt was a staunch opponent of death penalty, and challenged readers to identify "a single case since [the late 1970s] in which Merritt voted to uphold a death sentence." Here's one from last Friday: Keene v. Mitchell.

In Keene, a unanimous three judge panel consisting of Judges Merritt, Sutton and Siler rejected Marvallous Keene's habeas petition. Keene had waived his right to a jury trial, and was convicted on eight counts of aggravated murder (among other things) by a three-judge panel in an Ohio court, resulting in five(!) death sentences. In federal habeas proceedings, Keene challenged his convictions on Due Process and Equal Protection grounds. The district court rejected Keene's claims, and Judge Merritt joined Judge Siler's brief opinion affirming the district court.

NOTE: Link is now fixed. I had inadvertently linked to another Sixth Circuit habeas decision -- a divided opinion from yesterday in Johnson v. Bell -- that I also hope to blog about, time permitting.

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Decision of the Day Calls It One: Legal geeks around the blogosphere will be saddened to learn that the outstanding Decision of the Day blog has closed up shop. I still don't know who "Bob Loblaw" is, but his work was a real service to readers: beyond doing the work of finding new cases, the blog was informed, well-written, and substantive. Bob, thanks again for all your time.
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Althouse parsing the Obama transcript.--

Ann Althouse has an excellent post parsing what Barack Obama was — and was not — saying yesterday. As I indicated yesterday, Wright's betrayal of Obama is a big part of it.

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Not a recession (yet).--

By one of the two main ways of determining a recession, we were NOT in a recession in the Jan-March quarter:

The bruised economy limped through the first quarter, growing at just a 0.6 percent pace as housing and credit problems forced people and businesses alike to hunker down. The country's economic growth during January through March was the same as in the final three months of last year, the Commerce Department reported Wednesday. The statistic did not meet what economists consider the definition of a recession, which is a contraction of the economy. This means that although the economy is stuck in a rut, it is still managing to grow, even if slightly.

Many analysts were predicting that the gross domestic product (GDP) would weaken a bit more — to a pace of just 0.5 percent — in the first quarter. Earlier this year, some thought the economy would actually lurch into reverse during the opening quarter. Now, they say they believe that will likely happen during the current April-to-June period. "The economy is weak but not collapsing," said Lynn Reaser, chief economist at Bank of America's Investment Strategies Group. "A recession can't be ruled out, although the stars are not lined up at this point to definitively say one way or the other."

Gross domestic product measures the value of all goods and services produced within the United States and is the best measure of the country's economic health. Voters are keenly worried about the country's economic problems and so are politicians — in Congress, in the White House and on the campaign trail.

White House press secretary Dana Perino said the administration was disappointed in the figures. "This is nothing to crow about," she said. "It is very slow growth, but it is growth nonetheless."

The housing situation turned more bleak in the first quarter, as record-high foreclosures dumped more unsold homes on the market, adding to builders' headaches. Builders slashed spending on housing projects by a whopping 26.7 percent, on an annualized basis, the most in 27 years. That was the biggest drag on the economy. Consumers — whose spending is vital to the country's economic health — turned much more cautious, also restraining overall economic growth in the first quarter. Their spending rose at just a 1 percent pace. That was down from a 2.3 percent growth rate and was the slowest since the second quarter of 2001, when the United States was suffering through its last recession. Shoppers did cut spending on such things as cars, furniture, household appliances, food and clothes.

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The British Threat to Free Speech:

Floyd Abrams, arguably the nation's most accomplished First Amendment lawyer, has an interesting op-ed in today's WSJ on the potential impact of British libel law on free speech in the United States.

Today, there are sharp distinctions between U.S. and English law. One difference is that under the First Amendment we provide far more protection for speech that is claimed to be libelous.

There is no need for democratic nations to agree upon such matters. The values of free speech and individual reputation are both significant, and it is not surprising that different nations would place different emphasis on each.

But a serious problem has surfaced. In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.

England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.

The solution, according to Abrams, is legislation that would enable individuals to obtain declaratory judgments in U.S. courts that their works are protected under American law under the First Amendment, so as to prevent the enforcement of foreign libel judgments in U.S. courts. He concludes:

England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the "uninhibited, robust and wide-open" manner that the First Amendment was drafted to protect.

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Similarities Between Crawford and McConnell:

I agree with Orin that the Supreme Court's Voter ID decision shares a structural similarity with that in McConnell v. FEC. It seems to me that another parallel between the two cases is the extent to which voter perceptions about the integrity (or lack thereof) can form the basis of a governmental interest that can justify regulation of election-related activities.

In McConnell, the Court held that the government had an important interest in preventing "the eroding of public confidence in the electoral process through the appearance of corruption," that could justify regulation of campaign contributions and campaign-related speech. Similarly in Crawford, the Court held that public concerns about election integrity were a legitimate government interest that could justify a voter identification requirement. In each case, this interest is independent of any actual threat to campaign or election integrity, and arguments that the measures in question are unwise or ineffective at preventing actual threats are not particularly responsive. What matters is that the measures in question have the potential to increase public confidence in the electoral system as a whole.

In the voter identification context, this would suggest that it does not matter whether absentee ballot fraud poses a far greater threat to election integrity than in-person voter fraud. Nor does it matter if a voter identification requirement will not deter enough voter fraud to alter election outcomes. What matters is that the average American voter believes that such a requirement is a common-sense measure to prevent fraudulent voting, and that if an ID is required for everyday economic transactions, it can surely be required when voters participate in collective decisions about how our government is to be run.

I am more sympathetic to the Court's decision in Crawford than in McConnell, but I think this parallel between the two cases is quite interesting, and may have important implications for the constitutionality of additional election reforms going forward.

Related Posts (on one page):

  1. Similarities Between Crawford and McConnell:
  2. Voter ID and Campaign Finance:
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Was Rev. Wright Obama's Spiritual Mentor or Spiritual Adviser?--

I was struck by Barack Obama’s blaming the press for identifying Reverend Wright as his spiritual mentor or spiritual adviser:

OBAMA: I know that one thing that [Wright] said was true, was that he wasn't — you know, he was never my, quote-unquote, "spiritual adviser."

He was never my "spiritual mentor." He was — he was my pastor. And so to some extent, how, you know, the — the press characterized in the past that relationship, I think, wasn't accurate.

I had always thought that this notion came from Obama himself. A LEXIS search of news articles tends to indicate that it was Barack himself who so identified Wright, at least initially. But then, of course, perhaps the press repeatedly misreported what Obama told various reporters over the last four years.

Here are some of the news stories I found (all except the last are over a year old):

'I HAVE A DEEP FAITH,' Chicago Sun-Times, April 5, 2004

These days, [Obama] says, he attends the 11 a.m. Sunday service at Trinity in the Brainerd neighborhood every week — or at least as many weeks as he is able. His pastor, Wright, has become a close confidant.

Race Against History, The New Republic, May 31, 2004

Shortly before leaving Chicago for Harvard, he had a meeting with the Reverend Jeremiah Wright, the charismatic black pastor of Trinity United Church of Christ, one of the most socioeconomically diverse all-black congregations in Chicago. Obama was taken with Wright's worldview, perhaps best encapsulated by a Trinity brochure proclaiming that, "while it is permissible to chase `middleincomeness' with all our might," ambitious African Americans must beware the "psychological entrapment of black `middleclassness' that hypnotizes the successful brother or sister into believing they are better than the rest of US."

Sen. Barack Obama's Pastor Frames Progressive Issues Through Lens of Faith, Religion News Service, March 10, 2005

But when talking about how religious conservatives have pushed issues such as gay rights and stem cell research into the forefront, [Wright’s] voice becomes taut and his rebuke direct.

Those who focus on these issues are building themselves up at the expense of others and, while the Bible has many references to right and wrong, Jesus only spoke against people who judged others, Wright says.

"Are you following Jesus when you are vilifying people?" Wright asks. "The answer to that question is no."

It's no coincidence that Wright's response to these issues is similar to that of Obama, Illinois' newest senator and one of the Democratic Party's leading lights in trying to frame traditional liberal issues as moral and religious imperatives.

Obama met Wright 20 years ago in the process of trying to get Wright's Trinity United Church of Christ involved in some community organizing he was doing. Ever since, Obama has been a devoted member of Wright's church. Obama says that Wright is not only his pastor, but he also is his friend and mentor. And Wright is one of the people to whom he turns [to] help him explain how his liberal positions jibe with his faith.

The fact that Obama chose Trinity is no accident. In a sea of conservative black churches, Trinity stands out in that it has welcomed in gay members, done outreach to people living with AIDS and advocated progressive positions on many social issues. . . .

Today, Wright is quick to call those who voted for President Bush "stupid" and chastise the public for letting issues like housing for the poor "fall off the radar screen." . . .

Obama says one of the things he has learned from Wright is that the Bible is full of references to poor people and how they should be treated. This, Obama says, is one of the points he would like Democrats to point out when Republicans try to take the religious high ground with talk of moral values.

Wright is there to give further guidance.

First, he says Democratic leaders need to understand why so many people feel threatened by gay people.

"Is it that people have linked homosexuals with pedophiles?" Wright asks. "Was it that they were molested as a kid? There are all kinds of emotional stuff that come up. We have to stick with it and hear each other."

Keeping the Faith, In These Times, February 28, 2005

Wright and Obama developed a close relationship in the intervening years, and Obama counts the Reverend among his spiritual advisers. When a reporter asked Wright what advice he would give Obama upon election to the Senate, Wright said, "My advice to him: Please stay the same as you've been ever since I've known you."

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Tuesday, April 29, 2008

The ABA and Law School Affirmative Action: In yesterday's Wall Street Journal, Gail Heriot had an interesting essay on the role of the American Bar Association in requiring affirmative action programs at law schools as a condition of accreditation. (hat tip: Overlawyered)

  UPDATE: There were a few posts on this topic here at the VC two years ago; you can read the thread here.
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"The Progressive" Defends Rev. Wright.--

In a magazine called “The Progressive,” Ruth Conniff writes this anti-progressive article in defense of Rev. Wright:

Watching Jeremiah Wright's speech to the National Press Club Monday morning was both cathartic and alarming.

Cathartic because, after weeks of the endlessly repeated soundbites from his controversial sermons, which have been used to tar his former parishioner Barack Obama, Wright got to speak up for himself. He spoke plainly about racism, his own leftwing political point of view, and what he called, wryly, "this unknown phenomenon of the black church."

Much of what Wright said was absolutely true--yet too hot for white America, for the National Press Club, and for a mainstream U.S. Presidential campaign. It was not great for Obama, whom Wright hinted has distanced himself from his former minister only because he's "a politician" doing "what politicians do.”

In his appearance on Bill Moyers' show Friday, as well as his Press Club speech, Wright blew away any hope the Obama campaign may have had that he would stay mum and let the storm of controversy he kicked up with his impolitic sermons pass.

Instead, Wright came out swinging, mocking the media for knowing nothing about the black church, for taking soundbites from his sermons out of context, and, basically, for being lazy and ignorant. . . .

At times he seemed cocky, clearly enjoying putting his Press Club hosts' noses out of joint and playing to the crowd of supporters. At times he seemed a little confused, saying both that Obama had and hadn't distanced himself from Wright within the space of a minute.

He talked a lot about reconciliation, but at the same time, in heated terms, he outlined the ugly history of racism in our country, from slavery to Jim Crow to the Klan to gross economic disparities today. There was a lot of anger visible under the surface of that tight smile. And, most alarmingly for the Obama campaign and its supporters, there was ample fodder for more endlessly recycled sound bites. Fox News will have a field day.

It was striking to hear the themes of Wright's speech: the criticism of U.S. militarism and imperialism, racial and economic injustice, the references to progressive figures from Cornel West to Jim Wallis, and watch the audience and the press corps react.

Most progressives, and even most Democrats, understand where Wright is coming from. Just as Bill Moyers made reference to his previous encounters with Wright and the friends they have in common, many of the touchstones of his politics are familiar to both black America and progressive America.

What will this mean for the rest of the nation?

To be sure, Wright's refusal to denounce Louis Farrakhan, his angry-sounding declaration that Farrakhan didn't put him in chains or "make me this color," his assertion that "yes, I believe our country is capable of doing anything" in answer to a question about whether he thinks the United States deliberately infected black people with AIDS will be held against him.

But the audience of his friends and supporters ate up his strikes back against what has surely been a racist and unfair campaign against him. Wright's 9/11 sermon, though it looks, in soundbite form, supremely insensitive, was actually a profoundly moving statement on the tragedy and on the desperate, destructive logic of revenge.

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"Japanese To Patent Transparent Frog":

So reports The Register (U.K.). "The scientists reckon this will make biological research -- not to mention school biology lessons -- signifcantly less messy and traumatic, as it will no longer be necessary to cut the slime-filled creatures up in order to examine their innards."

By the way, while some frogs' skin might feel slimier than ours, aren't we all "slime-filled"?

Thanks to Michael Barclay for the pointer.

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Obama on Wright: He Really Means It This Time.--

Today, Barack Obama vigorously denounced the words of Reverend Jeremiah Wright and said that his relationship with Wright had changed, but stopped short of explicitly disowning him.

So how is this any different than the last time, his speech in Philadelphia? This time Obama seems actually to mean his denunciations:

SENATOR BARACK OBAMA: . . . Yesterday, we saw a very different vision of America. I am outraged by the comments that were made and saddened over the spectacle that we saw yesterday.

You know, I have been a member of Trinity United Church of Christ since 1992. I have known Reverend Wright for almost 20 years. The person I saw yesterday was not the person that I met 20 years ago. His comments were not only divisive and destructive, but I believe that they end up giving comfort to those who prey on hate and I believe that they do not portray accurately the perspective of the black church.

They certainly don't portray accurately my values and beliefs. And if Reverend Wright thinks that that's political posturing, as he put it, then he doesn't know me very well. And based on his remarks yesterday, well, I may not know him as well as I thought, either.

Now, I've already denounced the comments that had appeared in these previous sermons. As I said, I had not heard them before. And I gave him the benefit of the doubt in my speech in Philadelphia, explaining that he has done enormous good in the church. He's built a wonderful congregation. The people of Trinity are wonderful people. And what attracted me has always been their ministry's reach beyond the church walls. But when he states and then amplifies such ridiculous propositions as the U.S. government somehow being involved in AIDS, when he suggests that Minister Farrakhan somehow represents one of the greatest voices of the 20th and 21st century, when he equates the United States wartime efforts with terrorism, then there are no excuses. They offend me. They rightly offend all Americans. And they should be denounced. And that's what I'm doing very clearly and unequivocally here today. . . .

But what I do want him to be very clear about, as well as all of you and the American people, is that when I say I find these comments appalling, I mean it. It contradicts everything that I'm about and who I am. . . .

And so when I start hearing comments about conspiracy theories and AIDS and suggestions that somehow Minister Farrakhan has — has been a great voice in the 20th century, then that goes directly at who I am and what I believe this country needs. . . .

But the insensitivity and the outrageousness, of his statements and his performance in the question-and-answer period yesterday, I think, shocked me. It surprised me. . . .

Obama's sense of outrage over Rev. Wright's remarks now seems genuine.

But why?

Most of what Obama points to (AIDS, Farrakhan, etc.) was said before, as Obama well knew.

What pushed Obama over the edge seems to have been the insult to him personally, not the outrageousness of Wright's views:

OBAMA: And what I think particularly angered me was his suggestion somehow that my previous denunciation of his remarks were somehow political posturing. Anybody who knows me and anybody who knows what I'm about knows that — that I am about trying to bridge gaps and that I see the — the commonality in all people. . . .

I want to use this press conference to make people absolutely clear that obviously whatever relationship I had with Reverend Wright has changed as a consequence of this. I don't think that he showed much concern for me. I don't — more importantly, I don't think he showed much concern for what we are trying to do in this campaign and what we're trying to do for the American people and with the American people.

And obviously, he's free to speak out on issues that are of concern to him and he can do it in any ways that he wants. But I feel very strongly that — well, I want to make absolutely clear that I do not subscribe to the views that he expressed. I believe they are wrong. I think they are destructive. And to the extent that he continues to speak out, I do not expect those views to be attributed to me. . . .

But at a certain point, if what somebody says contradicts what you believe so fundamentally, and then he questions whether or not you believe it in front of the National Press Club, then that's enough. That's — that's a show of disrespect to me. It's a — it is also, I think, an insult to what we've been trying to do in this campaign. . . .

One more thing: Obama appears to attribute to the press the idea that Reverend Wright was his "spiritual adviser" or "spiritual mentor" (Does anyone know whether this characterization arose in the press?):

OBAMA: I know that one thing that he said was true, was that he wasn't — you know, he was never my, quote-unquote, "spiritual adviser."

He was never my "spiritual mentor." He was — he was my pastor. And so to some extent, how, you know, the — the press characterized in the past that relationship, I think, wasn't accurate.

UPDATE: Two additional points:

1. Essentially, in the Philadelphia speech, Barack Obama used his rhetorical talents to make excuses for words and ideas with which he expressed genuine disagreement. Today Obama used his rhetorical talents to denounce those ideas. Before he was trying to justify his weak response to Wright. Today Obama seemed to be holding back from making even stronger comments than the vigorous and heartfelt denunciations he made.

2. I think that part of Obama's approach to Wright is a conscious "Christian" effort to "hate the sin, love the sinner."

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The Newest Member of the VC Community

is Eden Daisy Bernstein, born Monday at 4 am, 7 lbs, 4.5 oz, 20.5 inches long, and cute as a button. Her Hebrew name is Shulamit Fayga, after three of her great-grandmothers. I'm very proud of Mrs. Bernstein who endured--yes, that's the right word--her second natural delivery.

Apropos of recent posts by Eugene, great-grandma Salima-Shulamit got married at age 15 to her 34 year old husband, which apparently was not an unusual event in a secular Jewish family in Baghdad circa 1930.

Expressive Association, Student Groups Open Only to Members of One Religion, and Government Subsidies:

A school or university bans discrimination (based on race, religion, sex, and the like) by all student groups that want access to school property and school funds. The ban applies even when it seems contrary to the group's ideological mission — for instance, when a Christian student group is told that it can't limit membership to Christians (or a Muslim one to Muslims or an atheist one to atheists).

Do such bans violate the school or university student groups' rights of expressive association, see Boy Scouts v. Dale, or high school student groups' rights under the federal Equal Access Act? Or are they permissible school decisions about whom to give government benefits (such as access to classrooms or funds)?

Last Friday, the Ninth Circuit held, in Truth v. Kent School Dist., that such policies are indeed constitutional, and don't violate the Equal Access Act. The court remanded for findings on whether the policies were discriminatorily applied to this group because of its religiosity, given that the Men's Honor Club and the Girl's Honor Club were recognized even though their membership criteria violated the policy — but that's an implementation detail that I won't focus on further.

The court's constitutional reasoning seems oddly cursory to me: The court notes that Truth raised an expressive association claim, but it doesn't discuss that claim, or Boy Scouts v. Dale, the case on which Truth understandably relies in its briefs.

At the same time, as I've argued in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), the bottom line seems right — the government need not subsidize the student groups' right of expressive association, just as it need not subsidize abortion rights, private schooling rights, the right to lobby the government, and the like. Here's a table that illustrates this:

Right to abortionA state may not ban abortions,but it need not pay for them with state funds, or allow them to be performed at state-run hospitalseven if it chooses to pay for childbirth.
Right to free speechA state may not ban advocacy of a candidate or a legislative proposal,but it need not subsidize it through the charitable tax exemptioneven if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marryA state may not require people to marry,but it need not give unmarried couples or platonic roommates special dorm housing,even if it subsidizes married couples by offering such housing.
Right to privately educate one's childrenA state may not ban private education,but it need not pay for private education,even if it pays billions for public education.
Likewise, a state may not ban discriminatory expressive associations, but it need not give them free access to school resources, even if it gives such resources to groups that choose not to exercise their rights to discriminate in members selection.

It's true that the government may not engage in (certain kinds of) viewpoint-based subsidies, see Rosenberger v. Rector. But — as I argue in more detail in my Stanford piece — this doesn't stop the government from declining to subsidize speech in content-neutral ways, or even in content-based but viewpoint-neutral ways. And a subsidy that's open only to groups that don't discriminate based on race, religion, sex, and the like in their membership decisions is a permissible viewpoint-neutral subsidy. True, the nondiscrimination rule reflects the enactors' viewpoint, but all laws, including content-neutral ones, do that. It also has a disparate impact on groups with a certain viewpoint, but again most speech restrictions, including content-neutrals, do that, too. The constitutionally significant point is that it is not triggered by the viewpoints expressed by the groups' speech, but rather by the groups' conduct.

I should say, by the way, that I think these nondiscrimination policies are not a very good idea, and not conducive to genuine diversity of viewpoints and ideas (which is often valuable even in high schools), especially when they apply to religion. After all, most ideological groups are free to open their membership only to people who agree with their ideology (the court gives as examples EarthCorps and the Gay-Straight Alliance), and that makes perfect sense: You want student groups to be effective voices for the ideologies they were organized to espouse, and you don't want their foes to be able to take them over or dilute their voices. Religious groups are asking only for that very same ability.

It's true that religious groups' exercise of this ability constitutes discrimination based on religion (which is barred by this and many other such policies), and not discrimination based on environmentalism or attitudes towards gay rights (which is permitted). But in this context it makes sense, I think, to exempt religious student groups from the religious discrimination ban, precisely so they can be effective voices for their ideology just as the other groups are effective voices for theirs.

Nonetheless, while I think exempting groups this way is good policy, I think it's not a constitutionally mandated policy (and I'm inclined to say it's not mandated by the Equal Access Act, either, though I haven't spent as much time thinking about that). If you're interested in more detail on this, check out the article I cite above.

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Law Professor Making Trouble,

and I mean that in the best possible way:

The U.S. Patent and Trademark Office may have a major problem on its hands -- the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges.... The flaw, discovered by highly regarded intellectual property scholar John Duffy of George Washington University Law School, could also afflict the appointment of nearly half of the agency's trademark appeals judges.

A petition raising the issue has just been filed in the U.S. Supreme Court by a company whose patent was rejected by a three-judge Board of Patent Appeals and Interferences panel. That panel decision was subsequently affirmed by the U.S. Court of Appeals for the Federal Circuit, which set aside an $86.5 million infringement verdict won by the company.

The company's petition, drafted by veteran high court litigator Robert Long of Washington's Covington & Burling, contends that one of the three panel judges in its case was named to the board in violation of the Constitution's appointments clause. Translogic Technology v. Dudas, No. 07-1303.

The petition relies heavily on Duffy's analysis, which the professor published in an online IP journal....

Here's the opening paragraph of Duffy's article:

Under 35 U.S.C. § 6, administrative patent judges of the Board of Patent Appeals and Interferences (BPAI) are appointed by the Director of the Patent and Trademark Office (PTO). That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority.

Read the rest of the piece (it's only 9 pages long) for more.

Thanks to How Appealing for the pointer.

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Institute for Constitutional Studies Events: George Washington University Law School, where I teach, is home to the Institute for Constitutional Studies, a terrific center run by the constitutional scholar Maeva Marcus. The ICS puts on a series of wonderful events, some of which are open to the public and some of which are seminars for grad students and/or junior faculty from any school.

  I've found that fewer people know of the ICS than should know of it, so I wanted to flag it for grad students, junior faculty, or members of the public in the DC area who might want to come to an event. For example, I just received notice of a terrific seminar for graduate students that the ICS will be hosting in the fall taught by Mark Tushnet: The Rights Revolution in the Twentieth Century (.pdf link to flyer advertising the seminar). If you're interested, check it out.

  For the record, the Institute for Constitutional Studies has no affiliation with the Center for Constitutional Studies, the Institute for Humane Studies, the Institute for Justice, or the People's Front of Judea.
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Why I Don't Plan to Blog on the FLDS Case: In light of the blogging here on the FLDS case, and its relevance to my area, criminal procedure, I thought I would say a word on why I'm not planning on blogging about the case.

  There are two closely-related reasons. First, the facts are still unclear. In my view, the facts are everything in these cases; it's hard to judge what happened when you don't really know what happened. Second, cases such as this often trigger tremendous emotion among libertarians who identify to varying degrees with the targets. As a result of these two reasons, coverage of such cases usually emits more heat than light; folks often have extremely strong views even if no one really knows what is going on.

  Some bloggers enjoy blogging in those situations, but I generally don't — or at least I don't unless I have a lot of time to delve into the details. With peak grading season upon us, I don't have that time, so I don't expect to blog on the topic beyond this meta-post.
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[Robert Brauneis, guest-blogging, April 29, 2008 at 3:38pm] Trackbacks
Happy Birthday II: 115 Years of Copyright, and 22 More to Come?

Yesterday, my post to this fine forum argued that there were good policy reasons for granting Patty and Mildred Hill copyright protection for the melody of "Happy Birthday to You." Don't worry, they got it. Their book "Song Stories for the Kindergarten," which contained the "Happy Birthday" melody with different words under the name "Good Morning to All," was duly registered with the Copyright Office before publication in 1893. At that time, the Hill sisters would have been looking forward to a total of 42 years of copyright protection. The Copyright Act of 1909, however, gave them (and every other copyright holder) an additional 14 years of copyright -- by modern standards, a modest windfall. That brings us to 1949, when "Song Stories for the Kindergarten" took in its last royalty payment and expired, that is, entered the public domain.

Fast forward to 2008. Warner Music Group is pulling in about $2 million a year from "Happy Birthday to You." It's counting on that stream of income to keep flowing until 2030. What happened?!?

The very short answer is that WMG is not claiming copyright in the melody, but only in the combination of the melody and the words, which it claims was first copyrighted in 1935. These days, a properly renewed 1935 copyright is good for 95 years; 1935 plus 95 equals 2030.

Granting a new copyright for combining an old melody with new words, or even an old melody with old words, is not necessarily a bad thing. For example, a hymn called "Materna" and a poem called "America" both remained relatively obscure until the day that someone thought to combine them, and then voila!, "America the Beautiful" appeared. The right combinations can be of enormous cultural value, and to my mind there's nothing wrong with offering the incentive of copyright protection to experiment with new combinations.

In this case, however, the story's not that simple. There is very good evidence that the "Happy Birthday to You" words were already being sung to the Hill sisters' melody back in the 1890s. Moreover, those words and melody appeared together in many published songbooks in the 1910s and 1920s. Thus, WMG's claim that the song is still under copyright has to be much more complicated. We don't know exactly what WMG's litigation position would be, because there hasn't been any litigation about the combination of words and melody. (There was some litigation in the 1930s and 1940s, but that was about the melody alone, which was still under copyright at the time.) Here's my best guess about what WMG would have to assert:

(1) Patty and Mildred Hill actually wrote the "Happy Birthday to You" words back in the 1890s, but they did not authorize anyone to publish them until 1935. All of the songbooks in which the song appeared in the 1910s and 1920s were infringing.

(2) In 1935, the combination of "Happy Birthday" words and music were published in an authorized version with proper copyright notice (which was the necessary formality for gaining federal copyright protection at the time).

(3) In 1962, copyright in the "Happy Birthday" words and music was properly renewed.

I've spent a lot of time investigating whether these assertions are true. (I also take a lot of pages in my article draft to evaluate the assertions, which may be one reason why I haven't yet placed the article -- law review editors take note, I'll accept an offer conditioned on cuts!) It turns out that all three assertions have serious problems.

I'll discuss those problems in a post tomorrow. For now, let me just say that it seems quite clear that, back in 1935, no one associated with "Good Morning to All" was thinking that publishing it with the "Happy Birthday" words would extend copyright past 1949. For example, the registrations for the versions of the song published in 1935 claimed copyright only in the arrangements made by the publisher's employees-- piano accompaniments and the like -- not in the song itself. And those 1935 versions credit only Mildred Hill, the musician sister who wrote music for dozens of published songs but never once wrote lyrics; they fail to credit lyricist Patty Hill.

Yet, as Dr. Johnson would have said, when a music publisher knows that his successful song will soon slip into the public domain, it concentrates his mind wonderfully. As 1949 approached, someone came up with a colorable theory under which royalties for the use of "Happy Birthday to You" could be demanded until the distant year of 1991 -- which, thanks to repeated Congressional largesse, has now receded to the still-distant year of 2030.

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Dartmouth Trustee's "Gang of 12" Defend Board-Packing Plan:

Voting began yesterday in the Dartmouth election for the Executive Committee of the Association of Alumni. As I noted last week the issue in the election is straightforward--it is a referendum on the Board-packing plan adopted last fall by the trustees. If you oppose the board-packing plan and want to preserve the traditional parity between elected and appointed trustees then you should vote for the Dartmouth Parity slate and if you support the board-packing plan then you should vote for the Dartmouth Undying slate.

Into the fray yesterday came the "Gang of 12" non-petition Dartmouth Trustees. The letter is published on Board of Trustees letterhead and is posted on the College's website--even though it purports to be from only 12 trustees and is not an official board action. It is not clear whether the letter is being printed, mailed, and emailed using Dartmouth resources or whether any College employees assisted in its production, but this appears to be the case.

Reaction to the letter has been swift and skeptical. Doug Anderson's short critique is simply devastating. Doug (Class of '89) writes, for example, "Fourth, the letter is breathtaking in its Orwellian constructions, like 'Four of our trustee colleagues filed an amicus brief against the College to try to achieve through the courts what they could not achieve in the boardroom through normal Board processes.' I guess no one could possibly think that these board members were trying to achieve through dilution of alumni elected trustees a result that they could achieve through alumni elections." Read the whole thing.

Paul Mirengoff, who is a candidate for the Second Vice-President position, comments here.

As Paul and Doug note, very little in the Gang of 12's letter actually defends the merits of the board-packing plan itself. So it seems to be largely an effort to distract alumni from the central issue of the election--which is the board-packing plan. If the disruption and cost of the lawsuit is a concern, then this problem is easily solved by the majority of the Board simply settling the suit and rescinding the board-packing plan in light of the court's rejection of the motion to dismiss.

Procedure:

My tentative sense based on media accounts, as I've mentioned before, is that there have been crimes -- likely very serious crimes -- committed at the FLDS compound. There are reports of outright forcible rapes, and it seems likely there was a good deal of statutory rape under Texas law. So it's very likely that there are lots of criminals living there; maybe most of the adults there are criminals; the police should be ferreting out evidence of this, and prosecutors should prosecute those who appear guilty. Nor do I have any sympathy for the FLDS people's lifestyle, which even if legal strikes me as pretty bad for the children.

But procedure matters, and it should matter when it comes to removing children from their parents and not just when it comes to criminal prosecution. There are good reasons why we don't just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don't do that. Imagine what the nation would be like if we did.

Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. It takes proof beyond a reasonable doubt to justify criminal punishment. It takes proof by a preponderance of the evidence (though sometimes perhaps just probable cause) to justify some civil remedies, such as asset forfeiture (and when those standards are relaxed enough, and stop being individualized enough, people complain about them, too). The police can generally question people without any individualized suspicion -- the point of the questioning is often precisely to see whether such suspicion is warranted -- but for more coercive steps, something more is needed.

Now naturally when there is evidence of likely imminent danger -- whether to children or to others -- the procedures understandably become somewhat relaxed. The police, for instance, can search a home just with probable cause if there are exigent circumstances, with no need for a warrant. In certain situations, the police can even enter a home without probable cause, under the rubric of community caretaking (though the boundaries of that are complex and in some measure rightly controversial). Child protective services can temporarily isolate a child from parents who seem to be abusing the child, or likely to abuse the child shortly. But all that is where there is indeed evidence of likely imminent danger to particular people.

So if Texas had gone in and arrested those people as to whom there was probable cause to believe that they had committed crimes, I wouldn't object. If Texas had gone in and seized those children as to whom there was evidence of imminent danger, I wouldn't object. If Texas had seized some children for a few hours to conduct a physical exam, that would be closer to the border (in the absence of individualized evidence of likely harm), but I probably wouldn't object much there, either. And certainly the evidence required wouldn't t itself have to rise to proof beyond a reasonable doubt; that's a standard for a criminal trial, not for a preliminary seizure because of a material risk of imminent danger.

But from all I've seen in press accounts, there is no serious evidence of imminent danger to children and to infants. There is some suspicion that some, many, or maybe even all their parents have committed crimes against some teenage children (including aiding other adults' crimes, which is itself a crime). There is some evidence of imminent danger to teenagers. But that other children who live in the same community are harmed by some adults in the community isn't by itself adequate reason, I think, to take a small child away from his or her parents, before any evidence of actual crime by the particular parents or actual danger to the particular child is provided.

Again, imagine that the police had the power to seize all the infants and toddlers in a cohesive, culturally homogeneous neighborhood because there was evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like). That would surely be a powerful tool for law enforcement, and a powerful means to get evidence. It might even help some of the infants and toddlers, if you assume a good foster care system (not because the small children are in immediate danger from the crime, which may mostly affect teenagers, but because many of their parents might indeed be bad parents).

But it would put far too much power, I think, in the government's hands. And the traditional procedure -- arrest those as to whom you have probable cause, and take away children when you have concrete evidence that there is a threat to them in particular -- would have much (though not all) of the benefit without this dramatic increase in government power.

By the way, the careful reader may well have noted that there is an area in which we have had much broader government seizure authority -- war, and the handling of enemy combatants. The government has vast powers over people seized in foreign theaters of combat, especially when they aren't citizens. The government has also of course famously and controversially asserted similar powers over alleged enemy combatants who are citizens, and who are seized in the U.S. I think the power over foreign citizens, especially those seized in foreign country, is justified by tradition and necessity; I think some such power over U.S. citizens may also be proper, and historically recognized, but it too requires substantial procedural constraints.

Yet in any event surely everyone would agree that any such power over U.S. citizens in the U.S. is extraordinarily perilous. Even those who would leave the procedural rules chiefly in the federal government's hands would, I think, agree, though they conclude that the exigencies of war and the dangers of terrorist attacks that would kill anywhere from hundreds to millions justify this risk. Protection of children from abuse is important, but I certainly hope that we won't adapt the warfare model to it.

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Voter ID and Campaign Finance: Reading over Crawford v. Marion County Election Board, the Voter ID case, it occurs to me that the case shares a lot of structural similarities with McConnell v. FEC, 540 U.S. 93 (2003), the McCain-Feingold/BCRA campaign finance case. In both cases, there were two basic issues: (1) What's the degree of scrutiny for a facial challenge to a statute that is claimed to infringe on constitutional rights central to the voting process, and (2) How much evidence is there of a problem in need of correction, and how hard should the courts look for it?

  Of course, the two cases raise different issues, and as with any two cases, different Justices can vote differently for lots of perfectly legitimate reasons. Still, it's interesting to note that the statutes in the two cases have generally opposite political polarities — while Voter ID laws tend to be supported by Republicans and opposed by Democrats, the 41 "no" votes against BCRA in the Senate were 38 Republicans and 3 Democrats — and there was only one Justice of the seven on the Court for both cases who voted either to uphold both laws or strike both down. And the vote of that one Justice, Justice Stevens, has of course been the subject of considerable speculation to answer the puzzle of why he voted as he did.

Related Posts (on one page):

  1. Similarities Between Crawford and McConnell:
  2. Voter ID and Campaign Finance:
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Josh Wright on the Future of Law and Economics:

An important and interesting post by Josh Wright on the Future of Law and Economics (the first of a planned series). Josh is a rising star in law and economics. I especially recommend his superb critique of some areas of behavioral law and economics which you can get here.

Here's an excerpt:

Assuming that the modern economics literature is indeed trending towards mathematical sophistication, the most obvious and likely consequence is that L&E will become less relevant to legal and policy audiences. There are at least three possible avenues through which the increase in formalization could be costly for L&E:

(1) Economists will do work that is detached from legal institutions and law and therefore less relevant (the “detachment” problem);

(2) L&E scholars will do work that is very relevant, and maybe even very good, but legal scholars wont know about it or care about it because of the “translation” issues associated with the formal mathematics will prevent it from being retailed to broader audiences, (the “retail” problem);

(3) Informal L&E will be “crowded out” of the law school landscape as it declines in value, (the “crowding out” problem) and as formal scholarship moves away from law schools toward economics departments, traditional subjects of L&E scholarship will be left to less qualified scholars (the “I know STATA and can get any regression through law review editors with a catchy enough title” problem).

My own sense is that right now, #1-3 are all important potential issues for L&E. And I’m certainly not forgetting that increased formalization and specialization might bring some important benefits to economics and to L&E specifically. I’ll address the benefit side of the equation in a later post. For now, I want to focus on some of the potential costs. (For interested readers, Larry Ribstein also highlights these problems in his posts.)

From my perspective, the most pressing of these problems is #2, what I’ve described here as the “the retail problem.” The problem of economists ignoring the law and legal institutions is no doubt real and significant, as is the problem of legal scholars without sufficient training publishing empirical work (there is more “bad” empirical scholarship than modeling as statistical software packages lower the cost of entry for empirics but less so for modeling). Bad work will always be a problem and I suspect always has been and always will be. Perhaps the increase in formalization has made bad work of both types more or less likely. I suspect it has allowed room for more bad empirical work than would exist otherwise, but I’m not sure how large this effect is.

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Col. Davis for the Defense:

The Washington Post reports on Col. Morris Davis' testimony at Salim Ahmed Hamdan's military commission trial yesterday.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.

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Time for T.O. to Pay Up:

The Philadelphia Eagles are suing wide receiver Terrell Owens for bonus money he owes the team due to his 2005 suspension from the team. Dave Hoffman has some thoughts (and a copy of the complaint) here. I wonder if T.O. will do sit-ups in the courtroom?

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Justice Stevens and the Ghost of Mayor Daley:

John Fund speculates that Justice Stevens' experience with the rough-and-tumble world of Daley-era Chicago politics may have influenced his decision in Crawford v. Marion County Election Board.

Justice John Paul Stevens, who wrote the decision, grew up in Hyde Park. . . . [He saw] how the Daley machine has governed the city for so many years, with a mix of patronage, contract favoritism and, where necessary, voter fraud.

That fraud became nationally famous in 1960, when the late Mayor Richard J. Daley's extraordinary efforts swung Illinois into John F. Kennedy's column. In 1982, inspectors estimated as many as one in 10 ballots cast in Chicago during that year's race for governor to be fraudulent for various reasons, including votes by the dead.

Mr. Stevens witnessed all of this as a lawyer, special counsel to a commission rooting out corruption in state government, and as a judge. On the Supreme Court, this experience has made him very mindful of these abuses. In 1987, the high court vacated the conviction of a Chicago judge who'd used the mails to extort money. He wrote a stinging dissent, taking the rare step of reading it from the bench. The majority opinion, he noted, could rule out prosecutions of elected officials and their workers for using the mails to commit voter fraud.

Three years later, Justice Stevens ordered Cook County officials to stop printing ballots that excluded a slate of black candidates who were challenging the Daley machine. The full court later ordered the black candidates back on the ballot.

With this experience Justice Stevens was quite ready to accept that the state had sufficient interests in election integrity and voter confidence to justify the Voter ID rule. Thus, Stevens was unwilling to void the Indiana law on the basis of speculative claims about the law's potential impact. As Stevens' opinion stressed, "on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters." (Slip. Op. at 18, emphasis added). Further, Stevens had little patience for his colleagues who were more willing to rely upon speculative claims or evidence that was not before the Court, writing in a Footnote (that responded to Justice Souter's dissent): "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication." (Slip Op. at 19, FN 20). To some it may be obvious that requiring photo identification to vote is an undue burden on the right to vote. To Justice Stevens, that is a claim that has to supported with record evidence, and such burdens need to be weighed against the state's interests.

I'm still working my way through the opinions. For more on the case, see this round-up of reportage and commentary from Rick Hasen.

Related Posts (on one page):

  1. Justice Stevens and the Ghost of Mayor Daley:
  2. Supremes Reject Challenge to Voter ID Law:
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Monday, April 28, 2008

FLDS Pregnancy Statistics:

[See CORRECTION below.] I don't have a lot to say about the FLDS raid. It sounds to me like there might well be some criminal behavior by FLDS members, but at the same time I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such summary removal of small children, with no reason to fear imminent danger to them, is itself child abuse. As to the other details, I don't know enough to have a bottom-line opinion.

Here, though, is a non-bottom-line opinion on which I do have some confidence: This AP story (via Talking Points Memo and Victor Steinbok) is missing some very important data:

Child Protective Services spokesman Darrell Azar says 53 girls between the ages of 14 and 17 were living on the ranch in Eldorado. Of that group, 31 already have children or are pregnant....

Whatever we might think of marriages by 16- and 17-year-olds, Texas allows marriages at age 16 with parental consent. (It also seems to allow marriages of younger teenagers with a court order, but I set that aside for now.) Now of course this wouldn't count if the girl is a second or later wife in a plural marriage, since that doesn't count as marriage under Texas law. In such situations, the sex would be considered extramarital, and the age of consent would be 17 (unless the partner is less than 3 years older).

CORRECTION: The AP article that I cited was apparently a very much abbreviated version; the fuller version adds "Under Texas law, children under the age of 17 generally cannot consent to sex with an adult. A girl can get married with parental permission at 16, but none of these girls is believed to have a legal marriage under state law." So the AP at least noted the age of consent, and added a fact which suggests the 16-year-olds might not have been legally married (though I'd like to know more details about why this is so). Thanks to commenter jccamp for alerting me to this; I've corrected the post below accordingly.

So many of the 16- and 17-year-olds may have gotten pregnant with no law being broken, and in fact within a legally recognized marriage. Of course, many might have gotten pregnant at 14 or 15, or at 16 outside marriage and with an adult. And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime. People who were complicit in this crime, or lesser crimes, should be held accountable. But the 31-out-of-53 number given by a Texas state spoken completely ignores the distinction that Texas law itself draws, and I suspect in a way that many readers won't immediately recognize on their own.

Some people might of course fault FLDS for encouraging the marriage of 16- and 17-year-olds [CORRECTION: or sex by 17-year-olds in a relationship they view as marriage but that is not a legal marriage], even if the girls are consenting and the marriages are permitted under the law. I wouldn't wish such a marriage on a 16- or 17-year-old daughter of mine. But I don't see such marriages as a justification for Child Protective Services action, unless there's some evidence of force or serious coercion (and evidence of force should of course be relevant even for marriages of adults).

It therefore seems to me CPS's statements in this case (or, if this is the AP's fault, the AP's report of CPS's statements in this case) should have focused on data that reflects illegal conduct and not on data that may reflect perfectly legal behavior. And if CPS doesn't know exactly which category any particular teenager falls in, the statements should have at least made that uncertainty clear.

UPDATE: The original version of my opening paragraph was apparently a bit confusing to some commenters -- I wrote, "... I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such a raid is itself child abuse." The "such a raid" referred to the aspect of the raid mentioned in the previous sentence -- the removal of small children, with no reason to think that they were facing imminent danger; I've revised that sentence to make that extra clear.

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Candidates favor reducing carbon emissions to levels not seen since the American Revolution.--

Last week some commenters wondered why I hinted that radically reducing greenhouse gasses in the present environment ran the risk of impoverishing people. I had in mind two things: (1) our nonsensensical government policy promoting ethanol, which appears to have contributed to a worldwide run-up in food prices, leading to disasters for many poor people around the world, and (2) the stated goals of all three major candidates to reduce US emissions to per capita levels not known here since before the Industrial Revolution.

In the Wall Street Journal, Steven Hayward, who knows a lot more about such things than I do, expresses my inchoate second thought in detail:

The usual chorus of environmentalists and editorial writers has chimed in to attack President Bush's recent speech on climate change. In his address of April 23, he put forth a goal of stopping the growth of U.S. greenhouse gas emissions by the year 2025. "Way too little and way too late," runs the refrain, followed by the claim that nothing less than an 80% reduction in emissions by the year 2050 will suffice – what I call the "80 by 50" target. Both Hillary Clinton and Barack Obama have endorsed it. John McCain is not far behind, calling for a 65% reduction.

We all ought to reflect on what an 80% reduction of greenhouse gas emissions by the year 2050 really means. When we do, it becomes clear that the president's target has one overwhelming virtue: Assuming emissions curbs are even necessary, his goal is at least realistic.

The same cannot be said for the carbon emissions targets espoused by the three presidential candidates and environmentalists. Indeed, these targets would send us back to emissions levels last witnessed when the cotton gin was in daily use. Begin with the current inventory of carbon dioxide emissions – CO2 being the principal greenhouse gas generated almost entirely by energy use. According to the Department of Energy's most recent data on greenhouse gas emissions, in 2006 the U.S. emitted 5.8 billion metric tons of carbon dioxide, or just under 20 tons per capita. An 80% reduction in these emissions from 1990 levels means that the U.S. cannot emit more than about one billion metric tons of CO2 in 2050.

Were man-made carbon dioxide emissions in this country ever that low? The answer is probably yes – from historical energy data it is possible to estimate that the U.S. last emitted one billion metric tons around 1910. But in 1910, the U.S. had 92 million people, and per capita income, in current dollars, was about $6,000. By the year 2050, the Census Bureau projects that our population will be around 420 million. This means per capita emissions will have to fall to about 2.5 tons in order to meet the goal of 80% reduction.

It is likely that U.S. per capita emissions were never that low – even back in colonial days when the only fuel we burned was wood. The only nations in the world today that emit at this low level are all poor developing nations, such as Belize, Mauritius, Jordan, Haiti and Somalia.

Excessive environmentalism, if actually implemented, would lead to poverty, and poverty leads to death. If a solution is to be found, wealth — and the technology that wealth buys — will play a big part.

Related Posts (on one page):

  1. Candidates favor reducing carbon emissions to levels not seen since the American Revolution.--
  2. Reynolds on Geoengineering.--
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Could Federal Prosecutorial Misconduct Free Edwin Edwards?

Patterico has some questions:

Did a prosecutor in the New Orleans U.S. Attorney’s Office commit misconduct which could jeopardize the conviction of former Louisiana governor Edwin Edwards? Did a defendant who turned state’s evidence against Edwards bribe Congressman William Jefferson to influence the former U.S. Attorney to get a better deal for himself? Did the Department of Justice ignore evidence of these claims?

These are the allegations made by an indicted attorney. In a lengthy post, Patterico finds the allegations plausible and worth further investigation.

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Link to Rev. Wright's Speech: If you're interested in watching the entirety of Rev. Jeremiah Wright's speech at the National Press Club, C-Span has it here.

  The speech begins at about the 5:30 mark, and then the Q&A starts at the 31:30 mark. The question about Farrakhan occurs at the 35:30 mark; the question about America being damned — and the response about Wright "coming after" Obama if he is elected — occurs at the 39 minute mark; and the question about the U.S. inventing the AIDS virus comes at the 43 minute mark.

  UPDATE: Senator Obama has responded to Rev. Wright's comments at a press conference; initial coverage is here.
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Rev. Wright on Louis Farrakhan:

Today, at the National Press Club:

MODERATOR: What is your relationship with Louis Farrakhan? Do you agree with and respect his views, including his most racially divisive views?

WRIGHT: As I said on the Bill Moyers' show, one of our news channels keeps playing a news clip from 20 years ago when Louis said 20 years ago that Zionism, not Judaism, was a gutter religion.

And he was talking about the same thing United Nations resolutions say, the same thing now that President Carter is being vilified for, and Bishop Tutu is being vilified for. And everybody wants to paint me as if I'm anti-Semitic because of what Louis Farrakhan said 20 years ago.

I believe that people of all faiths have to work together in this country if we're going to build a future for our children, whether those people are — just as Michelle and Barack don't agree on everything, Raymond (ph) and I don't agree on everything, Louis and I don't agree on everything, most of you all don't agree — you get two people in the same room, you've got three opinions.

So what I think about him, as I've said on Bill Moyers and it got edited out, how many other African-Americans or European-Americans do you know that can get one million people together on the mall? He is one of the most important voices in the 20th and 21st century. That's what I think about him.

I've said, as I said on Bill Moyers, when Louis Farrakhan speaks, it's like E.F. Hutton speaks, all black America listens. Whether they agree with him or not, they listen.

Now, I am not going to put down Louis Farrakhan anymore than Mandela would put down Fidel Castro. Do you remember that Ted Koppel show, where Ted wanted Mandela to put down Castro because Castro was our enemy? And he said, "You don't tell me who my enemies are. You don't tell me who my friends are."

Louis Farrakhan is not my enemy. He did not put me in chains. He did not put me in slavery. And he didn't make me this color.

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[Robert Brauneis, guest-blogging, April 28, 2008 at 4:16pm] Trackbacks
"Happy Birthday" I: The Half-Full Cup of Copyright.

My thanks to Eugene for the opportunity to address the Volokh Conspiracy audience and get some feedback on my article "Copyright and the World's Most Popular Song."

Supporters of copyright will no doubt like some of the things I have to say in the piece; questioners will like others. I'm going to start off with an aspect of the piece that's relatively pro-copyright.

The melody of "Happy Birthday to You" is quite simple and folksy. No one would confuse it with a song by Schubert or Cole Porter. Thus, one might think that it was probably created by the accretion of incremental contributions so small that none of them would qualify for copyright protection. One might also think that copyright protection wasn't needed to motivate its composition or dissemination, and that, in any event, it is not the kind of sophisticated music that copyright is really meant to promote.

What I have learned about the history of "Happy Birthday to You" has led me to question all of those thoughts. The melody of that song -- originally published with different words as "Good Morning to All" -- was the product of an intensely focused and extended creative process. Patty Smith Hill and Mildred Jane Hill, the two sisters who composed it, started with a specific goal in mind. They wanted a melody that could be easily sung and remembered by kindergarten students, yet would also have an emotional punch.

Because Patty was the principal of a kindergarten, the Hill sisters had a laboratory in which they could test melodies. And that's what they did. They would compose a song; bring it into the kindergarten; see how easily and enthusiastically the children would learn and sing it; and then go home in the evening, make changes, and bring the next draft into the kindergarten the following morning.

Out of many such rounds of testing came the "Happy Birthday to You" melody. It turns out that it's a melody that not only children but also adults with little musical talent can remember and sing a few times a year, building to that satisfying catharsis of the high note in the song's third line, celebrating a milestone of life.

The Hill sisters did not invent the melodic, harmonic, or rhythmic vocabulary they were using. But as far as I can tell, they were not just tweaking an existing melody either. Moreover, though they were not professional composers, they were quite aware of copyright. Patty told the kindergarten teachers that they could sing the song all they wanted, but that they should not write it down, because that would endanger copyright protection. (At the time, publishing a work before registering it with the Copyright Office would forfeit copyright.)

Where does this all lead? First, even simple melodies don't necessarily spring up without people devoting time and care to them. Many "folk songs" likely have authors whose identity has just been lost to our collective memory. Second, even nonprofessional composers who aren't seeking to get rich from a song may desire copyright protection, because they understand that it is important to publishers who invest in disseminating that song.

Finally, lowbrow domestic music may be worth promoting with copyright protection just as much as highbrow concert hall music. As much as I love Schubert and Cole Porter, I'm willing to concede that their entire output has probably not contributed as much to the happiness of humanity as a simple song by two unknowns, as sung in groups large and small by millions of people around the world every day.

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Racial/Ethnic Disparities in Representation in Education and Employment:

From Rev. Jeremiah Wright's Speech to the NAACP:

Different does not mean deficient.... Dr. [Janice] Hale showed us, that in comparing African-American children and European-American children in the field of education, we were comparing apples and rocks. And in so doing, we kept coming up with meaningless labels like EMH, educable mentally handicapped, TMH, trainable mentally handicapped, ADD, attention deficit disorder.

And we were coming up with more meaningless solutions like reading, writing and Ritalin. Dr. Hale's research led her to stop comparing African-American children with European-American children and she started comparing the pedagogical methodologies of African-American children to African children and European-American children to European children. And bingo, she discovered that the two different worlds have two different ways of learning. European and European-American children have a left brained cognitive object oriented learning style and the entire educational learning system in the United States of America. Back in the early '70s, when Dr. Hale did her research was based on left brained cognitive object oriented learning style. Let me help you with fifty cent words.

Left brain is logical and analytical. Object oriented means the student learns from an object. From the solitude of the cradle with objects being hung over his or her head to help them determine colors and shape to the solitude in a [carrel] in a PhD program stuffed off somewhere in a corner in absolute quietness to absorb from the object. From a block to a book, an object. That is one way of learning, but it is only one way of learning.

African and African-American children have a different way of learning. They are right brained, subject oriented in their learning style. Right brain that means creative and intuitive. Subject oriented means they learn from a subject, not an object. They learn from a person. Some of you are old enough, I see your hair color, to remember when the NACP won that tremendous desegregation case back in 1954 and when the schools were desegregated. They were never integrated. When they were desegregated in Philadelphia, several of the white teachers in my school freaked out. Why? Because black kids wouldn't stay in their place. Over there behind the desk, black kids climbed up all on them.

Because they learn from a subject, not from an object. Tell me a story. They have a different way of learning. Those same children who have difficulty reading from an object and who are labeled EMH, DMH and ADD. Those children can say every word from every song on every hip hop radio station half of who's words the average adult here tonight cannot understand. Why? Because they come from a right-brained creative oral culture like the [griots] in Africa who can go for two or three days as oral repositories of a people's history and like the oral tradition which passed down the first five book in our Jewish bible, our Christian Bible, our Hebrew bible long before there was a written Hebrew script or alphabet. And repeat incredulously long passages like Psalm 119 using mnemonic devices using eight line stanzas. Each stanza starting with a different letter of the alphabet. That is a different way of learning. It's not deficient, it is just different. Somebody say different. I believe that a change is going to come because many of us are committed to changing how we see other people who are different.

Now perhaps Rev. Wright is right that black children have different cultural upbringings, that yield different learning styles. I'm skeptical about many of his particular theories, but the notion that differences in pupils' culture affect education surely makes sense. And I also agree, of course, that "different" does not inherently mean "deficient."

But "different" — especially substantially different — may well mean less successful at some things, and more successful at others. "[L]ogical and analytical" is pretty important in lots of fields, and not just because the European-American-founded "educational learning system in the United States of America" says so. So if Rev. Wright is correct, that this strongly undermines the oft-heard claim that disproportions (even including substantial disproportions) in the representation of various ethnic and racial groups in education or employment is strong evidence of discrimination. Perhaps it's just that some "ways of learning" (especially associated, for instance, with the culture of Asians, Jews, or whites generally) are conducive to success in one field and other "ways of learning" are not.

Now of course it's also possible that different cultural "ways of learning" yield equally effective results, and that the disproportions in representation are caused solely by racial or ethnic discrimination, or by the system's relying on irrelevant differences in "ways of learning" rather than on actual success or knowledge. But why should we think this is so? Why should we assume that "logical and analytical" approaches will inherently yield no better and no worse results as their "[r]ight[-]brain[ed]" "creative and intuitive" "[s]ubject[-]oriented" alternatives?

UPDATE: I've corrected a couple of what seem to be transcriber errors in the block quote.

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The Vogue Cover Controversy:

This cover:

is causing controversy (see here and here), apparently because of the supposed similarity to King Kong posters. A sample objection: "[T]here is a long history in the United States of imaging black men as brutish, and comparing black people to monkeys and apes. A good deal of racist propaganda has rested on those images, and they’re a deeply ingrained part of our cultural history. That’s why this Vogue cover, which plays on racist imagery, is troubling."

Here's my thinking on the matter: The first thing I look to in this sort of picture, and I think the first thing most viewers look to, is what the characters are doing, and what aspects of the characters' personality this highlights. The woman here is smiling; Jezebel suggests the "photo ... casts the black man as 'big and scary,'" but that's hard to reconcile with the woman's obviously not being scared.

The man is shown with a basketball, a clear reference to his being celebrated as being a master at his game; in the context of his being a sports player, and in the context of the headlines, his fitness is also being celebrated. While size and fitness in men may be seen as threatening in some contexts, they are an obvious asset in a basketball player. So far, the cover seems like a positive portrayal of both characters, but especially of the man — he's being featured as competent, as having a figure that most men would aspire to, and as being embraced by a beautiful woman who obviously seems to be enjoying his company.

Now what about the scream, which Jezebel contrasts with a much more "civilized" (in quotes) alternative picture Jezebel points to? My guess is that the answer to her own questions, "Were they looking for something more dynamic and animated? Did they want something with action, with impact?" is "yes" and "yes." The scream is more eye-catching; and beyond that, a sportsman screaming with a basketball immediately off his hand conveys the message of athletic enthusiasm, not of threat. A large, fit man dressed in gangbanger-style clothes screaming might be "scary"; gangbangers are scary, as are many kinds of screams. A black man dressed in basketball clothes dribbling a basketball and screaming, while being embraced by a beautiful smiling woman, is not.

So that's what I got from the image on its own. But is it supposed to remind viewers of the other image contained in various King Kong posters, as Jezebel suggests in showing the two side by side, or otherwise "play[] on racist imagery"?

If it was, then it didn't work with me. Maybe that's because King Kong (and visual iconography more generally) occupies a small corner of my brain — but even if there is such a reminder for some viewers, the image remains obviously a celebratory picture of LeBron James, with a message that is obviously very different from that conveyed by King Kong and Fay Wray. It's praise, not a pejorative; it portrays James as successful and admirable, not "brutish."

Artistic visual images are notoriously difficult to pin down into a single unambiguous statement, especially when one adds to them all the possible allusions that the images can contain, so I'm not surprised that others may get a different view. But my sense is that the thematic differences here overwhelm any possible visual similarities (or even deliberate visual references, if there are any).

Thanks to InstaPundit for the pointer.

UPDATE: Commenters pointed me to a datum I missed -- one of James' nicknames is "King James," which increases the likelihood that there is a deliberate allusion to "King Kong" here (and I suppose somewhat increases the likelihood that Vogue readers would be reminded of the King Kong posters, though my guess is that most Vogue readers are not basketball experts). On the other hand, it further suggests that the allusion, if allusion it is, is a positive one: What would link the two is that they are Kings (not the Sacramento kind).

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Steven Teles, The Rise of the Conservative Legal Movement:

I just finished reading Steven Teles's book The Rise of the Conservative Legal Movement and wanted to add my praise to that of others (here's a collection of our posts on the book). It is a significant and interesting book.

Moreover, it is eminently fair and well-researched. Teles writes with insight and obvious admiration for the success of the conservative legal movement (leaving aside whether he agrees with its ends) and in particular for its resiliency in learning from its early mistakes. He also has developed an understanding of the way the conservative legal world works in terms of the centrality of intellectual and jurisprudential ideas and the way they cut across some traditional ideological issues. I find this interesting, in that like Jan Crawford Greenburg, I think Teles has made a genuine effort to understand what makes conservative legal thinkers "tick" and thus gets to some valuable insights. I also didn't know the early history of the conservative public interest law movement.

I should also note that I found the book to be quite well-written. For those who are not inclined to the political science part of the story (as opposed to the more historical part of the analysis) you may feel a bit bogged down in Chapter 1. It is an important scholarly chapter, but one that I think may be less interesting to the general reader. For the general reader, you can understand the rest of the book even if you don't read that chapter carefully. The rest of the book is quite engaging.

One interesting point raised by Teles from a political science perspective is his observation that there is something redundant about the efforts of groups like the American Constitution Society to try to replicate the Federalist Society. Teles argues that in the middle of the twentieth century conservatives were more successful in building a popular and electoral movement than an elite academic and legal movement. Thus, groups like the Federalist Society were necessary to address this deficiency in the conservative movement.

By contrast, during this period liberals were extremely successful in building an elite infrastructure in the academy, courts, and public interest law movement, but less successful in building popular electoral support (this is an empirical claim with which some might disagree but which seems to me to be a reasonable assertion for the argument that follows). Thus, he suggests, there is little need for more liberal elite activity.

This leaves aside the question of whether liberals have actually digested the key to the success of the Federalist Society. Teles, I think, does get it. As Teles notes--accurately I think--the key to the Federalist Society's success has been two-fold. First, it has adopted a "big tent" approach toward its intramural debates that sweeps in everyone from Robert Bork and Lino Graglia on one hand to Randy Barnett and Richard Epstein on the other. In short, the Federalist Society has embraced its own internal debates and intellectual squabbles as well as engagements across ideological lines, which I think contributes to the robustness of its intellectual mission. Second, Teles stresses that the policy cash-out from the the Federalist Society is a by-product of its primary focus, not the central focus of the group. Thus, the Federalist Society can provide a basis for networking for government jobs or to find pro bono lawyers, but it does not take positions on public issues, bring cases, or file briefs. I think that Teles is right that this ability to avoid "mission creep" has been a great part of the group's success.

Steve also notes the influence of the Olin Programs in Law and Economics at law schools in shaping the legal culture. I note that when I was a student at UVA, and a primary reason why I chose to go to law school there rather than other places where I was admitted, was because I was awarded a scholarship as an Olin Scholar in Law & Economics (I think that's what it was called). Although the program was only modestly organized when I was there, it did give me the opportunity to attend some workshops and conferences during my time there. When I was in law school the Olin Fellows in the class ahead of me were Adam Pritchard (now of Michigan Law School) and Don Boudreaux (now the Chair of the GMU Economics Department). There was one other Olin Scholar when I was there who went into academia for a year before settling in private practice.

One other notable point by Teles is his conclusion that libertarianism has proven more susceptible to advancement through public interest litigation than traditional conservatism. Oversimplified, his argument is that traditional conservatism is designed to uphold government power (think the law and order movement of the 1970s) whereas libertarian goals are more easily vindicated through the courts and the Constitution. Interesting hypothesis.

It also reminds me of a question I was also asked by a friend at another law school, which is why among the small group of "right-leaning" legal academics, libertarians seem disproportionately represented when compared to the ratio of libertarians and conservatives within the "conservative movement" as a whole. If that is an empirically-valid observation (and it does seem plausible) I wonder if Teles's analysis is translatable to the academy as well? I don't know the answer, but it is a neat observation.

It is also worth noting that I've talked about the book with many of those discussed in it and they are uniform in their praise of its accuracy, fairness, thoroughness, and insight. On the other hand, I would echo the caveat that I think either David or Ilya initially expressed, which is that I think the idea of George Mason as a consciously "libertarian" law school is a misnomer.

Overall the book is highly recommended and I encourage you to add it to your summer reading list.

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Supremes Reject Challenge to Voter ID Law:

This morning, the U.S. Supreme Court rejected a facial challenge to Indiana's voter ID law, 6-3 The judgment of the Court was announced by Justice Stevens (!), joined by the Chief Justice and Justice Kennedy. Justices Scalia, Thomas, and Alito concurred in the judgment. Justices Souter, Breyer and Ginsburg dissented. The opinions are here. I expect Rick Hasen will be rounding up analysis and commentary at the Election Law Blog.

UPDATE: Oops. Didn't see Eugene just beat me to it.

MORE: Here are some initial thoughts from Rick Hasen, Lyle Denniston, and the AP.

Related Posts (on one page):

  1. Justice Stevens and the Ghost of Mayor Daley:
  2. Supremes Reject Challenge to Voter ID Law:
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Supreme Court Upholds Indiana Voter Identification Law:

Opinion here; Justice Stevens, joined by Roberts and Kennedy, and Justice Scalia, joined by Thomas and Alito, were in the majority, though there's an internal split among the two groups on some aspects. Hope to have more later. [UPDATE: Skimmed the opinion and didn't find that much I could say that others haven't been saying, so I probably won't have much more on this, at least today.]

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Robert Brauneis, Guest-Blogging:

I'm delighted to report that Prof. Robert Brauneis (of the George Washington University Law School) will be guest-blogging this week, about Happy Birthday to You. Brauneis teaches copyright, trademark and property law at GW, and is co-director of GW's intellectual property program, and during his visit here he will focus on his article, Copyright and the World's Most Popular Song. Brauneis writes:

My curiosity about [Happy Birthday to You] was originally piqued by Justice Breyer's comment in his Eldred v. Ashcroft dissent that the song was "copyrighted after litigation in 1935." Since registration has always been a prerequisite for federal copyright litigation, how could the song have been copyrighted after litigation? I eventually came to the answer to that question (the litigation was about the song's melody, and the combination of melody and words was allegedly first published with notice after the complaint was filed). But by then I was hooked. My inquiries ended up leading me to archives in New York, Chicago, Louisville, and Eugene, Oregon.

The historical thesis of the article is that two pieces of received wisdom about the song -- that it is basically an unoriginal folk song, and that it is still under copyright -- are both wrong. That leads me to suggest that there are some dangers in using anecdotes in policy arguments. It also leads me to argue that the collective action problems involved in challenging copyright validity can be quite serious: "Happy Birthday to You" makes an estimated $2 million per year, yet in spite of serious weaknesses in the copyright, no one has ever challenged it, and it is likely that no one ever will.

Finally, I make some specific suggestions. I argue that as the term of copyright lengthens, there is good reason for incorporating an adverse-possession-like doctrine in copyright law, to clear title and to protect expectations that have arisen during a long period of copyright-holder inaction. I also argue that the Copyright Office should institute better recordkeeping policies, because many of the records relevant to determining copyright issues about older works are now lost or discarded.

I much look forward to Prof. Brauneis' posts.

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"Legal Weed" Beer Supposedly "Mislead[ing]"?

The AP reports,

Federal alcohol regulators ... have ordered [Vaune] Dillmann [a brewer in the town of Weed, California] to stop selling beer bottles with caps that say "Try Legal Weed." The agency, which regulates the brewing industry, said the wording could "mislead consumers about the characteristics of the alcoholic beverage." ...

What next, going after Fat Weasel Ale on the grounds that the beer actually doesn't contain any fat weasels? Is an appreciable number of customers really likely to assume that "Legal Weed" actually legally includes marijuana, which I take it is the supposed likely confusion?

Thanks to Kate Fulton for the pointer.

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"Soldier Sues Army, Saying His Atheism Led to Threats":

Very troubling, if accurate; the New York Times covers the story, but here are excerpts from the Complaint:

11. On July 31, 2007, plaintiff Hall attempted to conduct and participate in a meeting of individuals who consider themselves atheists, freethinkers, or adherents to non-Christian religions. With permission from an army chaplain, plaintiff Hall posted flyers around COB Speicher announcing the meeting. The meeting attendees included plaintiff Hall, other military personnel and nonmilitary personnel.

12. During the course of the meeting, defendant Welborn confronted the attendees, disrupted the meeting and interfered with the plaintiff Hall's and the other attendees' rights to discuss topics of their interests. During the confrontation, and because of plaintiff's actions in organizing the meeting, defendant Welborn threatened plaintiff Hall with an action under the Uniform Code of Military Justice and further threatened to prevent plaintiff Hall's reenlistment in the United States Army....

21. When plaintiff Hall learned that he would be denied an appearance before the promotions board, he sought counseling from Sergeant Van Hise, who informed plaintiff Hall that since he was "under investigation," he was not eligible for an appearance before the promotions board. Sergeant Van Hise stated that plaintiff Hall was unable to put aside his personal convictions and pray with his troops. Sergeant Van Hise believed this to be a constraint on Army morale and would limit plaintiff Hall's ability to bond with his troops. Plaintiff Hall responded that religion is not a requirement of leadership. At this, Sergeant Van Hise questioned how plaintiff Hall could ask for religious freedom when in fact, as an atheist, he has no religion. Plaintiff Hall replied that the United States Army Chaplain's manual protects atheism.

By the way, I do agree that differences in religious belief — or for that matter, racial differences — may indeed impair morale in some measure. But it seems to me that both current military rules and broader American legal principles of racial and religious equality and tolerance should lead the military to try to deal with these morale problems by means other than racial and religious discrimination. So, as I said, if the allegations are accurate, this strikes me as very troubling. Here, by the way, is what the Times story says about the factual dispute:

Major Welborn declined to comment beyond saying, “I’d love to tell my side of the story because it’s such a false story.”

But Timothy Feary, the other soldier at the [atheist] meeting, said in an e-mail message: “Jeremy [the plaintiff] is telling the truth. I was there and witnessed everything.”

I should note that it's not clear that some of the other conduct the lawsuit complains of (see paragraph 26) is unconstitutional (even if the factual account is accurate). For instance, "use of official military e-mail accounts to send e-mails containing religious rhetoric" might, depending on the circumstances, be permissible (for instance, if the message is the sender's own personal views, much as a President or other government official may often properly give a speech including religious rhetoric). But job discrimination against atheist military members, or attempts to break up atheist meetings, should be as improper as job discrimination against Jewish or Christian military members, or attempts to break up Jewish or Christian meetings.

Thanks to Adam Kaplan for the pointer.

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A Prosecutor for the Defense:

Former Guantanamo Bay prosecutor Col. Morris Davis is scheduled to testify in the military commission trial of Salim Hamdan today -- for the defense. The WSJ reports:

Col. Morris Davis, for two years the chief Guantanamo prosecutor, is expected to testify that the operation he once led has been infected with political agendas and corrupted by the Achilles' heel of military justice -- unlawful command influence. . . .

"It's not that I'm sympathetic to the detainees or say they should get a free pass," says Col. Davis, now director of the Air Force Judiciary. "But I do think they are entitled to a fair trial."

Attorneys for terrorist leader Osama bin Laden's former driver, Salim Hamdan, called Col. Davis as a witness after reading his public criticism of the prosecution effort he once led. Col. Davis resigned in October after an internal Defense Department review rejected his claims that it was improper for the same officer, Brig. Gen. Thomas Hartmann, to direct the prosecution effort and, simultaneously, provide legal advice to the commissions administrator, who is supposed to make impartial decisions over whether prisoners are charged and what resources the defense receives.

Among other complaints, Col. Davis says that Gen. Hartmann, who was appointed last summer, overruled his decision to bar use of statements taken through waterboarding, an interrogation technique that simulates drowning; critics call it torture.

Col. Davis says that Gen. Hartmann told him "there were opinions out there that there was nothing unlawful about waterboarding these guys, and these decisions are made at a much higher level."

Here are some of our prior posts on Col. Morris Davis' concerns about military commissions.

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"60 Minutes" Interviews Justice Scalia: Part 1 is here, and Part 2 is here. I thought Part 2 was particularly engaging and worth watching. Thanks to Howard for the links.
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Eminent Domain and Minority Rights:

The Orlando Sentinel, Kansas City Star and Birmingham News have just published my op ed on the impact of eminent domain on ethnic minorities (coauthored with historian David Beito, Chairman of the Alabama State Advisory Committee of the U.S. Commission on Civil Rights). Here's an excerpt:

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II....

On Tuesday, the Alabama Advisory Committee of the U.S. Commission on Civil Rights will hold a public forum at Birmingham’s historic Sixteenth Street Baptist church to address ongoing property seizures in the state....

Current eminent domain horror stories in the South and elsewhere are not hard to find....

Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn’t notice until the U.S. Supreme Court’s 2005 ruling in Kelo v. City of New London. In Kelo, the Court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of “economic development....”

Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that “[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged....”

Some earlier civil rights champions, by contrast, often ignored, or worse helped to undermine, the rights of property owners. Ironically, the same U.S. Supreme Court which handed down Brown v. Board in 1954 also issued Berman v. Parker, in which the Court allowed the District of Columbia to forcibly expel some 5,000 low-income African-Americans from their homes in order to facilitate “urban renewal.” It was Berman that enabled the massive urban renewal condemnations of later decades, which many critics dubbed “Negro removal” because they too tended to target African-Americans....

If takings end up becoming a key constitutional rights issue for minorities in the 21st century, it will be fitting that the crusade against them begins in Alabama.

Unlike in the 1950s and 60s, today the minority poor are targeted for condemnation less because of intentional racism than because of their political weakness. That, however, is little consolation to the victims.

The massive legislative response to Kelo has made important progress. But, as we note in the article, and I discuss in much greater detail in this paper, many of the new laws are likely to be ineffective. A great deal of work remains to be done before property rights - particularly those of the minority poor - get anything approaching adequate protection.

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Sunday, April 27, 2008

Voting for All the Wrong Reasons - Why We often Choose Candidates Based on Issues they Have No Control Over:

In a recent interview (linked by Todd), Fred Thompson astutely pointed out that people often vote for presidential candidates on the basis of issues that the president has no control over. This is absolutely correct. For example, short term economic conditions often have a decisive impact on the outcome of presidential elections even though presidents have little or no ability to prevent recessions. No modern incumbent president has ever won reelection in a recession year, and no modern incumbent has ever been denied reelection in a time of strong economic growth. Yet short term growth rates are almost certainly caused by factors that presidents have little or no control over.

The problem is not confined to presidential elections. Candidates for other offices also often win or lose elections on the basis of issues that they can't control. For example, a recent study finds that farm state voters routinely punish the incumbent party whenever agriculture is hurt by bad weather - even though state officials obviously can't control the weather.

Why does this happen? After my last few posts, it probably comes as no surprise that widespread political ignorance is a big part of the answer. Because each individual vote makes so little difference to the outcome of an election, voters have very little incentive to acquire even basic information about politics and public policy. Not surprisingly, extensive evidence shows that most citizens have very low political knowledge levels.

As a result, they often rely on crude "information shortcuts" to choose who to vote for. One of the most common shortcuts is what scholars call "retrospective voting" - punishing incumbents when things seem to be going badly. Retrospective voting is not a stupid or irrational strategy. Unfortunately, however, it breaks down when voters punish incumbents for events that are beyond their control - or reward them for positive events that they didn't cause. And highly ignorant voters often find it difficult to tell the difference between those events incumbents have the power to influence and those they don't. They also often can't tell the difference between a bad outcome that could have been mitigated with improved policies and one that would have been even worse if the incumbents hadn't adopted the best policies they could. To take the recession example, they often can't tell the difference between the following three scenarios:

1. There is a recession, but the president can't affect it in any way, positive or negative.

2. There is a recession, but it would have been even worse if not for the incumbent president's good policies.

3. There is a recession, and the president helped cause it or made it worse than it otherwise might have been by adopting suboptimal policies.

Whenever some visible bad event happens, voters tend to assume it is a case of 3, discounting the possibility that it's really a case of 1 or 2.

For more discussion of retrospective voting and its flaws, see this paper I wrote for the Cato Institute.

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Sunday Song Lyric: Seventy years ago today, the Massachusetts towns of Enfield, Greenwich, Dana and Prescott held their last annual Fireman's Ball before they were disincorporated to make way for the Quabbin Reservoir. Several years ago, Boston musician Mark Erelli wrote a song commemorating it, "The Farewell Ball." It begins:
The government man
Started building his dam
Then he told us it was all for the best
'Cause they were tearing it down
They were drowning our town
In the name of progress I guess

We held our heads proud
'Til the state bought us out
And there wasn't much else we could do
But go down to Town Hall
To the last firemen's ball
It was decked out in red, white and blue

Come, come take my hand
Twirl to the band 'round the old Town Hall
Come, come take my hand
This is our last chance
Down at the Farewell Ball
The full lyrics are here. There's more history here.


Thanks to reader Steven Jens for the suggestion.

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Michael Hirsh's Assertions:

A commenter on the thread below suggested that someone ought to respond to "[Michael Hirsh's] claim on the merits." The trouble is that the claim is so vague and impressionistic that it's hard to see just what to say about it. Are Southern/Southwestern mores "savage [and] unsophisticated"? Are "Yankees" from the "Northeast and upper Midwest" generally "more diplomatic [and] communitarian"? Where exactly is one to find good definitions for those terms, much less figure out which region best exemplifies them?

Likewise, when Hirsh says that, "the realism and internationalism of the Eastern elitist tradition once kept the Southern-frontier warrior culture and Wilsonian messianism in check," he's presupposing that there's a boundary between "the Eastern elitist tradition" and the views of Wilson, who was President of Princeton and a professor at Bryn Mawr and Wesleyan (though admittedly he was born and studied and practiced law in the South), all Eastern elitist institutions. Where precisely is that boundary, which we'd need to identify to see whether Hirsh's statement is indeed accurate?

Similarly, what exactly counts as a "coarsened sensibility," or "the shallowest sort of faux jingoism"? Not exactly the sorts of terms that are precisely enough defined to be conducive to careful analysis. And what's "faux jingoism," incidentally? Is it something that pretends to be real jingoism, but actually isn't genuinely jingoistic enough to count?

There are, I suppose, some things that one might test about Hirsh's claim, for instance whether "Jesus Christ Superstar" is indeed likely to be seen as more "blasphemous" than it was when it debuted; there are probably surveys on the subject, and I'd be happy to hear what people have to say about this. Another example that at least uses terms crisp enough to evaluate, is whether the "United Nations ... [is] are critical to missions like nation-building in Afghanistan"; presumably people who are more knowledgeable than I am on the subject can discuss whether the UN really has a good track record with nation-building in combat zones.

And there are some logical lapses, such as the complaint about "Hillary Clinton pander[ing] shamelessly to Roman Catholics, who have allied with Southern Protestant evangelicals on questions of morality" -- aren't those Roman Catholics mostly in the supposedly good Northeastern and Upper Midwest states, and didn't they come by their views and attitudes through their own cultural patterns, and not through the supposedly malign influence of Southerners and Southwesterners? Similarly, consider "Barack Obama seems to be so leery of being identified as an urban Northern liberal that he's running away from the most obvious explanation of his association with the Rev. Jeremiah Wright and former Weatherman Bill Ayers: after Obama graduated from college he became an inner-city organizer in Chicago, and they were natural allies for someone in a situation like that." That may be a good factual explanation, but does it really respond to the concern of many people -- all over the country -- that liberals should find better allies than that, and should be faulted when they do indeed make such alliances?

But at bottom, the overall piece doesn't strike me as a "claim" that can be sensibly confronted "on the merits." It's a rant. You can buy it or not, and be entertained by it or not, but you can't really substantively confront its core arguments.

Related Posts (on one page):

  1. Michael Hirsh's Assertions:
  2. Diplomacy:
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Diplomacy:

From a Newsweek column by Michael Hirsh:

[A] substantial portion of the new nation [the South and much of the West and Southern Midwest] developed, over many generations, a rather savage, unsophisticated set of mores. Traditionally, it has been balanced by a more diplomatic, communitarian Yankee sensibility from the Northeast and upper Midwest. But that latter sensibility has been losing ground in population numbers--and cultural weight. The coarsened sensibility that this now-dominant Southernism and frontierism has brought to our national dialogue is unmistakable.

So here's my question: It sounds like the author is trying to align himself with the "diplomatic" "Yankee sensibility," and against the "savage, unsophisticated set of mores" of various other states. But is that a "diplomatic" approach or a "coarse[]" one? The answer seems rather unmistakable to me.

Thanks to InstaPundit for the pointer.

Related Posts (on one page):

  1. Michael Hirsh's Assertions:
  2. Diplomacy:
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Robert Frank Falls For the Two-Income Trap:

In today's Washington Post, Robert Frank writes:

But while Congress clearly should not rescue borrowers who lied about their incomes or tried to get rich by flipping condos, such borrowers were at most a minor factor in this crisis. Primary responsibility rests squarely on regulators who permitted the liberal credit terms that created the housing bubble.

Hints of how things began to go awry appeared in "The Two-Income Trap," a 2003 book in which Elizabeth Warren and Amelia Warren Tyagi posed this intriguing question: Why could families easily meet their financial obligations in the 1950s and 1960s, when only one parent worked outside the home, yet have great difficulty today, when two-income families are the norm? The answer, they suggest, is that the second incomes fueled a bidding war for housing in better neighborhoods.

It's easy to see why. Even in the 1950s, one of the highest priorities of most parents was to send their children to the best possible schools. Because the labor market has grown more competitive, this goal now looms even larger. It is no surprise that two-income families would choose to spend much of their extra income on better education. And because the best schools are in the most expensive neighborhoods, the imperative was clear: To gain access to the best possible public school, you had to purchase the most expensive house you could afford.

But what works for any individual family does not work for society as a whole. The problem is that a "good" school is a relative concept: It is one that is better than other schools in the same area. When we all bid for houses in better school districts, we merely bid up the prices of those houses.

In the 1950s, as now, families tried to buy houses in the best school districts they could afford. But strict credit limits held the bidding in check. Lenders typically required down payments of 20 percent or more and would not issue loans for more than three times a borrower's annual income.

In a well-intentioned but ultimately misguided move to help more families enter the housing market, borrowing restrictions were relaxed during the intervening decades. Down payment requirements fell steadily, and in recent years, many houses were bought with no money down. Adjustable-rate mortgages and balloon payments further boosted families' ability to bid for housing.

The result was a painful dilemma for any family determined not to borrow beyond its means. No one would fault a middle-income family for aspiring to send its children to schools of at least average quality. (How could a family aspire to less?) But if a family stood by while others exploited more liberal credit terms, it would consign its children to below-average schools. Even financially conservative families might have reluctantly concluded that their best option was to borrow up.

Professor Frank has missed the ball on this one. As I observed in the Wall Street Journal last August in my column "The Two Income-Tax Trap" the math behind this simply doesn't add up--using Warren and Tyagi's own numbers:

The argument is developed in the book, "The Two Income Trap: Why Middle Class Mothers and Fathers are Going Broke," by Harvard Law School Professor Elizabeth Warren and her daughter Amelia Tyagi. In fact, using their own numbers, it is evident that they have overlooked the most important contributor to the purported household budget crunch — taxes.

Ms. Warren and Ms. Tyagi compare two middle-class families: an average family in the 1970s versus the 2000s (all dollar values are inflation-adjusted). The typical 1970s family is headed by a working father and a stay-at-home mother with two children. The father's income is $38,700, out of which came $5,310 in mortgage payments, $5,140 a year on car expenses, $1,030 on health insurance, and income taxes "which claim 24% of [the father's] income," leaving $17,834, or about $1,500 per month in "discretionary income" for all other expenses, such as food, clothing, utilities and savings.

The typical 2000s family has two working parents and a higher income of $67,800, an increase of 75% over the 1970s family. But their expenses have also risen: The mortgage payment increases to $9,000, the additional car raises the family obligation to $8,000, and more expensive health insurance premiums cost $1,650. A new expense of full-time daycare so the mother can work is estimated at $9,670. Mother's income bumps the family into a higher tax bracket, so that "the government takes 33% of the family's money." In the end, despite the dramatic increase in family income, the family is left with $17,045 in "discretionary income," less than the earlier generation.

The authors present no explanation for why they present only the tax data in their two examples as percentages instead of dollars. Nor do they ever present the actual dollar value for taxes anywhere in the book. So to conduct an "apples to apples" comparison of all expenses, I converted the tax obligations in the example from percentages to actual dollars.

In fact, for the typical 1970s family, paying 24% of its income in taxes works out to be $9,288. And for the 2000s family, paying 33% of its income is $22,374.

Although income only rose 75%, and expenditures for the mortgage, car and health insurance rose by even less than that, the tax bill increased by $13,086 — a whopping 140% increase. The percentage of family income dedicated to health insurance, mortgage and automobiles actually declined between the two periods.

During this period, the figures used by Ms. Warren and Ms. Tyagi indicate that annual mortgage obligations increased by $3,690, automobile obligations by $2,860 and health insurance payments by $620 (a total increase of $7,170). Those increases are not trivial — but they are swamped by the increase in tax obligations. To put this in perspective, the increase in tax obligations is over three times as large as the increase in the mortgage payments and almost double the increase in the mortgage and automobile payments combined. Even the new expenditure on child care is about a quarter less than the increase in taxes.

Overall, the typical family in the 2000s pays substantially more in taxes than the combined expenses of their mortgage, automobile and health insurance. And the change in the tax obligation between the two periods is substantially greater than the change in mortgage, automobile expenses and health-insurance costs combined.

Isolating just the mortgage burden, according to Warren & Tyagi's figures the percentage of family income dedicated to mortgage payments actually declined from the 1970s to 2000s, from 14% of household income ($5310 of $38,700) to 13% of household income ($9000 of $67,800). Again, this is using Warren & Tyagi's own figures.

I learned after writing the column that there is some dispute about the source of the rising tax burden. I followed Warren and Tyagi's lead from the book and attributed the growth in the tax burden primarily to the second-earner bias. Subsequently I found that there is some dispute about the extent to which the growth in the tax burden is attributable to income taxes rather than state and local taxes (including state income taxes). What has not been questioned is that Warren and Tyagi's own numbers show that the growth in the overall household tax burden overwhelms the growth in home mortgage expenses with respect to its impact on the household bottom line.

I like some of Bob Frank's work, especially back before he started writing his really political stuff. But I'm afraid on this one he fell into the two-income trap.

Update:

There is some confusion over whether Warren and Tyagi's analysis refers to marginal or average tax rates. It is average. In a long post on which the WSJ column was based I quoted the relevant excerpt from the book The Two-Income Trap (for those who don't have ready access to the book itself). As I noted in that post, the increase in taxes (in dollar terms) is more than three times greater than the increase in mortgage payments (the supposed driver of the "two-income trap"). I present the budget analysis graphically there as well.

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