Saturday, May 24, 2008

Which Side Are the Sexists On?

Donald Boudreaux ponders the implications of Senator Hillary Clinton's claim that her difficulties in the Democratic primaries are due to sexism.

So a woman who holds degrees from Wellesley and Yale – who has earned millions in the private sector, won two terms in the U.S. Senate, and gathered many more votes than John Edwards, Bill Richardson and several other middle-aged white guys in their respective bids for the 2008 Democratic nomination – feels cheated because she's a woman.

Seems doubtful. But hey, I'm a guy and perhaps hopelessly insensitive. So let's give her the benefit of the doubt and assume that her campaign has indeed suffered because of sexism.

This fact (if it be a fact) reveals a hitherto unknown, ugly truth about the Democratic Party. The alleged bastion of modern liberalism, toleration and diversity is full of (to use Mrs. Clinton's own phrase) "people who are nothing but misogynists." Large numbers of Democratic voters are sexists. Who knew?

But here's another revelation. If Mrs. Clinton is correct that she is more likely than Barack Obama to defeat John McCain in November, that implies Republicans and independents are less sexist than Democrats.

Meanwhile, Camille Paglia says "sexism has nothing to do it."


Hagee on Hagee:

Hagee explains his remarks on the Holocaust:

What has been disappointing has been to see my life's work - the great passion of my life - mischaracterized and attacked. I have dedicated my life to combating anti-Semitism and supporting the State of Israel. In taking a stand for Israel I have received death threats from anti-Semites and neo-Nazis, and I've had the windows of my car blown out beneath the windows of the rooms in which my children slept. To hear people who know nothing about me or my life's work claim that I somehow excuse the Holocaust is simply heartbreaking.

Let me be clear — to assert that I in any way condone the Holocaust or that monster Adolf Hitler is the worst of lies. I have always condemned the horrors of the Holocaust in the strongest of terms. But even more importantly, my abhorrence of the Holocaust and anti-Semitism has never stopped with mere words.

I have devoted most of my adult life to ensuring that there will never be a second Holocaust. I have worked tirelessly to eliminate the sin of anti-Semitism from the Christian world and to ensure the survival of the State of Israel.

The fact is that all people of faith have had to wrestle with the question of why a sovereign God would allow evil in the world. After Auschwitz, this question became more urgent than ever.

Many people simply could not explain how a loving God would permit such horrors. After the Holocaust, they abandoned their faith in a sovereign God who intervenes here on earth. While I disagree with this conclusion, I would never denigrate those who arrived at such a conclusion.

But I and many millions of Christians and Jews came to a different conclusion. We maintained our faith in a sovereign God who allows both the good and the evil that is in the world. We therefore search the scriptures for an explanation for that evil. We believe that the words of the Hebrew prophets such as Jeremiah may help us understand the mind of God. But our search for an explanation for evil must never be confused with an effort to excuse it.

H/T: Rosner


Friday, May 23, 2008

Does Religious Belief Increase Happiness?

Todd's excellent recent post on academics and happiness also raises the much broader question of whether religious belief causes happiness. Some studies, including Arthur Brooks' recent important work, do claim to show a correlation between the two. However, the argument that this proves that being religious makes you happier has two serious flaws.

I. Correlation vs. Causation.

First, even if we prove that there is a correlation between religious belief and happiness, that is not the same thing as proving causation. It could be that people who are happy for reasons unrelated to religion are more likely to be religious. There are a number of plausible scenarios under which this theory would be true. For example, it may be that a tendency towards social conformity makes people happier because they clash less with social norms and the people around them. And conformists are more likely to be religious than nonconformists (at least in an overwhelmingly religious society such as the US). An interesting test of this hypothesis would be to see whether religious believers are (controlling for other variables) happier than atheists in majority-atheist societies such as Denmark, Japan, and the Czech Republic.

II. Measuring Religious Belief vs. Measuring Attendance at Religious Services.

Second, and much more important, the studies do not in fact find even a correlation between happiness and religious belief. What they show is a correlation between happiness and attendance at religious services. For example, Brooks, in the article linked above, shows that "religious" people are much more likely to report being "very happy" in surveys than "secular" people. However, he defines "religious" people as those who say they "attend houses of worship at least once per week" and "secular" as those who say they "never" attend houses of worship.

This is a crucial distinction. It is highly likely that all Brooks' work and other similar studies have shown is that religious believers who go to services regularly are happier than those believers who never do so. Brooks' "secular" category includes some 20 percent of the American population. Yet other survey data shows that atheists and agnostics make up only about 3 to 9 percent of the population. Even if all the atheists and agnostics in Brooks' survey were counted as "secular," it would still be the case that the vast majority of his "secular" respondents (at least 55%), are in fact religious believers who don't go to services. Moreover, many atheists and agnostics do attend religious services at least occasionally (e.g. - for family or social reasons), and so would not be included in Brooks' "secular" category. Some would even be categorized as "religious." I have an atheist friend who regularly attends religious services with her believer husband. In Brooks' study, she would be considered "religious," even though she denies the existence of God and doesn't believe that the precepts of her husband's religion (or any religion) are actually true.

Why would believers who attend services be happier than those who never do? There are many possible reasons, and some of the most plausible ones do not apply with equal force to nonattendance by atheists and agnostics. For example, attendance at religious services is a social activity. We know from a great deal of social science evidence that people who build up "social capital" by participating in social and community activities tend to be happier than those who do. Understandably, religious people with high social capital will tend to participate in religiously-oriented groups. Equally understandably, atheists and agnostics will tend to focus on secular ones. For a religious believer, never attending services is a strong indication of low participation in social activities more generally. For an atheist or agnostic, it might just be an indication that he participates in secular activities instead.

Similarly, many religious people believe that they have a duty to attend services. Those who believe they have such a duty but never live up to it may well be down on themselves for what they perceive to be their own immoral conduct. Almost by definition, atheists and agnostics do not believe they have any moral duty to attend religious services. So they are extremely unlikely to engage in self-recrimination for failing to do so.

III. Limitations of the Argument.

It's important to be clear about the limitations of my argument. I'm not saying that the evidence shows that atheists are happier than religious believers. I'm not even saying Brooks' hypothesis that religious belief makes one happier is provably false. All I'm suggesting is that the evidence he presents doesn't substantiate it.

I'm also not suggesting that the lack of a connection between religious belief and happiness proves that religion is false. The validity of belief in God is independent of whether nor not such belief makes people happy. The same is true for the validity of atheism. I am an atheist because I think logic and evidence support the conclusion that God doesn't exist, not because I think that being an atheist will make me happy.

In fact, it's perfectly possible for belief in imaginary beings to increase happiness. For example, many children are probably happier because of their belief in Santa Claus or the Tooth Fairy. When they learn the truth, they tend to be disappointed, and their level of happiness declines (at least for a time). By contrast, belief in real beings is sometimes more unpleasant than blissful ignorance of their existence. For example, many Americans might be happier if they didn't know about Osama Bin Laden and therefore didn't have to worry about the threat he poses. The truth may set you free. But it won't always make you happy.

UPDATE: In his article linked above, Brooks also notes that "people who pray every day are a third likelier to be very happy than those who never pray, whether or not they attend services." To my mind, this means of measuring religiosity is not sufficiently distinct from attending services. Like attendance at services, regular prayer is also often a social activity (e.g. - many people do it with their families and friends), and is thus likely to be correlated with "social capital." Similarly, many of those who say they "never" pray are likely to be religious believers rather than atheists or agnostics. They may simply belong to religions that don't require prayer; or they doubt its effectiveness despite belonging to denominations that hold otherwise. Thus, Brooks' use of the prayer variable likely proves only that religious people who pray regularly tend to be happie than those religious people who don't. Brooks himself offers a plausible explanation for this result when he notes (in a different context) that "what makes some religious people unhappy is an image of God as severe, unloving or distant . . . regular churchgoers who feel 'very close to God' are 27% more likely to be very happy than churchgoers who do not feel very close to God." If you are religious and believe that God is likely to answer your prayers, that may well make you happier than you would be if you believed in God but thought that he is - in Brooks' words - "severe, unloving, or distant." But that fact says little about the effects on happiness of not believing in God at all.


[Peter Spiro, guest-blogging, May 23, 2008 at 4:42pm] Trackbacks
America, the Beautiful (What Comes After?)

Citizenship is a tough subject to address as an academic or otherwise. The popular ivory-tower conception of academics notwithstanding, most have nationality and are proud of it (liberals and conservatives alike). Most academics addressing American citizenship as an institution are themselves American. That makes it tough to have the sort of dispassionate discussion one might be able to have with respect to, say, copyright law. Everyone’s got something invested in citizenship. Nobody’s “against” it, in contrast to the related but distinct issue of immigration policy; it’s a consensus institution.

Which says a lot about its continuing vitality, and about the continuing vitality of American citizenship and national community in particular. Citizenship will be around in some form for a long time to come. There’s a lot of which to be proud in America’s history. The nation-state is a massive, perhaps unparalleled, achievement in the span of human history. And the United States surely marks its highpoint.

But that doesn’t necessarily make it for all time. There’s a natural tendency on the part of humans (and especially academics) to believe that they live in interesting times (even at the same time that it’s held out as a curse). But even discounting for that tendency, we may be witnessing watershed developments that point away from the state and towards other forms of association. It seems to me that academics can add some value by looking beyond immediate policy horizons to grappling with the shift and its many implications.

So what lies beyond citizenship in the state? One thing’s clear: it won’t be some sort of happy-go-lucky world citizenship. Community is inherent to our existence but community isn’t possible without difference. People will continue to distinguish themselves from each other on a group basis, and groups will find themselves in conflict. You can think of the Westphalian system as a sort of multiculturalism on a global scale, with sovereignty as a shield for protecting group difference. The new order we may be moving towards might be a more familiar sort of multiculturalism, beyond the confines of the state.

Can the lessons of citizenship in the state translate to new forms of association (or old ones, like religion) whose importance is rising relative to states? Even if we aren’t moving towards one-world government on the model of the state, how can citizenship translate to newly consequential supranational institutions? I close with some thoughts on that in Beyond Citizenship, and that’s where I’ll close here.

I’ve enjoyed blogging this week at VC, and thanks to commenters (excepting those who accused me of treason!) and to Eugene for hosting me here.


Academics and Happiness Revisited:

Todd makes many good points in his recent post on academics and happiness. I think that Todd is absolutely right that, relative to the general economy, the academic economy tends to be status-based. He is also right that the struggle for status among academics tends to generate unhappiness because it is inherently a zero-sum game. My status can't rise unless some other academic's status falls.

That said, I don't think this proves that academics, overall, are less happy than members of other professions. The zero-sum conflict over status is a source of unhappiness that is more prevalent in academia than elsewhere. But academia also offers unique opportunities for happiness that most other professions don't have, or at least not to the same extent. These include the ability to work on ideas that interest you, controlling your own schedule, and influencing public debate.

For the reasons I discussed in this post, I therefore continue to believe that, on balance, academics are no more unhappy with their jobs then people working in most other professions.

The status problem and other arguments claiming that academics are unhappy because of the nature of their jobs should be rigorously distinguished from claims that academics are unhappy because the people who go into academia tend to be unhappy for reasons unrelated to their jobs. Todd's argument that academics tend to be unhappy because they are disproportionately nonreligious falls into the latter category. Or at least it does so unless one claims that nonreligious academics lost their faith as a result of going into academia. I would guess, however, that most nonreligious academics held those beliefs even before they took academic jobs.

My view on academics' happiness is that they are generally happier with their jobs than professionals in most other fields. I am agnostic on the question of where academics' overall happiness with their lives ranks.


Men, Women, and Same-Sex Marriage:

I was under the impression that women tended to oppose same-sex marriage less than men did; consider, for instance, the July 13-27, 2003 poll noted here, in which oppose exceeded favor among women by 12%, and among men by 17%. This ABC News poll reflects the same gender gap.

It was striking, then, to see the opposite breakdown in the L.A. Times California poll. The question,

A proposed amendment to the state's Constitution that may appear on the November ballot would reverse the court's decision and state that marriage is only between a man and a woman. If the election were held today, would you vote for or against the amendment?

Men would vote for by a 43%-41% margin; women would vote for by a 58%-31% margin. As to "Do you agree or disagree with Gov. Arnold Schwarzenegger's decision to respect the court's ruling and not support a ballot initiative to define marriage as only between a man and a woman?," the disagree-agree margin for women is 7% higher than for men. As to "Do you believe that same-sex relationships between consenting adults are morally wrong, or do you believe that it is not a moral issue?," the wrong-not wrong margin for women is 13% higher than for men (though both sexes are more likely to say "not wrong" than wrong). As to "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple?," the disagree-agree margin for women is 5% higher than for men (though again both sexes are more likely to say "agree"); this last difference is likely statistically insignificant.

Oddly, as to "approve or disapprove of the California Supreme Court's decision last week to allow same-sex marriage in California," the margin is the same, 53%-42% among women and 51%-40% among men.

So some possibilities: (1) California women and men are quite different in this respect from women and men nationwide. (2) The poll was badly conducted. (3) People's views are so soft on the subject that the results aren't terribly reliable (though why would that affect the gender gap?). (4) Two or more of the above.


"Californians Barely Reject Gay Marriage,"

reads this L.A. Times headline (with "narrowly" instead of "barely" on the Web version). The opening paragraph reads, "By bare majorities, Californians reject the state Supreme Court's decision to allow same-sex marriages and back a proposed constitutional amendment aimed at the November ballot that would outlaw such unions, a Los Angeles Times/KTLA Poll has found."

It's only in paragraph 6 that reads learn that the amendment "was leading 54% to 35% among registered voters." It's true, as the paragraph says, that "ballot measures on controversial topics often lose support during the course of a campaign" and therefore "strategists typically want to start out well above the 50% support level." But despite this 54%-35% doesn't strike me as "barely"; likewise, the 52%-41% disapproval of the California Supreme Court decision doesn't seem likely "barely reject[ing]" to me.

So while 52% and 54% are indeed not much above 50%, they are much more than barely or narrowly above 41% and 35%. Formulating both the headline and the opening paragraph in terms of "barely" or "narrowly" and "bare majorities," without noting the large margins, strikes me as not the best way of presenting the data to the reader.

I should stress, by the way, that my point here is about the coverage of the poll, not about the likely November results. I suspect that the proposed amendment banning recognition of same-sex marriages will pass (assuming, as seems likely, that it will get on the ballot); but now is not November, and the voters haven't seen the campaigns on both sides. That the view "As long as two people are in love and are committed to each other, it doesn't matter if they are a same-sex couple or a heterosexual couple" polls at 59%-35% in favor suggests that public opinion may well be quite movable, if the issue is framed in that way.


Why Are Academics So Weird?

A few weeks back Ilya, Megan McArdle, and Arnold Kling had a go-around with the question of why academics are less happy in their jobs than other people. Assume for the sake of argument that is true, and I think there is some truth to it. I think I'm thinking along the same lines as Ilya, Megan, and Arnold, but here's how I think of it. This is all overgeneralized, but I think captures the essential dynamic.

Most Americans work in a money economy. The good thing about a money-based economy is that wealth is inherently a positive-sum game. Sure, there are some zero-sum aspects to it, but more money for by neighbor doesn't mean less for me. Thus, it is possible for all of us to get richer without any inherent zero-sum rivalry.

Academia, by contrast, is a status-based economy rather than a money-based economy. Status, unlike income, is an inherently zero-sum game. I can only have more status if you have less--status is all relative and positional. This means that at any given time those with less status are trying to gain more status. And those with high status are tenuously trying to hold on to their high status--with the threats coming from those with lower status trying to knock them off.

Now here's where it gets kind of twisted--given that the money-based economy is the default rule in America, who is it that are most likely to self-select into a status-based economy? You got it--those are are most motivated by status. So those who will self-select into the status-based economy are those who have a different tradeoff between status and income than the typical person. Indeed, the salary scale in academia is very flat when compared to that in other occupations, especially those comparable for academics such as law and business.

What this means is that we get those who are most obsessed and insecure about status entering into the status-based economy.

So I think this might explain some of the peculiarites of the sociology of our profession to outsiders. Outsiders often are baffled by the sorts of battles that consume academics and our obsession about things like whether our work is cited. "Who cares?" whether your article was cited asks my wife (well, she doesn't actually say it but you can tell she's thinking it). But that's the point--citations are not merely a means to higher income (as they would be in the standard economy) but in many ways they are the primary reward or income itself.

There is the old saying that "academic battles are so vicious because the stakes are so small." That's nonsense. There are middle managers all over America right this moment backstabbing each other for a nicer office or better parking space. What makes academic battles so vicious, I think, is that there is the status battle tied up in them.

Moreover, an academic's work is personal in a sense that most people's work is not. Your identity is tied to your work in a very different way from say, an electrician or a car manufacturer. It is an extension of your identity. So when your work is ignored or criticized, it is very difficult not to take it personally. Again, this reinforces the nefarious status dynamic.

So that's my view as to why academics are so weird. And why they often seem unhappy as well--it is difficult to be truly comfortable in your particular status ranking because there is always relative positioning going on. As Arnold Kling stresses, this suggests that the only way to be truly happy as an academic is to try to opt-out of the status arms-race: "Once you get on the ego treadmill, not only do you become bitter, but you have to start viewing others not for their intrinsic qualities but for their usefulness as stepping stones. If you can stay off of the ego treadmill, then success becomes more a matter of being near friends and living in an area with the type of amenities you prefer."

That's the main thing, I think. In talking about academics and happiness, however, as a purely empirical matter there is one possible other factor that might be relevant. And let me stress that this is being presented as purely correlation and not causation, positive not normative. Research indicates that those who are conservative and religious tend, on average, to be more likely to be happy than those who are not. To the extent that academics are disproportionately non-conservative and non-religious--which is plainly the case--as a purely statistical matter one would predict that academics would be less likely to be happy than the general population.

I was recently reading William F. Buckley's book Nearer, My God. He did make one interesting point in passing, which is something along the lines that he had known some people during his life who would have been happier had they known that a divine force was looking out for them. (I can't recall the exact quote as I thought the book itself pretty mediocre and got rid of it as soon as I finished reading it, so I don't have it here to reference the exact quote). But there is an interesting point here, which is that it seems that those of religious conviction are often happier and more contented with their life than others.

Critics might respond that perhaps they should be unhappier and that religion is just a delusion to keep them from confronting how terrible their plight in life is. But that's not the point--the point is that whether they should be unhappy or not, reserach indicates those who are religious in fact are happier than others and my casual observation of people suggests that conclusion seems plausible to me. I'll save my speculations on why that might be for another day (I think the argument looks something like this), and simply note here the empirical point and the plausibility to me of those empirical results.

Again, on this second point, the observation is purely an empirical conclusion, not a normative one, and would be a theory grounded in the type of people who are represented in academia rather than anything inherent in academia itself.


I should emphasize that I myself am not unhappy to be a law professor. In fact, I love it. And I've also worked in private practice and in the government. So this post is based on generalizations of those experiences.


The Demise of the Humanities:

Robert VerBruggen has a marvelous one paragraph summary of the current state of the study of the humanities in the modern university, summarizing Christopher Orlet's review of Anthony Kronman's book Education's End (got that?):

He makes the case that humanities are trending down for three reasons. One, in a tougher economy, it's not really worthwhile to spend a ton of money learning about the meaning of life instead of preparing for a career. Two, PC has taken away whatever value such moral studies used to have. Three, rather than grapple with big questions, the humanities have been focusing on minutiae.

I read Tony's book this past fall and thought it very good and very insightful. Kronman's analysis of the crippling effects of political correctness on the humanities is especially powerful. Kronman also presented the inaugural Janus Lecture this spring for the Daniel Webster Program at Dartmouth. I recommend the book for those interested in higher education today.

I don't recall Tony actually making point one above (that it is not worthwhile to spend a ton of money learning about the meaning of life) and it doesn't seem consistent with my take away from the book. The point itself, however, seems quite valid whether it is Kronman's or Orlet's. The three factors, of course, are mutually reinforcing--the triviality and PC'ness of much of the humanities contributes to the perception that they are a waste of time compared to the task of human capital development.


Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?

A few weeks ago, I blogged about how a proposed law in Massachusetts would (likely inadvertently) criminalize cheating on one's lover -- not just adultery, but cheating on nonmarital relationships as well. A few days ago, I blogged about how the Missouri legislature had passed a law criminalizing emotionally distressing another person.

But I completely missed the connection between the two: Under the Missouri bill (which will soon be law, assuming the Governor signs it), it will be a crime to cheat on a lover with the purpose of emotionally distressing them.

The law makes it a crime to "Without good cause engage[] in any [act other than communication] with the purpose to frighten, intimidate, or cause emotional distress to another person, [and thereby] cause such person to be frightened, intimidated, or emotionally distressed, [when] such person's response to the act is one of a person of average sensibilities considering the age of such person." Say someone cheats on one's lover in order to distress them, for instance to retaliate for the lover's past affair or other mistreatment, and then allows the lover to discover this. That's engaging in an act with the purpose of causing emotional distress to another person. It causes emotional distress. The emotional distress is what a person of average sensibilities would experience under the circumstances. And it's hard to see any "good cause" for cheating, though I suppose the defendant could try to persuade the jury to the contrary.

And it's not just cheating, in the sense of illicit sex. The same could be if you have a not-yet-sexual romantic relationship with Alan, and then let yourself be caught kissing Bob in order to distress Alan. The touchstone, after all, is just the intentional infliction of emotional distress.

But wait, there's more: Let's say that you're not trying to hurt your regular lover, but the regular lover is under seventeen (for instance, if you're both sixteen; sex among sixteen-year-olds isn't statutory rape in Missouri), and you recklessly let slip something in conversation with the regular lover that reveals your cheating. That too might be a crime, because it's "[k]nowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... caus[ing] emotional distress to such other person." I suppose that if you just confess to the lover, that probably wouldn't be a crime, since the desire to come clean might be seen as "good cause." But if you just let something slip, it's hard to see how the reckless causing of emotional distress would be seen as having a "good cause" (especially since the slip may make the cheating even more distressing than either successful concealment or a deliberate confession).

Fortunately, all this is just a class A misdemeanor -- except if you're a repeat offender: If you've been found guilty of violating the law before, subsequent violations are class D felonies.

Oh, and if you're a parent who recklessly lets slip to your under-17 child that you're cheating on the child's other parent, that's a class D felony, too, since the "[h]arassment" will have been "[c]ommitted by a person twenty-one years of age or older against a person seventeen years of age or younger."

And yes, I know that prosecutorial discretion will keep these cases from being filed often. But how much are you willing to trust prosecutors? What if the wronged lover -- or the wronged lover's parent -- is a prosecutor, or a police officer or other government official or prominent citizen who has the prosecutor's ear? What if the cheating unintentionally leads to harm (even suicide, which cheating sometimes does lead to), and the public demands retribution? Might it not be better to just avoid the problem by not passing such broad and vague laws to begin with?

Related Posts (on one page):

  1. Missouri Prosecution for Emotionally Distressing a Minor:
  2. Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?
  3. A Crime to Emotionally Distress People?

"No Charges Over [Anti-]Scientology Demo[nstration]":

The BBC reports:

Legal action has been dropped against a 15-year-old who faced prosecution for branding Scientology a "cult".

The teenager held up a sign which read, "Scientology is not a religion, it is a dangerous cult", in May outside its headquarters in the City of London.

City of London Police said it had received complaints and warned the teenager to get rid of the sign as it breached the Public Order Act.

More on the incident in this post. Here's my question:

A Crown Prosecution Service (CPS) spokesman said: "In consultation with the City of London Police, we were asked whether the sign was abusive or insulting.

"Our advice is that it is not abusive or insulting and there is no offensiveness (as opposed to criticism), neither in the idea expressed nor in the mode of expression."

Can anyone who is familiar with English law tell me what "abusive," "insulting," and "offensive," which are apparently terms of art, mean? ("Abusive" and "insulting" appears to be the statutory test; "offensive" seems to be the Crown Prosecution Service's interpretation of the terms.)

I would think that calling a religion a "cult" would be offensive and insulting in the lay sense of the word -- it may be quite right, and it should certainly be constitutionally protected, but despite its being offensive and insulting, not somehow "there is no offensiveness" there. So what's the legal rule in England about what's allowed and what's not?

Related Posts (on one page):

  1. "No Charges Over [Anti-]Scientology Demo[nstration]":
  2. Possible Prosecution in England for Calling Scientology "Cult" on Sign:

Just to Make Sure I Have this Straight:

According to Brian Leiter, Phyllis Schlafly is a bigot, parochial, and an ignoramus, so much so that the fact that Rick Hills is perplexed that Leiter is so angry about her receipt of an honorary degree at Wash. U. reflects Hills's "silly prejudices."

But while Schlafly is beyond the pale because of the bigotry Leiter identifies (including rather tenuous evidence of bigotry, such as membership in the paranoid anti-Communist John Birch Society), but any criticism of Norman Finkelstein's anti-Semitic and misogynistic statements, (e.g., that leading American Jewish activists "resemble stereotypes straight out of [Nazi newspaper] Der Sturmer," and that a photo of two respected elderly Jewish women may "give you nightmares") is a "smear attack." [Update: To be fair, while Leiter thinks that Schlafly's membership in the John Birch Society and opposition to the '64 Civil Rights Act reflects bigotry, he denies that Finkelstein wrote anything anti-Semitic.]

Schlafly’s distaste for homosexuals is appalling, but pointing out that Joseph Massad argues that homosexual identity in the Arab world is purely a product of Western cultural imperialism via a conspiracy he calls "Gay International," and that Massad suggests that Arab homosexuals have basically invited Arab governments to persecute them because they are importing foreign ideologies, is a "smear attack".

And, finally, that Schlafly's hostility to evolution reflects ignorance born of ideology, but crude Marxist ideas such as "one can explain historical events by attention to how different economic classes pursue their material interests, which lead them into conflict with other economic classes" are "amply supported in numerous historical and sociological studies". And merely noting that the fact that many left-wing intellectuals continue to cling to discredited Marxist and Freudian ideology suggests that conservatives aren’t the only ones who reject the scientific method amounts to "mindless anti-intellectualism about other scholarly pursuits."

UPDATE: Leiter and I are in accord! He writes in the comments "Yes, I think you've got it straight, thanks."


Latest News in Dartmouth Alumni Association Election:

Voting is still ongoing in the Dartmouth Alumni Association election. The latest twist in the Dartmouth Association of Alumni election process is that the pro-Board-Packing slate is paying Dartmouth students to call alumni on its behalf. Apparently it is easy money:

I did it today and it was super easy. Hours 7-10:30 pm = $100. All you do is read a prompt sheet and call women Alumni. Martha Beattie is a super sweet woman and bought pizza an Vitamin water for us! We are going to call again on Monday and Tuesday (same hours). If you want to help please just come to the Coldwell Banker House (yellow house across from Psi U) Mon or Tues between 7-10:30pm. If you are concerned about calling because you don’t now what you are representing you can go to the org’s website: and read up on the initiatives.

And remember as you read this that according to my colleagues on the Board it is the supporters of parity that supposedly "have politicized Dartmouth elections and have brought Washington-style politics to trusteeship." As Joe Malchow observes, "Of course, since these students are working against their own interests—in favor of a plan that would limit their voices—one is not surprised that they need to be paid."

In other news, the Byrne family--longtime and generous supporters of Dartmouth--have announced their opposition to the Board-packing plan and support for the pro-parity slate. I think they sum up the situation pretty well: "We urge you to vote for the Parity Slate. If we don’t elect them, your vote will never matter again":

The College-sponsored slate has the full tools of the College propaganda machine; the Parity team do not, and must rely on partial, obsolete mailing lists. That kind of undemocratic approach is key to why we feel continued Alumni - elected involvement at the 50% level is vital to the future of the College.

The first tool of the propagandist is the ad hominem attack. They don’t really try to defend the indefensible, namely the implementation of the Board-packing plan by stealth. Instead, they label their opponents, especially the four petition trustees, as extremists, bent on taking over Dartmouth.

We are not extremists, and we have never met the petition Trustees or any of the Petition slate. We are two brothers, who love Dartmouth and have consistently supported the College for many years. Frankly, we expect that there would be important disagreements between us if we did meet the petition Trustees. But these things are clear:

1) Because a few trustees got elected by petition, who had differing views to those of the leadership, the college tried to change governance by referendum, to make it harder for petition trustees to get elected. They lost that referendum.

2) President Wright wrote to us shortly thereafter, promising an end to the matter.

3) The matter was not, in fact, dropped, and a five man governance committee managed to plan and narrowly pass a resolution to turn Dartmouth’s Trustee’s Board into a self-electing elite, permanently. The courts will decide whether this was a breach of contract. However we don’t need a court to tell us it was a heavy-handed and undemocratic thing to do.

4) The extremists are the ones who breached a hundred year old deal because a handful of trustees had views they didn’t like.

We urge you to vote for the Parity Slate. If we don’t elect them, your vote will never matter again.

If you are a Dartmouth alum and haven't voted yet, you still have time. A sample ballot for the Dartmouth Parity slate is available here.

When "Exclusive" Does Not Mean "Exclusive":

The Washington Post reports on a portion of an OLC memo -- just a sentence really -- concerning the Foreign Intelligence Surveillance Act (FISA) that reinterprets the word "exclusive" to mean something less.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration. . . .

The context of Yoo's statement is unclear, because the rest of the memo remains classified. . . .

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.


Where'd the 5-4 Splits Go?

Linda Greenhouse's exploration of the relative paucity of 5-4 decisions thus far this term generally overlooks the most likely and plausible explanations: Last year's high proportion of 5-4 splits along ideological lines was itself and outlier and an artifact of the OT2006 docket. Last term had a relatively large proportion of exceedingly close and difficult cases, many of which concerned contentious, high-profiled issues. This term certainly has high profile cases as well, some of which have already been decided, but they have not been decided along traditional "conservative" and "liberal" lines. As a consequence, OT2007 is looking more like Chief Justice Roberts' first term on the Court, OT 2005, than it is OT2006.

Greenhouse's suggestion that conservatives on the Court have been chastened, and this explains the apparent lack of ideological division, is particularly unconvincing to me for two reasons. First, the big decisions in high profile cases (voting rights, child porn, lethal injection, Medellin), have largely gone in a "conservative" direction, just with larger majorities. So if any of the justices have changed their approach — and I am skeptical that any have — it would be those liberal justices who are joining conservative majorities. Indeed, one plausible theory (albeit not one I am endorsing) is that Justice Stevens has moderated his position in several cases so as to stay with Justice Kennedy, in the hope that he can have more influence on the swing justice in other cases.

Another problem with Greenhouse's suggestion that the conservatives have tempered their approach is that the conservative 5-4 decisions last term were not particularly aggressive or ground-breaking (a point I've made before). Few of the 5-4 decisions in OT 2006 made significant changes in the law (and the 5-4 decision that broke the most new ground, Massachsuetts v. EPA, went in a decidedly "unconservative" direction). Moreover, as Greenhouse herself noted at the time, several of the Court's conservatives expressed disappointment that the Court did not go farther.

OT2007 is not shaping up to be any more or less "conservative" than OT2006 (at least not yet). It just features a different line-up of cases, which are more conducive to larger majorities and less spirited dissents. This could certainly change — we have lots of cases to go, and plenty of opportunities for fiery divisions. Nonetheless, if I were to make a prediction it would be this: History will reveal that OT2006 was the outlier on the early Roberts Court, not OT2007.

UPDATE: Ed Whelan adds some thoughts here.


Why So Few 5-4 Decisions?: Linda Greenhouse has an interesting article in the New York Times reporting on and speculating about the cause of the very surprising number of 5-4 cases at the Supreme Court so far this term: So far only 1, and in a statutory case.

  Some of Greenhouse's possible explanations strike me as plausible, although some strike me as quite unlikely (such as her theory that Chief Justice Roberts was chastened by a critical paragraph in Richard Posner's new book). My own speculation is that part of it is just a coincidence; a lot of cases decided so far this term were just lopsided by nature. Also, I would guess that part of it is the Justices settling in a bit with each other and realizing that they need to pick their battles more carefully than they did last Term.

Thursday, May 22, 2008

McCain Dumps Hagee Over Holocaust Remarks:

Sen. McCain has rejected the endorsement of Rev. John Hagee, whose controversial, inflammatory statements on a variety of matters have caused him to be a liability to the McCain campaign. The final straw was a sermon from the late 1990s in which Hagee said, interpreted biblical prophecy about the return of the Jews to the Land of Israel: "Then God sent a hunter. A hunter is someone with a gun, and he forces you. Hitler was a hunter. ... How did it happen? Because God allowed it to happen. Why did it happen? Because God said, 'My top priority for the Jewish people is to get them to come back to the land of Israel.'"

This is a pretty stupid idea, but I don't find it "anti-Jewish." That's probably because I've heard similar statements from Orthodox Jews. For example, when I was in elementary school in an Orthodox day school, we were discussing why the Holocaust happened. One of my classmates volunteered that his father told him something like that it was necessary "for us to get Israel." As I understood the comment at the time and his further elaboration on it, his father was saying something like "God did something horrible to us for reasons known only to Him, and then paid us back (collectively) with a lasting benefit."

Even as a fourth-grader, I thought this was a repugnant idea, and that anyone who believed it should cease worshiping this particular God immediately, unless they were only doing so out of fear of what nutty, cruel thing He might do next (an attitude that admittedly is reflected in many Jewish prayers). But it reflects the trap you're in as an orthodox (small "o") believer trying to make sense of the Holocaust. Either (a) God really hates the Jews (and there are plenty of Orthodox Jewish rabbis who have suggested that the Holocaust was punishment for the sins of the Jewish people); (b) God isn't all-powerful, or doesn't care to use His power to prevent horrific crimes against His people; or (c) the Holocaust had to be part of some broader Divine master plan that would ultimately redound to Jews' benefit. The fact that Hagee takes the latter position hardly makes him an intellectual giant, or speaks well of his moral imagination. But color me unoffended.

Related Posts (on one page):

  1. Hagee on Hagee:
  2. McCain Dumps Hagee Over Holocaust Remarks:
  3. Are Big Ideas Bad Ideas?

Future Legal Action Against the Texas Polygamists?

I should stress that many of the Texas FLDS members may still be in huge legal trouble, despite the conclusion that the raid was illegal (and likely unconstitutional) as to many of the children.

1. Rape / Statutory Rape Prosecutions: Most obviously, if indeed some girls (1) were physically forced into marriage or sex, or (2) had sex before age 17 with someone to whom they weren't legally married (whether there was no marriage ceremony or there was such a ceremony but it wasn't properly registered with the state for various reasons, such as the fact that it was an unlawful polygamous marriage), the people who had sex with them would be guilty of rape or statutory rape.

2. Prosecutions for Aiding and Abetting Rape / Statutory Rape: Criminal liability could also extend to those who sufficiently aided in the conduct, even if the aid consisted solely of encouraging the behavior (by which I mean encouraging the specific marriage, and not just teaching in the abstract that early marriage was good). This could include the girls' parents, religious leaders, or even friends and relatives who actively encouraged the conduct. The boundary between being a mere nonobjecting bystander (not criminal) and an active participant (criminal) is unfortunately sometimes quite vague. I suspect that celebrating the wedding with the couple or giving a wedding present wouldn't qualify as aiding and abetting, but even that's not completely obvious (see the English case Wilcox v. Jeffery, which some criminal law scholars see as being relevant to American law).

3. Bigamy (and Aiding and Abetting Bigamy): I suspect that the Texas bigamy statute -- which applies when a person "(A) purports to marry or does marry a person other than his spouse ... under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" -- wouldn't be interpreted as covering ceremonies that the parties understand not to be legal marriages. Clause A wouldn't apply, I think, if no marriage license were applied for, since without such a license the circumstances wouldn't constitute a legal marriage (Texas common-law marriage rules don't apply when one party is already married). Clause B is harder to figure out, but my guess is that this requires representation to others that one is legally married.

The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.

4. Regular Proceedings to Remove Children from Parental Custody: Naturally, if there is sufficient evidence of some past abuse of children, of imminent future abuse, or of parents' idly standing by when the children were abused by others, those children could be removed from parental custody, even in the absence of a criminal prosecution of the parents. It's just that this would have to be done through the normal procedures, at which specific evidence of abuse or likely future abuse of those children would have to be shown.


Are Big Ideas Bad Ideas?

Some conservatives argue that "big ideas" about politics are generally bad, and that conservatism should instead focus on protecting tradition and avoiding big ideas. Steve Bainbridge, the outstanding legal scholar and conservative blogger, provides a good example of this view:

I can’t think of anything more contrary to the spirit of Burkean conservatism than a seach for the “next big thing"....

Instead, it is the Libertarians and the progressives who are Big Idea people. Despite their obvious differences in philosophy, they share the absurd belief that if only their big idea(s) came to pass, society would inexorably progress towards some ideal.

In contrast, I stand with Buckley ("Don’t let ideologues try to create heaven on earth, because they’ll deprive us of freedom and make things a lot worse") and Bill Bonner ("Traditional American conservatism was not a doctrine of world improvement, but a mood of skepticism toward all “isms” and empire builders").

Why? Think about the Big Ideas of the 20th Century: Compassionate conservatism, Objectivism, Deconstructionism, Freudianism, Nazism, Conceptualism, Socialism, Syndicalism, Minimalism, Communism, Functionalism, Postmodernism, Dadism, Fundamentalism, Fascism. All of them turned out to be basically bad ideas.

Bainbridge is right that there have been many bad Big Ideas. Nonetheless, generalized conservative hostility to big ideas is misguided for two reasons:

First, it ignores the fact that there are many big ideas that have turned out to be extremely good ones (at least relative to the alternatives). Consider Liberty, Free Markets, Democracy, racial and gender Equality, Privacy, Charity, and many more. Without these big ideas and others like them, we wouldn't have many of the greatest achievements of Western civilization. Bad big ideas are best countered with good big ideas, not with a blanket rejection of big ideas as such. The most compelling responses to the biggest Bad Ideas of the last century - Communism and Nazism - were the good Big Ideas of Liberty, Free Markets, and Democracy. I doubt we could have persuaded many intelligent people to reject communism or Nazism merely because they are "Big Ideas."

Second, conservatism hostility to big ideas is internally contradictory. It is itself a Big Idea. Like advocates of other Big Ideas, conservatives who argue for rejection of "ideological" ideas do so because they think that acceptance of this general principle will make society better. Same with the "Burkean conservative" respect for tradition that we recently debated here at the VC, and which Bainbridge seems to endorse. You can't simultaneously reject "Big Ideas" and defend the big idea of broad deference to Tradition.

UPDATE: There is a possible ambiguity in Bainbridge's post. It's not entirely clear whether he thinks we should oppose all Big Ideas or merely new ones ("the next big thing"). I suspect the former, but the latter is also a plausible interpretation of his post. Even if his criticism is limited to new big ideas, it's still misguided in my view. All the great big ideas of the past were new at one time, including the ones I listed above. We should not exclude the possibility that further new big ideas might be beneficial as well. Each new big idea should be evaluated on its own merits, not peremptorily dismissed on the grounds that big ideas are likely to be bad.

UPDATE #2: In the comments, Steve Bainbridge clarifies his position to some extent:

If I can elaborate just briefly, my basic gripe with Big Ideas is that people with Big Ideas generally want to convert other people to their ideas. And that's usually a bad thing. As the Iraq war's taught us, trying to convert people to even good Big Ideas like democracy can sometimes work out quite badly.

Thanks to Steve Bainbridge for his clarification. I think his initial post did indeed make it seem as if he wanted to condemn all "big ideas" and not just the attempt to "export" them by force. However, I disagree at least partially with the narrower anti-export point as well. Many efforts to export democracy and other good big ideas by force have succeeded. Consider the cases of Germany, Italy, Japan, Grenada, Panama, and others - all of which are relatively successful liberal democracies today because the US and allies overthrew their previous governments by force. That doesn't mean that all such efforts are a good idea as a general rule, or that Iraq was a good idea in particular. It does mean that we shouldn't categorically reject them.


Lawsuits Against the Texas Department of Family and Protective Services?

Some commenters on the earlier post raised this issue, so I thought I'd speak briefly about it.

1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I've seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O'Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a "special needs" exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that's not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents' parental rights have almost certainly been violated.

Of course, before any damages award is given, there'd have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn't find any Fifth Circuit or Texas state precedent that's entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.

2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one's children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals' description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.

3. State law rights: I can't speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.


Antitrust lawsuit against OPEC:

On Tuesday, the U.S. House overwhelmingly passed a bill authorizing Sherman Act enforcement against OPEC. Among the proponents of the idea is The Heritage Foundation. A radio report which includes my take on the issue is available in MP3 and transcript. However, it's in Russian, for the Russian station of Radio Free Europe/Radio Liberty, and may be difficult for non-Russophones to follow.

My basic analysis is: OPEC's actions are plainly contrary to the Sherman Act. In Hartford Fire Insurance Co. v. California (1993), the Supreme Court ruled that the Sherman Act could be applied to the acts of foreign corporations committed in foreign countries, if the purpose and effect the foreign acts was in part aimed at the U.S., which OPEC's actions obviously are. So even without the explicit language in the House bill, the Sherman Act allows anti-OPEC lawsuits. (And, notably, the Sherman Act, as amended by the Clayton Act, is much friendlier to civil enforcement by private parties than are the antitrust laws of most other nations.) Accordingly, the real barrier to an anti-OPEC Sherman case is the Foreign Sovereign Immunity Act. Indeed, in 1978 the International Association of Machinists and Aerospace Workers brought a Sherman Act case against OPEC, only to lose the case on FSIA grounds. So the House bill creates an exception to FSIA for anti-OPEC suits.

Although I am in general an antitrust skeptic, my objections do not apply when governments are the monopolists.

Still, my view is that there are more important steps that the U.S. could take to reduce its dependence on OPEC, such as opening up ANWR, building more nuclear and clean coal plants (even though OPEC oil is a small part of US electricity production), importing more oil from Alberta, and allowing the current high prices of gasoline to encourage market solutions for less use of OPEC gasoline.


A Misconception About Slippery Slope Arguments:

Rick Hills roundly condemns slippery slope arguments:

The California Supreme Court's recent decision on gay marriage has predictably revived that old perennial favorite of arguments against substantive due process arguments for sexual privacy — the "slippery slope."

You know the drill: If courts strike down x law regulating sexual conduct, then it will be logically impossible to avoid striking down y, z, a, b, and c laws.... The obvious response to the "slippery slope" is the "conceptual ledge": There are lots of natural resting places for the mind, if one only bothers to look for some fine-grained moral/legal theory.... So why do patently unconvincing slippery slope arguments grow like black mold in a leaky attic every time a court makes a decision about sexuality? ...

It's true that arguments that it will be logically impossible to distinguish a future case from this case are usually very weak. Very few distinctions are logically impossible.

But slippery slope arguments endure partly because they are often cast, much more plausibly, as arguments that if X is done, it will become more likely that Y will be done — not that X and Y can't be treated differently, but that they won't be treated differently. These arguments aren't about logical consequences, but about psychological consequences (plus some other consequences). And as such they can't be rebutted simply by pointing out that a distinction could be drawn.

The other reason that slippery slope arguments endure is that slippery slopes do often seem visible. I say "seem" because it's often impossible to tell for sure whether X increased the likelihood of Y, or whether Y would have happened in any event. But sometimes there's good reason to think that slippage has happened, often despite the express insistence of backers of X that of course X won't help lead to Y.

I discuss this in detail in my Same-Sex Marriage and Slippery Slopes. I start by pointing to two examples:

  1. The slippage from contraceptive rights for married couples (Griswold) to contraceptive rights for unmarried couples (Eisenstadt) to abortion rights (Roe) to sexual autonomy rights (Lawrence), which happened despite the express assurance of some backers of the first step that it wouldn't lead to later steps.

  2. The reliance of the Massachusetts and California same-sex marriage decision and the Vermont same-sex civil union decision on the enactment of other gay-rights laws, which happened despite express assurances of some backers of the earlier steps that they wouldn't lead to the later step.

I also explain how some specific arguments for same-sex marriage, if accepted, can indeed weaken public, legislative, and judicial resistance to calls for polygamous marriage — for instance, "all people have a right to marry whomever they choose," "it’s none of my business whom someone else marries," "people who want to enter into same-sex marriages should have equal rights with those who want to enter into opposite-sex marriages," or "love should prevail over arbitrary legal restrictions" (see the article for citations).

This having been said, I conclude that it seems unlikely that accepting same-sex marriages will materially increase the chance that society will accept polygamous marriages. But that kind of decision has to be tied to a pretty careful analysis of the likely psychological and political processes that are likely to take place. It can't be based on a simple categorical refusal to consider slippery slope arguments whenever a logical distinction is available, or a simple categorical acceptance of slippery slope arguments whenever a similarity can be logically pointed to.


Roger Koppl Responds to Comments on His Column:

A few days ago I posted a link to Roger Koppl's column in Forbes. Roger has read the Comments you posted and has sent me this response:

Hi Todd,

I’ve been enjoying the comments on your post quoting my Forbes article. “JCCamp” warns against “ignoring the investigative assistance an in-house lab can provide for law enforcement.” You bet. Good principles will give you bad results if you don’t recognize the relatively intricate design problem involved. The example JCCamp raises is relatively easy to handle by clever task separation: The experts who do blind testing should be different from the “case manager” who has all case information and shields domain irrelevant information from the forensic scientists doing the tests. A group of us has worked out a template for doing that in DNA profiling. Our template will be published in the July Journal of Forensic Sciences as a letter to the editor (“Sequential Unmasking: A means of Minimizing Observer Effects in Forensic DNA Interpretation”). I would put J. F. Thomas’s concerns about chain-of-custody in the same category. It’s a huge issue, but it is not really that tricky to handle. My institute’s website addresses lots of these issues, especially on the research page.

My Forbes article doesn’t address sequencing. If you want a set of improvements that sticks, then you need to need to put them in place in the right order. An improvement may lose its effect over time if the affected parties learn compensating behaviors. A substantive right of defendants to forensic science expertise, however, would be self-sticking because the defense experts would work to maintain their place in the system. The simultaneous existence of defense and prosecution experts would apply pressure needed to make other changes stick.




Thomas Frank and Three Common Fallacies About Libertarianism:

Thomas Frank manages to pack three common fallacies about libertarianism into one short Wall Street Journal column. Two of them occur in this passage:

Here, in the very home of the taxing, regulating leviathan, the libertarian is such a commonplace and unremarkable bird that no one gives him a second glance. Here he is a factotum of the establishment, a tiny voice in a vast choir assembled by business and its tax-exempt front groups to sing the virtues of the entrepreneur.

And therein lies his dilemma. Almost by definition, our young libertarian's job is to celebrate the profit motive from the offices of a not-for-profit organization. He is subsidized, in other words, to hymn the unsubsidized way of life. Rugged individualism may be his creed, but a rugged individual he ain't.

Frank's first fallacy is the assumption that libertarianism is about the "celebration" of the "profit motive." In reality, libertarianism advocates the superiority of the private sector over government. Parts of that private sector are mainly driven by the profit motive, others are not (e.g. - families, many civil society organizations). There is nothing in libertarianism that is inconsistent with working in a "subsidized" organization so long as the subsidies don't come from the state. On the other hand, many government programs are themselves driven by the profit motive: for example, government subsidies for large agribusinesses; protectionism for powerful domestic economic interests, and so on. Libertarians have no problem denouncing these programs despite the fact that they arise from the profit-seeking of their beneficiaries.

The second fallacy is the assumption that libertarians defend the interests of "business." On some issues, that is indeed true. But it is not a general rule. There are many, many, businesses that lobby for and depend on government handouts of various sorts. Libertarians and libertarian organizations - including the "beltway libertarian" groups that Frank attacks in his piece - regularly criticize these businesses and the government programs that benefit them. Indeed, as I discussed in this post, libertarian groups have often had to distance themselves from business interests in order to be effective - precisely because the latter often have an interest in promoting big government.

Finally, Frank makes the common but wholly untenable claim that today's government policies are mostly market driven and that the market has somehow crowded out "public service" - thereby rendering libertarian advocacy unnecessary, or at least superfluous. This is simply false, given the reality that government spending at all levels is more than one third of GDP, that regulation is also at very high levels, and both have grown massively during the years of the Bush Administration.

Frank does indirectly hit on one ironic reality: if not for the existence of big government, there would be little need for libertarian organizations or "beltway libertarian" advocacy. But that is true of professional advocates of any cause. There would be far less need for them if the cause prevails. There would be little need for environmentalist organizations if pollution is largely eliminated, for anti-racist groups if racism declines to insignificance, and so on. Frank himself is most famous for advocating government policies to reduce income inequality. If income inequality ever is reduced to levels that liberals and radicals find acceptable, Frank would probably have to find another line of work.

The symbiotic relationship between libertarian advocacy and big government does create a risk that professional libertarians will pull their punches in criticizing the state so as to avoid killing the goose that lays their golden eggs. So far, however, I see little evidence of that happening. Indeed, Frank's concern seems to be that libertarians spend too much time criticizing government (which he claims is somehow inconsistent with their supposed support for the "profit motive"), not too little.

Related Posts (on one page):

  1. Thomas Frank and Three Common Fallacies About Libertarianism:
  2. Frank on Beltway Libertarianism:
  3. Does the Libertarian Party Matter?

Texas Appellate Court Rules Against State's Seizure of the FLDS Children:

From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services (emphasis and some paragraph breaks added):

Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. [Tex. Fam. Code. Ann. § 262.201.]

The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]

The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]

There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.

Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.

They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....


[Peter Spiro, guest-blogging, May 22, 2008 at 12:54pm] Trackbacks
Theories of American Identity (and Why They Are Wanting):

I see four theories of American identity, none of which seem sustainable in the face of the developments I have been describing in previous posts.

The New Nativism: The new nativists sing the praises of an ethnic America, that is, a white one. Their platform hardly concedes the value of admitting any outsiders as immigrants, much less as citizens, for foreigners are taken to represent (for the most part) the dilution of this putative historical purity.

There’s a lot of historical support for this position (see Rogers Smith’s Civic Ideals) and it fits with the logic of citizenship. Like an exclusive club, the greater the barriers to entry the more valuable the membership. Insofar as citizens in a particular polity do share ethnic, religious, and linguistic roots, the more significant the resulting status is likely to be.

But the future this isn’t. According to the 2000 census, almost 25 percent of the those resident define themselves as something other than white, and more than 15 percent speak something other than English as their first language. New nativism has few takers among either policymakers or intellectuals. New nativism just wouldn’t work in today’s world, short of installing a limited circle of artificially privileged insiders. One can’t actually stop the flow of immigrants; new nativism would permanently subordinate these newcomers. The new nativist agenda would lead to something not so different from ancient Athens, in which a small group of individuals comprised the blood aristocracy of citizens, the rest relegated to legally lesser status.

In the end, the new nativism is finding its place somewhere other than the state. Consider the anti-statism of white militias. It's only through a kind of separatism that their conception of America can be vindicated. The new nativists are becoming contemptuous of the very institution of national citizenship, as embodying a different America than the one they seek.

Conservative Nationalism: Unlike the new nativists, conservative nationalists are accepting of newcomers so long as those newcomers accept the old assimilationist premise of American immigration. Conservative nationalists do not shy from asserting exclusive allegiance to an “American way of life,” and take the “Americanization” movement of the early twentieth century as the model of incorporation. Conservative nationalists take as self-evident the continuing primacy not only of the nation-state as the primary institution of governance, but also of the United States as enjoying primacy among them. Unlike the nativists, however, they allow that the American ideal can be successfully adopted by immigrants regardless of race or previous nationality. (See here, here, and here for book-length elaborations.)

But conservative nationalism can't withstand the pressures of globalization. Take dual citizenship. Conservative nationalists hew to such old world comparisons of the status to polygamy and the impossibility of “serving two masters.” But they can't explain exactly dual citizenship poses concrete harms in today’s world (especially as more of their friends and relatives acquire additional nationalities). Beyond vague suggestions that the renunciation oath actually be enforced, conservative nationalists don’t have a recipe for how the U.S. can police dual citizenship.

Conservative nationalists preach a thick assimilationism, one that welcomes newcomers but only insofar as they conform to putative American traditions. But conformity is so little a part of American society today, at least in any distinctively American way, as I explained in an earlier post. It is thus improbable that American citizenship will be revived on conservative nationalist terms; the clock can't be turned back.

Multiculturalism: Multiculturalism elevates diversity over unity, with “the politics of difference” as rallying call. In multiculturalism some forms of group membership qualify as identities, and some of these identities are said to entitle group members to differentiated treatment. That is, membership in some groups affords a legal status different from that held by non-members.

But as much as it centers groups, multiculturalism has been very much oriented to the state. Multiculturalism focuses on what group membership will get you by virtue of your national membership, what the nation owes the group. Like affirmative action.

In other words, multiculturalism depends on the existence of national community. But the perspective offers no rationale for the national community, nor can it survive its dissipation. Multiculturalism reifies the state, leaving its existence unexamined. It undermines the possibility of national community insofar as it locates primary identity somewhere other than the state and offers no substitute basis for its persistence, no commonality by which to bind its members.

Liberal nationalism: The liberal nationalists retreat to a more defensible perimeter, with a thin and inclusive articulation of American nationality centered in political values. This sets the liberal and conservative nationalists apart – where the conservatives would assert thick cultural parameters to American nationality, liberals would pose few if any. As Michael Walzer puts it, “If the manyness of America is cultural, its oneness is political.”

Liberal nationalists look to take the best qualities of the nation-state as a form of human association and put them to work in the advancement of liberal ideals. Liberal nationalists, as Bonnie Honig notes in Democracy and the Foreigner, “read democratic theory according to the genre conventions of a popular or modern roman, as a happy-ending love story.”

But liberal nationalism cannot reconcile its tenet of inclusiveness with the inherent exclusiveness of citizenship regimes. VC commenters may have an easy time deriding the inclusion of the democracy-affirming individual in Bangalore (intended as a thought experiment only!), but liberal nationalists have a harder time explaining his exclusion.

Nor can the pluralist strand of liberal nationalism process the new transnationalism of civil society. A core tenet of the pluralist ethic is that non-state memberships will be subordinated to membership in the state, which as an umbrella organization supplies the social glue. As Walzer observes, "A citizen, we might say, is a [person] whose largest or most inclusive group is the state."

But it doesn't work in a world of genuinely transnational affiliations. Many Americans now belong to organizations that are not exclusively or even primarily American in composition. Take an American who is also a member of the Catholic Church, the World Wildlife Fund, does volunteer work for Oxfam, is an executive at Toyota and a woman. For good measure, one might throw in an additional nationality, so that the individual is also a citizen of, say, Italy. That is not an exceptional profile, as parts of which the transnational elements are significant. Can we say of this person that her "largest and most inclusive group" remains America?

Yes, the United States remains the most inclusive of these groups in the sense that it will include anti-environmentalists and those for whom relief work is not important, members of other religions, employees of other companies, and men. But that is totally circular – these other groups are all more inclusive than the United States insofar as they are not limited to U.S. citizens. In other words, America is no longer the most inclusive group that many Americans belong to, or at least it is no more inclusive than many others groups of which we are members.

That brings citizenship down off its normative pedestal. In my final post tomorrow, I'll take up the "beyond" in Beyond Citizenship. What to do in the face of diminished identification with the state?


Frank on Beltway Libertarianism:

The Wall Street Journal editorial page has revived its long-dormant tradition of having a "house liberal" grace the page with a weekly editorial. Filling this role, once played by Al Hunt, is Thomas Frank, author of What's the Matter with Kansas? and other books. His column, which appears on Wednesdays, is called "Fighting Words."

Frank's inaugural column took on "The Tragic Irony of Beltway Libertarianism." As a former "Beltway libertarian" myself, I found the column quite interesting, even if it eventually veers off course. It begins:

Consider the poor Washington libertarian. Everywhere else in America his type is an exotic species, a coffee-shop heretic who quotes from "Atlas Shrugged" and steers every conversation toward Ron Paul or gold. Take him or leave him, he doesn't care. He is his own master.

Not so the Beltway variety. Here, in the very home of the taxing, regulating leviathan, the libertarian is such a commonplace and unremarkable bird that no one gives him a second glance. Here he is a factotum of the establishment, a tiny voice in a vast choir assembled by business and its tax-exempt front groups to sing the virtues of the entrepreneur.

And therein lies his dilemma. Almost by definition, our young libertarian's job is to celebrate the profit motive from the offices of a not-for-profit organization. He is subsidized, in other words, to hymn the unsubsidized way of life. Rugged individualism may be his creed, but a rugged individual he ain't.

Frank's bottom line is that idealistic free market advocates don't "sell out" their principles when they leave think tanks or other non-profit policy work for high-paying corporate gigs, because Frank believes this is the underlying logic of hte market itself.
Selling out is not a threat to the market order; selling out is how the market gets its way. Just look at the city in which all these remarks were made. Private-sector Washington is one of the wealthiest places in America. Public-service Washington lags considerably behind. The chance of ditching the one for the other is what accounts for everything from the power of K Street to the infamous "revolving door," by which a public servant takes a cushy corporate job after engineering some extravagant government favor for the corporation in question – or its clients.

The libertarian nonprofits that line the city's streets often serve merely to rationalize this operation after the fact, giving a pious shine to the policies that are made in this unholy manner.

What Frank seems to overlook, however, is that "private-sector Washington" is only so wealthy because of the public sector. Washington, D.C. is a company town -- and the hometown company is immune to recession. And as the government grows, so does the economic value of influencing government decisions. Were Beltway Libertarians to get their way, lobbyists and political consultants would not be worth so much. In such a world, Washington would be quite a sleepy place, and "selling out" would involve finding a productive, wealth-creating job out in the "real world," not signing up with a Beltway bandit or other hired gun.


Blog of Rights:

The ACLU has a new blog, Blog of Rights. It currently features a symposium on "Torture and America."


Sexual orientation and heightened scrutiny in the California marriage decision:

While the politics are complicated and uncertain five months out, a thrilling but narrow win for gay marriage in the California Supreme Court last week could become a narrow and heartbreaking loss at the polls in November. But the court’s equal protection holding will outlast a state constitutional amendment banning gay marriage and will have potential to challenge anti-gay discrimination well beyond the issue of marriage. If gay marriage loses in California in November, the equal-protection holding will be the lasting legacy of the opinion.

For the first time in the nation’s history, an appeals court of last resort has held that discrimination on the basis of sexual orientation, like discrimination based on race, should be subjected to strict judicial scrutiny under equal protection principles. Under this scrutiny, the discrimination is almost always unconstitutional, requiring the government to show that its classification is necessarily related (or narrowly tailored) to a compelling interest. While this part of the California Supreme Court holding may have little practical effect in a state like California, where it seems almost all public and much private discrimination has already been eliminated by the state legislature, the court’s reasoning may influence other courts at the state and federal levels that have been very reluctant to go down this road.

For decades, legal scholars have been urging courts to treat sexual-orientation discrimination as suspect under equal-protection principles. In fact, it’s difficult to find law review articles that offer extended analysis of why such discrimination should not be subject to some heightened scrutiny. (Whether some anti-gay discrimination could be subject to strict or intermediate scrutiny because it impinges on a fundamental right guaranteed by the due process clause, as the Ninth Circuit held yesterday in a case involving “Don’t Ask, Don’t Tell,” is a different doctrinal question.)

Despite the academic consensus, and aside from some notable exceptions, like a vacated Ninth Circuit opinion more than a decade ago and a dissent from denial of certiorari by Justice Brennan in a case from the mid-1980s, federal and state judges have uniformly rejected heightened scrutiny for sexual orientation discrimination under equal protection principles. They have offered various reasons for this, discussed more below, but the unarticulated fear may be that strict scrutiny would call into question lots of state and federal laws that discriminate against gays. Courts overturning anti-gay discrimination have found other ways to do so by, for example, saying that sodomy laws violate substantive due process (e.g., Lawrence v. Texas) or by holding that some forms of anti-gay discrimination are simply irrational because based on “animus” (e.g., Romer v. Evans). Even courts finding constitutional protection for gay marriage or civil unions have avoided heightened scrutiny (e.g., the high courts in New Jersey, Vermont, and Massachusetts)

The California court’s discussion of heightened scrutiny is at pp. 93-100 of the opinion. It will be required reading in courses on sexual-orientation law.

I. Is the limitation of marriage to one man and one woman "sexual orientation" discrimination?

The first step in the argument is to show that limiting marriage to one man and one woman is a form of sexual-orientation discrimination. Some opponents have argued that this is not sexual-orientation discrimination because such laws do not forbid “homosexuals” from marrying. Homosexuals can marry persons of the opposite sex. At most, they say, prohibiting same-sex marriages has a disparate impact on gays and thus does not constitute objectionable discrimination unless the purpose of the law is to discriminate against gays.

But this argument elevates form over substance, understating the special way in which foreclosing marriage to another person based on the sex of that other person (whether same- or opposite-sex) strikes at an individual's sexual orientation. It’s akin to saying that a ban on the wearing of yarmulkes isn’t anti-Jewish discrimination because Jews and non-Jews alike are forbidden to wear them.

The argument probably has some traction among a few gay-rights opponents who doubt there really is such a thing as homosexual orientation and thus imagine that requiring gay persons to marry members of the opposite sex is no big imposition on them. But I think even most opponents of gay marriage would recognize that there is sexual orientation discrimination, albeit justified discrimination, in forbidding a gay person to marry another person of the same sex. The court quickly dispensed with the argument: “In our view, it is sophistic to suggest that this conclusion [that limiting marriage to one man and one woman is sexual orientation discrimination] is avoidable by reason of the circumstance that the marriage statutes permit a gay man or a lesbian to marry someone of the opposite sex, because making such a choice would require the negation of the person’s sexual orientation.” Op. at 94. Unlike race, sexual orientation is closely linked to a behavior, in this case the intimate relationships that a person forms with others, just as the behavior of yarmulke-wearing is closely linked to Jewish identity for many observant Jews.

This is not to say that marriage as it exists in most places today is just another form of bigotry, like separate water fountains for blacks and whites in the pre-civil-rights era. That would be a reductionist and just dumb way to describe marriage. Marriage has many noble purposes and effects, quite aside from the way in which it excludes one or another group of people. An institution like marriage or the military can be important and indeed essential to a society and at the same time operate in discrete ways that invidiously discriminate. The California Supreme Court did not say that marriage as a whole is bigotry, as some critics of the decision have charged; it said that one limitation in the state's marriage law could not be justified.

II. Should sexual-orientation discrimination be subjected to heightened judicial scrutiny?

The more important and far more controversial step in the court’s equal-protection holding is the second one, applying strict scrutiny to sexual-orientation discrimination. As a matter of federal constitutional law, which often influences state constitutional law in this area, the U.S. Supreme Court has never explicitly required any particular test for suspect-class status. It has only suggested some relevant considerations in a few scattered opinions.

In last week’s marriage case, the California Supreme Court reviewed four factors most often considered in deciding that discrimination aimed at a class of persons is constitutionally suspect and thus places a heavy burden of persuasion on the government to justify it. They are:

(1) Whether the characteristic has subjected the group to a history of social and legal discrimination;

(2) Whether the characteristic of the group is generally related to the person’s ability to perform or contribute to society;

(3) Whether the characteristic of the group is immutable; and

(4) Whether the group is so politically weak that it needs the protection of courts from overweening legislative majorities.

The California Attorney General did not contest the first three factors.

The first two factors are uncontroversially met; indeed, I can think of no court that has rejected suspect-class designation for gays on the ground that these conditions were absent. The U.S. Supreme Court once used the second factor – ability to perform – as a reason to deny suspect-class status to the mentally retarded. No such performance limitation is present for gays. And there is no doubt that there has been long history of social stigma and legal discrimination against homosexuals.

The third factor has long been a sticking point, with courts usually concluding that there is insufficient scientific proof that homosexual orientation is immutable. The California Supreme Court sidestepped the scientific dispute about sexual orientation by noting that strict immutability is not invariably required for suspect-class status. First, discrimination based on religion is subject to strict scrutiny under equal protection principles, even though people freely change religious views and affiliations. Similarly, alienage is often treated under federal constitutional law as a suspect classification even though a foreigner can become a citizen. Id. at 97-98. Second, immutability does not mean absolute immutability; it includes any characteristic that is “an integral aspect of one’s identity.” Sexual orientation is “either unchangeable or changeable only at unacceptable personal costs.’” Id. at 98. Asking a gay person to change his sexual orientation to avoid discrimination would be like asking a heterosexual to become a homosexual to avoid that cost. Perhaps it could be done, perhaps not, but even the effort would come at a very high personal cost.

The fourth factor – whether the group is so politically powerless that it needs special judicial protection – was the only one contested by the California AG, who pointed to the many ways in which the state legislature has protected gays from public and private discrimination. The state’s broad domestic partnership law and the legislature’s passage of a gay-marriage law themselves are examples of gays’ ability to score successes and gain allies in the state’s political process. Leaving aside the observation that gays are still subject to much homophobia even in otherwise friendly states like California, despite the existence of some anti-discrimination protection, why do they need the special protection of courts?

The court answered this very good question by saying that suspect-class status obviously can’t be limited to groups that currently lack political power. Otherwise, there would be no heightened scrutiny for classifications based on race, sex, or religion. These classifications are no longer acceptable in the political process and much has been done to advance the interests of blacks, women, and religious minorities. According to the California Supreme Court, the only things that matter are whether the group has historically been subject to invidious discrimination and whether society now recognizes the group’s trait is unrelated to merit.

Purely as a way to read the state of current equal-protection doctrine, the court’s conclusion seems right. The U.S. Supreme Court is not about to end heightened scrutiny for race- and sex-based classifications just because blacks and women are no longer subject to state-sponsored discrimination.

Justice Baxter’s dissent agrees that special judicial scrutiny for race and sex classifications should not be eliminated. So why deny gays alone special judicial protection on the grounds that they’ve made considerable political progress? Justice Baxter answers this by arguing that it’s one thing to extend such protection when a group actually needs it but then with draw it when they longer do, but quite another to extend such protection as a matter of first impression at a time when they do not need it. Baxter dissent at pp. 24-25.

But there’s a problem with Baxter’s response. Is he saying that he would have voted for heightened scrutiny of sexual orientation discrimination in 1970, when gays really, really needed it but when it would have been unthinkable to give them special judicial protection? Is he, at the same time, saying that if a claim for heightened scrutiny for race were to come before the court as a matter of first impression now he would reject it because racism is currently disfavored in the legislature? Both of these conclusions seem very unlikely, but they are an implication of his logic. So the California Supreme Court’s conclusion that current widespread discrimination against a group is not invariably required for heightened scrutiny seems justified under equal-protection doctrine.

But what this conclusion effectively means is that the fourth factor has been collapsed into the first and second factors. If a group can fend for itself tolerably well in the political process because society now sees the trait as irrelevant to merit, why not wait as the political process continues to purge itself of any lingering discrimination? That is what California was doing on the question of marriage itself, with the legislature having twice passed gay-marriage bills. The next governor might well have signed such a law, which (as we now know from the court’s decision) would then have had to go to the voters for approval.

The truth is that the “political powerlessness” prong of equal-protection doctrine is more decorative than substantive. It has never had much independent force. As William Eskridge has argued, heightened judicial scrutiny of a classification usually comes only after the suspect class has organized itself as a political and judicial force and after its equality claims have gained a measure of social acceptance. That was true of the civil rights movements for blacks and women; judicial victories often followed political and social successes for the struggles of these groups. After these successes, judges stepped in tentatively, at first, to hasten further progress and finally to eliminate the remaining vestiges of discrimination.

So courts have usually been far more cautious about protecting minority rights than those who continually complain about judicial “activism” and “tyranny” suppose. There’s a good reason we won’t see heightened protection for gays in the state court systems in places like Mississippi or Texas, where there’s truly a practical current need for it. Courts, and especially elected courts, wait until it’s safe to be brave.

Something like that is what happened in California, and may happen elsewhere in the nation in the coming decades. Long before the California Supreme Court issued its bold opinion last Thursday, gay Californians organized themselves into a political movement, got openly gay officials elected, rid the state of sodomy laws, passed civil-rights protections, worked tirelessly but incrementally for recognition of their relationships, and pressed for judicial solicitude. The judicial declaration they got last week that discrimination against them is no longer tolerable was not the beginning of something new so much as it was the recognition of something already achieved.

Related Posts (on one page):

  1. Sexual orientation and heightened scrutiny in the California marriage decision:
  2. Secondary sources in the California marriage decision:
  3. The (limited?) potential of the California marriage decision:

The Impact of the Currency Decision:

The NYT reports on the reaction among the blind and visually impaired to the D.C. Circuit's ruling that the Treasury Department's failure to accommodate the visually impaired violates the Rehabilitation Act.

About 16.5 million Americans are blind or partly blind, a number that is expected to double by 2030 because of an aging population and the prevalence of diabetes, said Tara A. Cortes, president of Lighthouse International, a nonprofit organization based in New York that addresses the problems caused by loss of vision. . . .

James A. Kutsch, the president of the Seeing Eye Inc. of Morristown, N.J., a nonprofit guide dog school, said the court decision would mean greater independence for people with vision loss.

“Currently, identifying money requires either the assistance of another person or use of technology,” he said, referring to portable or computer-based scanners that read aloud the denominations of paper money but can cost more than $250.

“Both have limitations,” Mr. Kutsch said. “Not everyone’s a techie — not everyone wants to use or can afford to use this technology. And with the low-tech option of asking someone else, you have to rely on the integrity of the person you ask, and the availability.” . . .

We hope that this ruling will not have the unintended consequence of reinforcing society’s misconception that blind people are unable to function in the world as it currently is,” Marc Maurer, president of the National Federation of the Blind, said in a statement.

“If America really wants to improve opportunities for education and employment of the blind, then it should focus on providing Braille instruction to the 90 percent of blind children who are not getting it, effective training for the 70 percent of blind adults who are unemployed,” and Congressional cuts affecting the Library of Congress’s Talking Books program.

Melanie Brunson, the executive director of the American Council of the Blind, which brought the lawsuit in 2002, said new paper currency could help address the unemployment rate among the blind, opening up many entry-level jobs in fast food or retail.

She said adding tactile features to bills, as Canada has done, could be a good solution.

“We’ve seen some fairly old Canadian bills, and the dots hold up pretty well as far as I know,” she said. And because many vending machines take only $1 bills, not all machines would have to be refitted, especially if the $1 bill was left in its current form, she said.


Does the Libertarian Party Matter?

Bruce Bartlett ponders the political impact of the Libertarian Party and its relevance to advancing libertarian ideas in this WSJ op-ed.

Libertarians respond that their message of an immediate end to the Iraq war, legalization of drugs, and opposition to the Bush administration's undermining of civil liberties appeals as much to Democrats as their advocacy of free-market economics appeals to Republicans.

Nevertheless, Republicans view Libertarian votes as coming out of their total. They have, for example, blamed U.S. Senate losses in Nevada in 1998, Washington in 2000, and Montana in 2006 on LP candidates.

Whoever gains the LP nomination can expect strenuous attacks from the GOP, and such attacks are already surfacing on conservative Web sites. But it is not clear that a strong Libertarian candidate necessarily hurts the Republican Party as a whole. . . .

To the extent that the Libertarian Party candidate gives [disillusioned Republican] voters someone to vote for at the top of the ticket, they may still vote Republican for Congress and other offices. Thus while a strong LP candidate may hurt Mr. McCain, he may nevertheless aid Republicans in getting sympathetic voters to the polls who would otherwise not vote at all.

Although this may turn out to be a banner year for the Libertarian Party, the LP is not a real alternative to the Republicans and Democrats. Because of the Electoral College, restrictions on ballot access and onerous campaign finance laws, third parties simply aren't viable for actually electing candidates. Nor do they pull the major parties toward their position: Ron Paul's success did not encourage other Republican presidential candidates to even pay lip service to his ideas.

I believe that libertarian ideas would be better promoted by an interest group such as the National Rifle Association than through the Libertarian Party. Such a group could use the limited resources available for libertarian ideas far more effectively by establishing a political action committee, lobbying and advertising than by a political party running futile campaigns for public office.

It's an interesting argument, certainly helped by the fact that it is hard to take the folks running for the LP nomination (Mike Gravel, Bob Barr, etc.) all that seriously.


"Every X Shall Have" = "Only X's Shall Have"?

A New Hampshire Supreme Court advisory opinion (handed down Monday) offers a fascinating case study in interpretation of legal texts. The New Hampshire Constitution provides,

All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election.

The New Hampshire House of Representatives adopted a provision letting 17-year-olds vote in a primary if they'll be 18 by the time of the general election; it then asked the Supreme Court's opinion about whether this is constitutional. (Such advisory opinions are issued by many state supreme courts, though not by the federal courts.)

Unconstitutional, says the state supreme court: The state constitution "establishes the minimum voting age as eighteen years of age," and "the legislature has no authority to set a different minimum voting age." But, I ask, where is the minimum voting age here? The state constitution says that "every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election," but it doesn't say that only 18+-year-olds have such a right. It thus seems to me set forth a constitutional floor for who may qualify, but not a constitutional ceiling.

Maybe I'm mistaken on this; I can imagine that in some situations an "every X shall have" sentence implicitly means that "only X's shall have." But I don't see why this would be so here, whether based on the text, the context, or the constitutional history that the opinion recites. At least I would have expected the court to explain why "every" means "only," and I didn't see it doing so. Am I missing something here?

UPDATE: Commenter NH Atty points to an item that may support the court's decision -- I saw it when I first read the opinion, but perhaps I didn't give it enough credit: "The ballot question regarding age at voting submitted to the citizenry in 1976 reflected the convention’s intent that the amendments to Part I, Article 11 and Part II, Article 28 lower the minimum voting age to eighteen. Question eight inquired, in pertinent part: 'Are you in favor of amending the Constitution to make the following changes relating to elections: (a) to reduce the minimum age of voters to eighteen.'" This might be the "constitutional history" evidence I was looking for in the preceding paragraph.

The trouble is that the constitutional text doesn't say "minimum age"; rather, it says that every 18-year-old shall be able to vote. So the question, which I wish the court had discussed, is to what extent the ballot materials offered the voters should trump the literal meaning of the text. But I do think that I didn't give the court enough credit for supporting its argument, given that the ballot materials do indeed support the "Every X" = "Only X" interpretation.


Henry Manne Comments on Josh Wright:

Henry Manne has put up a lengthy comment on Josh Wright's series of posts on law & economics at Truth on the Market. Well worth reading.


Why Do Conservatives Care So Much About the Courts?: The Rasmussen Reports survey of public attitudes towards the courts demonstrates just how much Republican voters care about the Supreme Court:
When it comes to how they will vote in November, Republican voters say that the type of Supreme Court Justices a candidate would appoint is more important than the War in Iraq. The latest Rasmussen Reports national telephone survey found that 44% of Republicans pick the economy as the top voting issue, 30% name judicial appointments, and just 19% pick the War in Iraq. . . . Just 7% of Democrats name judicial appointments as the most important of those issues.
  The fact that Republican voters care a lot about the courts isn't exactly news. The question is, why is that true? Why are conservatives so focused on — so obsessed with — the courts?

  Let me paint with a very broad brush and offer my best explanation. The primary reason, I think, is the nature of the Supreme Court's docket in the last fifty years. During that period, most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. For conservatives — especially social conservatives, and especially religious conservatives — the question has been whether the courts will allow their views, not whether the courts will mandate them.

  Think about abortion, school prayer, gay rights, flag burning, the death penalty — you know, the real 'hot button' issues. In each of these areas, a victory for the conservative side means that the political process is left unaltered. On the other hand, a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds.

  That's generally the opposite of the experience for those on the liberal side of the political spectrum over the last few decades. For liberals, the key question usually has been whether the courts will mandate their views, not whether the courts will allow them. On most of the hot button issues, a victory for the liberal side means that liberals are saved the trouble of going through the political process. A loss doesn't mean their view is not permitted, only that the issue is dealt with in the elected branches like most other issues.

  I think this trend helps explain why conservatives today are much more focused on the courts than are liberals. Being told that the courts won't let your views be law is a lot more painful and upsetting than being told the courts alone won't win it for you. It's partly loss aversion, I suspect, and partly the fact that constitutional decisions are much harder to reverse than legislative ones. Whatever the precise reasons, the cumulative experience of this happening year after year, Term after Term, starts to really hurt. It becomes a sore point, a raw wound. I think that goes a long way towards explaining why conservatives care significantly more about the courts.

  If you're unconvinced, consider some of the relatively uncommon hot-button cases when the usual valence is reversed. That is, consider a case asking the Court to ban a practice generally favored on the left. The obvious example: Race-based affirmative action. On the road to Gratz and Grutter, supporters of affirmative action weren't unconcerned or ignorant about the Supreme Court's involvement in the issue. Hundreds of thousands of affirmative action supporters were passionate and outspoken — they cared, and they protested, and they thought it was incredibly important. It was a really really big deal.

  That's just the kind of reaction you would expect when people feel that the Supreme Court might take away their right to set their own rules. And it's a dynamic that in recent decades has been felt significantly more often on the right than on the left.

Abolish the Bluebook:

I recently received the following form e-mail from the editors of the Bluebook - the massive tome that is the standard citation system for most law reviews and other legal publications:

The editors of The Bluebook: A Uniform System of Citation are about to embark on the exciting task of making revisions for the forthcoming Nineteenth Edition, and we need your help! We rely on user input to revise The Bluebook and our Survey is an opportunity for you to share your ideas with us as we update The Bluebook in a way that works best for you....

Comments and suggestions are also welcome...

I am grateful to the editors for soliciting my advice. And, as a matter of fact, I do have a suggestion that I hope they will consider: Abolish the Bluebook completely, and replace it with a much simpler citation system, such as the University of Chicago's Maroon Book. It may indeed be an "exciting task" to revise the Bluebook yet again. But I for one would be much more excited to be freed from Bluebook drudgery permanently; so would a great many law students.

I first suggested the abolition of the Bluebook ten years ago, when I was a student at Yale Law School (one of the schools whose law review publishes the Bluebook). Judge Richard Posner, perhaps the most distinguished living legal scholar, proposed the same idea years before, in a 1986 essay. They didn't listen to either of us back then and I'm not holding my breath now. However, I outlined the arguments for abolishing the Bluebook monstrosity in a May 2006 VC, and I hope that the current editors of the Bluebook will at least consider them. Here's a link to the 2006 post. I stand by every word.

Indeed, since 2006 I have become a co-editor of the Supreme Court Economic Review, a faculty-edited journal that uses the Maroon Book (as a result of a decision that predates my tenure as editor). I see no evidence that either the SCER or other scholarly journals that use simplified citation systems suffer in quality as a result. On the other hand, there is a great deal of evidence that Bluebooking wastes an enormous amount of time and effort that could be better spent on other tasks, including ones that might be even more "exciting" than preparing the 19th edition of the Bluebook.

UPDATE: Back in 2006, I also wrote a post on why the Bluebook is unlikely to be abolished or radically reformed, in spite of its manifest wastefulness. I hope that the current editors of the Bluebook prove that post wrong. But, on this issue too, I'm not holding my breath.

UPDATE #2: Daniel Solove, the prominent George Washington University legal scholar, pointed out some serious flaws in the Bluebook in this 2007 post. His general take on the Bluebook is perhaps even harsher than mine:

Most of the time, I've been extremely pleased with the editing I've received on articles. There are, however, some practices that law review editors routinely do that are incredibly silly and annoying. They bother nearly every professor I talk to. And yet they persist. One of the reasons is the Bluebook. The Bluebook is a thick book with a blue cover filled with more rules than the Internal Revenue Code. It is written by a consortium of law reviews and its primary purpose is as a money-making racket.


Fascinating Public Opinion Poll on Judges, the Law, and Trust in Legal Institutions: From the Rasmussen Reports. There are lot of really interesting tidbits in there, but here's just a taste:
Sixty-one percent (61%) say they trust voters more than judges or elected officials to decide important decisions facing the country. That figure includes 66% of unaffiliated voters, 64% of Republicans, and 54% of Democrats. Overall, 16% say they trusted elected officials to make those decisions while 11% trust judges the most.
Although it's not noted in the poll, I believe 99% of law professors are a part of that 11%. (I kid -- sort of.) Hat tip: Quin at ConfirmThem.

Wednesday, May 21, 2008

Another Example of a Court Ignoring the 2000 Amendments to the Federal Rules of Evidence:

I've blogged before about various federal courts ignoring the language of the 2000 amendments to Federal Rule of Evidence 702, dealing with expert testimony, and instead relying on pre-2000 circuit precedents that conflict with that language.

I just came across an example of the same phenomenon with regard to Rule 701, dealing with lay opinion testimony. Rule 701 was also amended in 2000, to clarify that there is no overlap between lay opinion and expert opinion testimony; for testimony to be within the scope of Rule 701, it must be "rationally based on the perception of the witness" and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." This was meant to close a loophole in which some courts were allowing parties to avoid the strictures of Rule 702 by deeming opinion testimony based on specialized knowledge to be lay testimony subject to the more lenient guidelines of Rule 701.

Yet last year, the Third Circuit wrote in Eichorn v. AT&T Corp., 484 F.3d 644, "Although this court has recognized that lay opinion as to technical matters may sometimes be appropriate, Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1200-01 (3d Cir.1995), we have cautioned that 'Rule 701 requires that a lay opinion witness have a reasonable basis grounded either in experience or specialized knowledge for arriving at the opinion that he or she expresses.'.. .Id."

It should be obvious from the language of Rule 701 that opinions on technical matters grounded in specialized knowledge are now considered expert and not lay testimony, and that this language from Asplundh is no longer good law. (Fortunately, it didn't make a difference to the outcome of this particular case.) Yet it seems that with regard to Rule 701, like Rule 702, judges are relying on prior precedents without noting that those precedents have been rendered moot by the 2000 amendments. It's tempting to lay the blame on the judges' clerks who draft the opinions, but the buck stops with the ladies and gentlemen who wear the black robes.

For other dubious applications of Rule 701, see United States v. Maher (1st Cir. 2006) (approving under Rule 701 testimony by a police officer based on his training and experience that a post-it note found in the defendant's van contained a list of customers' orders; was a "[d]rug distributors' way of being organized"; and that the number four written next to an individual's name referred to "[f]our ounces of cocaine.") [besides the 701 issue, the post-it note testimony is absurd on its face]; Brown v. Ryan's Family Steak Houses, Inc., 113 Fed. Appx. 512, 2004 WL 2423688 (4th Cir. 2004) (allowing a physician to testify as a lay witness under Rule 701 that his patient lacked the requisite mental capacity to enter into a binding contract due to brain atrophy and subclavian steal syndrome); United States v. Henderson, 409 F.3d 1294, 1300 (11th Cir. 2005), (suggesting that a physician's diagnosis of a hairline fracture of the jaw would be "permissible lay testimony"); Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003) (permitting the introduction as lay opinion testimony offered by a ship repairer's employees as to whether charges were fair and reasonable or in line with similar services provided by similar operations). Other examples from readers are welcome.


I Don't Have My Copy of Justice Scalia's new book on legal writing with me right now, but isn't it likely that this Associated Press story is missing a very important "not"? That is, isn't it likely that Justice Scalia actually said not to use words that would make people look at you funny at a cocktail party, rather than to use those words? Talk about being misunderstood by the MSM.

California Proposition 98 and Rent Control II - Why Bundling Rent Control and Eminent Domain Reform Was a Political Mistake:

In my last post on California Proposition 98, I explained why its phaseout of rent control would have only a modest impact - one that is likely to be positive. In this one, I will suggest that the inclusion of rent control in an initiative primarily focused on protecting property rights against eminent domain was nonetheless a serious tactical error. By greatly reducing the chance that Prop 98 will pass, making property rights advocates seem dishonest, and closing off possible alliances with groups on the left, the "bundling" of rent control and eminent domain issues has done more harm than good - even from the standpoint of those who favor the abolition of rent control (as I do).

I. Including Rent Control Reduces the Chance of Passage.

Proposition 98's sponsors were not totally wrong to hope that their initiative might pass even with the rent control provision included. Back in 1995, Massachusetts voters abolished rent control in a stand-alone referendum; as MIT economist Henry O. Pollakowski showed in this study, the Massachusetts referendum predictably led to an expansion in the quantity and quality of housing available in Massachusetts cities that had previously been subject to rent control. If that could happen in one of the country's most liberal states, the Prop 98 forces could reasonably hope that it could also happen in California as part of an initiative bundling rent control with the vastly more popular issue of restricting eminent domain authority.

Nonetheless, given the popularity of rent control, including it in the initiative at least significantly reduced the chances that Prop 98 would pass. Experience with eminent domain referenda in 2006 shows that they pass by overwhelming margins if limited to banning government efforts to condemn property for "economic development" and other similar purposes (as occurred in Kelo v. City of New London). All nine "clean" anti-Kelo referenda on the ballot in 2006 passed easily. By contrast, two of the three referenda that tried to bundle anti-Kelo laws with more controversial restrictions on "regulatory takings" were defeated. Significantly, one of thes failed initiatives was California's Proposition 90, which was defeated by a narrow 52-48 margin. I summarized this data in a November 2006 post, where I concluded that "[t]ying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake." Bundling the anti-Kelo cause with an anti-rent control initiative is risky for similar reasons.

II. The Disastrous Interaction with Proposition 99.

Even so, it is possible that Prop 98, as written, could have succeeded if it were the only eminent domain initiative on the ballot. Rent control has fewer avid supporters than the many different regulatory programs potentially affected by Proposition 90.

Be that as it may, the situation changed radically once Proposition 99 - the rival intiative sponsored by pro-condemnation forces - entered the picture. Prop 99 greatly increased the difficulty of passing Prop 98 in two ways. First, as I have documented in my LA Times op ed, it would invalidate Prop 98 even if the latter also passes - so long as 99 gets the greater number of votes of the two. This means that Prop 98 can't be enacted unless it not only gets a majority, but more votes than Prop 99. Most voters are unlikely to realize the technical legal connection between the two ballot measures and are likely to support Prop 99 simply because it seems like a measure that will genuinely protect property rights against takings (even, though, as I explained in the LA Times piece, it won't actually do so).

Second, Prop 99 gives voters an apparent way to protect property rights without also taking on the rent control issue. Nonexpert voters are unlikely to realize that Prop 99 is deliberately structured to avoid giving property rights any real protection. This too increases the odds against Prop 98, and may be enough to cause its outright defeat.

The Proposition 99 ploy is so cleverly designed that it might have doomed Proposition 98 even if the latter didn't include a phaseout of rent control. With rent control included, failure becomes almost certain. Proposition 99 has been in the works for a long time. I first blogged about it more than a year ago. It was a mistake for Prop 98 advocates not to take it more seriously from the start.

III. The Dangers of Appearing Deceptive and Undermining Potential Alliances with the Left.

The inclusion of rent control in Prop 98 is also politically damaging for two other reasons. First, it exposes property rights supporters to charges of lying and deception. And such charges have in fact been repeatedly made by opponents of Prop 98, who have focused their campaign almost entirely on the rent control issue. For reasons I outlined in this post, I think that the charge of deception is wrong or at least greatly overstated. The sponsors of Prop 98 don't deny that it will phase out rent control; the official Prop 98 website specifically notes that it will. They merely focus on other more popular aspects of the initiative in their public rhetoric. Certainly, any deception by the Pro-98 side pales in comparison to that practiced by the sponsors of Prop 99, who are promoting an initiative intended to achieve the exact opposite of its stated objectives.

Nonetheless, the charge of deception is easy to make and impossible to refute in a succint way that ordinary voters can quickly grasp. It effectively diverts public attention away from the issue of eminent domain, and from the far greater deception perpetrated by the sponsors of Proposition 99. Since the Pro-99/Anti-98 side includes most of California's political establishment and major media outlets, these were predictable results. Like Caesar's wife, the cause of property rights must not only be pure; it also has to be perceived as such. That imperative is particularly important when the other side has vastly greater resources and media support.

Finally, the inclusion of rent control in Prop 98 closed off potentially promising alliances with forces on the political left. As documented in Part I of my academic article on post-Kelo reform, the Kelo decision and economic development takings are extremely unpopular among many liberals and leftists because they tend to victimize the poor and minorities. Ralph Nader, Bill Clinton, Howard Dean, Maxine Waters, and the NAACP (all cited in the paper) were among those who denounced Kelo in very strong terms. Surveys (also cited in the paper) show that 77 percent of self-described liberals oppose Kelo, and almost as many favor state laws banning economic development takings.

On the other hand, most liberals also strongly support rent control. An initiative that packages the anti-Kelo effort together with a rent control phaseout is likely to forfeit the support of many liberal voters who would be willing to support a pure anti-Kelo measure. In a generally liberal Democratic state like California, that is a major political drawback. It is particularly serious in a vote that takes place on June 3, where the absence of major statewide races leads to a low turnout - thereby ensuring that ideologically more extreme voters (who turn out at higher rates than moderates) will be a higher percentage of the total. Obviously, a liberal state like California has many more strongly ideological liberals than conservatives and libertarians.

Worse still, the bundling of rent control and eminent domain reform will lead many liberal activists to think that conservative and libertarian opposition to Kelo is just a cover for other causes that liberals oppose. That might reduce their willingness to ally with us on property rights issues in the future, not just in the case of Proposition 98. As a result, Proposition 98's bundling of rent control and eminent domain reform might have negative effects that go beyond Prop 98's own probable failure. I'm not sure how serious those effects are going to be. But I doubt they will be completely negligible.


Lawrence and the Ninth Circuit opinion:

At least the Ninth Circuit, in contrast to the California Supreme Court, had the decency to wait until after my incommunicado vacation ended.

I agree with Eugene that the best, though hardly inescapable, reading of Lawrence is that it recognizes a fundamental right. I argued for that interpretation in a law review article shortly after the decision came down. Is Lawrence Libertarian?, 88 Minn. L. Rev. 1140(2004). Justice Kennedy's opinion was very opaque, more poetry than marching orders. Many interpretations are plausible. So I take some satisfaction in the panel's conclusion that Lawrence supports heightened scrutiny for laws that burden the exercise of private adult sexual autonomy.

But just about every lower federal and state court, and it seems most scholars, until now have refused to read Lawrence that way. Even courts that have struck down laws that are anti-gay, like the Kansas Supreme Court (striking down a law establishing vastly different criminal penalties for sex with a minor depending on whether the minor was of the same or opposite sex), or striking down laws that have infringed on private adult sexual autonomy, like a recent Fifth Circuit panel (striking down a Texas law against sex toys), have avoided reading Lawrence as a fundamental-rights case. Indeed, on the question of whether the sodomy decision recognized a fundamental right, it can be said without too much exaggeration that the controlling opinion in Lawrence is actually Justice Scalia's dissent.

I also agree that the military context, with the attendant deference the Supreme Court tends to give to congressional judgments about military needs, makes this something other than a run-of-the-mill heightened-scrutiny case.

But I do think cert would be premature at this stage, even if the en banc court affirmed the panel's somewhat unclear statement of the applicable scrutiny. As Eugene notes, we have no actual decision striking the military policy. If the military ban were struck down, and survived further appellate review, Supreme Court review would be all but inevitable.

Nevertheless, quite apart from whether DADT is ultimately struck down, and unless the en banc court reverses the panel's determination that some form of intermediate scrutiny applies under Lawrence, this holding by itself is significant.


Prospects for Supreme Court Review in the Don't Ask, Don't Tell Case:


1. Circuit Split on Whether Burdens on Sexual Autonomy Rights Require Heightened Scrutiny: As I noted below, there's now a split on the subject between the Ninth and the Eleventh Circuits, and the question extends far beyond "Don't Ask, Don't Tell." (The Eleventh Circuit decision, for instance, upheld Florida's ban on adoption by homosexuals; that case might well come out differently under heightened scrutiny.) Such circuit splits are usually seen by the Court as counseling in favor of agreeing to hear the case.

On the other hand, it's only a 1:1 split now, as best I can tell, and this is the very sort of area where the Court might want to see more discussion by lower courts (as well as more similarity among the particular policies involved in the cases).

2. Interference with Federal Statute and Military Policy: A court's striking down a federal statute — or an important executive policy — is also often seen by the Court as counseling in favor of agreeing to hear the case.

Here, though, the Ninth Circuit didn't strike down "Don't Ask, Don't Tell," but just remanded to the trial court to consider arguments about whether the policy is indeed necessary to protect unit cohesion. This means there's no final judgment below, an important factor that has traditionally counseled against Supreme Court review, especially in state cases but also in federal cases like this one. It also means that the Court won't have much of a factual record on the necessary-to-protect-unit-cohesion issue; where there's some possibility that the factual record may be relevant, the absence of such a record at this stage might lead the Court to want to wait until the trial court finds the facts and the Ninth Circuit then gets another change to review it. And the lack of a final decision means that the government can't easily argue that the Ninth Circuit decision is frustrating important military judgments — the government hasn't been enjoined from implementing the "Don't Ask, Don't Tell" policy.

3. The Solicitor General's Decisions: Of course, the Court is sure not to grant certiorari until the government asks for it. The government will likely choose to ask the Ninth Circuit to rehear the case en banc first; an 11-judge en banc panel may well reverse the panel decision. The Ninth Circuit is on balance considerably less liberal than this particular panel; it has 11 Reagan/Bush Sr./Bush Jr. appointees among its active judges (including Chief Judge Kozinski, who is guaranteed to be on any en banc panels), and 16 Carter/Clinton appointees. A majority-Republican en banc panel is still unlikely given this distribution, but the en banc panel is likely to be more conservative than the 3-judge panel in this case (two Clinton judges and a senior judge appointed by Carter).

If the Ninth Circuit refuses to take the case en banc, or takes it but affirms the panel decision, then I suspect that the current Administration — or a McCain Administration — would petition for certiorari right away, rather than going on to a trial (though that's not certain). On the other hand, en banc review might put the decision off until after the election, and a possible Obama (or long-shot Clinton) victory. At that point, it seems likely that a Democratic Administration would at least wait until after the trial and subsequent appeals.


Ninth Circuit Demands Heightened Scrutiny of "Don't Ask Don't Tell":

Orin summarized the opinion below; let me add a few thoughts:

1. Sexual Autonomy Rights: The panel's decision strongly suggests that Lawrence v. Texas recognizes a fundamental constitutional right to sexual autonomy, so that laws that burden this right must be subject to some heightened scrutiny. I've long argued that this is how Lawrence must be read, but this creates a circuit split with an Eleventh Circuit decision holding that Lawrence only mandated rational basis scrutiny.

I also think this would bear on sexual autonomy matters that don't involve same-sex conduct -- for instance, restrictions on sex between dental hygienists and their ex-patients or even bans on incestuous sex between adults. Some such restrictions might still be upheld under heightened scrutiny, but it seems to me that under the Ninth Circuit's (correct) interpretation of Lawrence, they must face such scrutiny.

2. Special Standards for the Military? Yet even if the panel is right on its general interpretation of Lawrence, I was struck by its failure to consider that the sexual autonomy right -- like the right to free speech, or the Sherbert/Yoder-era right to free exercise of religion -- might demand a far lower standard of scrutiny in the military than outside it. "Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society," the Court expressly held, rejecting the strict scrutiny standard for religious freedom claims.

Perhaps the panel contemplates that the special role of the military would be considered entirely within the heightened scrutiny framework that it applies (or within the strict scrutiny framework that Judge Canby would have applied). But this is not how the Court has treated free speech or free exercise rights; in those contexts, it has applied a far more deferential standard of review from the outset. I would have expected some explanation of why sexual autonomy rights should be treated better than those other rights.

3. Heightened Scrutiny: The Court has sometimes opined that burdens on fundamental rights (especially under substantive due process or the right to privacy) must be subject to strict scrutiny. Other commentators and judges have picked up on this.

But there's ample precedent for the Ninth Circuit's mixed intermediate-strict scrutiny test: As the Ninth Circuit pointed out, the substantive due process right to be free from unwanted medication is also judged under this test (which requires that a restriction be necessary to further an important government interest, rather than the strict scrutiny "necessary to further a compelling government interest" or the pure intermediate scrutiny "substantially related to an important government interest"). The court could also have pointed to the right to marry, which uses a similar formulation ("closely tailored to effectuate" "sufficiently important state interests"). And outside the substantive due process context, such a test is also used as to content-based restrictions on broadcast television and radio.

One could argue, for various reasons, that there should be no heightened scrutiny of sexual autonomy rights at all, that there should be no such scrutiny in the military context, that there should be strict scrutiny, or that having different standards of heightened scrutiny -- strict, intermediate, and mixed intermediate-strict -- requires subtle distinctions that courts can't practically (or even theoretically) apply. But the argument can't simply turn on the claim that, as a matter of precedent, strict scrutiny and the rational basis test are the only games in town.

4. Chances of Supreme Court Review: More on this in an upcoming post.


Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy: The Ninth Circuit handed down a decision today concluding that the military's "Don't Ask, Don't Tell" policy should be subject to heightened scrutiny under Lawrence v. Texas. The new decision is Witt v. Department of the Air Force. The majority opinion was by Judge Gould joined by Judge Graber; Judge Canby concurred in part and dissented in part on the ground that the majority did not go far enough.

  From the opinion:
In previous cases, we have applied rational basis review to DADT and predecessor policies. See, e.g., Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate.
  Specifically, the panel considers Lawrence and concludes that it's not persuasive as an application of rational basis scrutiny. But Lawrence doesn't say what kind of heightened scrutiny it is applying — or even whether it is applying heightened scrutiny — so the panel must determine what type of heightened scrutiny is appropriate.

  The panel ends up adopting a modified-intermediate scrutiny standard that it finds in a case involving forcing a defendant to take medication to be competent in a criminal trial, Sell v. United States, 539 U.S. 166 (2003). The panel then concludes that it doesn't have enough facts to know if the "Don't Ask, Don't Tell Policy" is consistent with Substantive Due Process under the specific forced medication standard from Sell, so it remands for more factfinding. (If you're missing the connection between gay rights and forcing a criminal defendant to take medication to be competent at trial, re-read the first two words of the title of this post.)

  Judge Canby concurred in part and dissented in part; he would have subjected the "Don't Ask, Don't Tell" policy to strict scrutiny.

  The obvious question is, will the Justice Department petition for certiorari, and if so, would the Court take it? This isn't my area and I haven't followed the cases, so I only have uninformed speculation. But I would think that the key difficulty from a cert perspective would be that the decision isn't final; the panel remanded for factfinding, and the court could still conclude that the policy is constitutional under the heightened scrutiny standard. So even if there is a "methodological split" on the degree of scrutiny for sexual orientation claims under Lawrence, it may not actually change outcomes in this situation. At the same time, the Court is always very attentive to cert petitions from the SG, and this is obviously a major issue of national importance. Thanks to How Appealing for the link.

[Peter Spiro, guest-blogging, May 21, 2008 at 12:13pm] Trackbacks
The Vanishing "Rights and Obligations of Citizenship":

This is a standard refrain of our political discourse, a boilerplate phrase over which we ordinarily have no reason to pause. But (as I describe in Beyond Citizenship) the “rights and obligations of citizenship” have been whittled down to a very small quantity. That reflects and reinforces the diminished meaning of citizenship.

First, on the obligations side, there is a single obligation peculiar to citizenship: jury duty. That’s it. Two obligations commonly thought to define citizenship –- military service and taxes –- in fact apply to resident noncitizens as well. Aliens, even undocumented aliens, have to register with the Selective Service. Taxes are extracted largely on the basis of residency, not citizenship (even nonresident noncitizens who have to pay taxes on business interests in the US).

On the rights side, there’s only slightly more weight in the citizenship balance. There is the franchise, held out as among the most valuable prerogatives of citizenship. Never mind that about half of voting-age citizens don’t bother to cast their ballots. If the vote is thought to equate with political participation, noncitizens have multiple alternative channels to have their voices heard.

For starters, permanent residents can make federal campaign contributions. Noncitizens also have the vehicles of civil society (including powerful churches, unions, and corporations) through which to participate. Many, of course, also have citizen relatives and co-ethnics to advocate their interests through the ordinary political process. And when all else fails, taking to the streets can get the message across pretty effectively, as evidenced by the massive marches in the spring 2006 against proposed immigration reform measures.

There is also eligibility for the federal civil service, which is restricted to citizens (with limited exceptions, including law clerks to federal judges!), and a small number of state public sector positions.

That leaves locational security and some immigration benefits as the most important rights associated with citizenship. If you are a citizen, you are absolutely immune from deportation. As an alien you are less secure. But as a permanent resident alien, you’re not that much less secure. Assuming that you stay out of trouble with the criminal law, a green card is the functional equivalent of a passport. That’s the salient divide, between legal resident alien and citizen, in considering the meaning of citizenship. But undocumented aliens enjoy a surprisingly level of locational security, too, at least once they’re past the border. Interior enforcement is so thin that the average undocumented alien doesn’t have much to fear on a day-to-day basis (although admittedly more now than before recent well-publicized raids).

In the book, I chart a historical trajectory in which citizenship has come to mean less over time it terms of what it gives and what it extracts. It was once the case, for instance, that many states restricted land ownership by aliens. Noncitizens were typically barred at the state level from a broad range of professions, including from practicing medicine, accounting, and embalming. Every state in the Union barred aliens from the practice of law. These were significant disabilities that have largely disappeared. On the obligations side, before 1951 aliens could opt out of military service (though at the cost of permanent disbarment from naturalization).

So why not revalue citizenship by infusing the status with a more robust set of rights and responsibilities?

It just won’t work. On the rights side, witness the experience with the 1996 welfare reform act, which cut legal immigrants out of important public benefits programs. Within a few years, most of them had been restored. Why? Because there’s a general acknowledgment that legal resident aliens are part of the community, too. Another example: even after the foreign influence-peddling scandals of the early Clinton years, proposed legislation to bar contributions from permanent residents went nowhere.

On the obligations side, imagine if you exempted aliens from paying taxes. Who would naturalize at that cost? (To the extent that citizenship does make a significant difference in tax burden — as with US citizens abroad facing estate taxes — it is surely the primary motivation for renunciation.) As for military service, no one really wants to go back to the draft.

That may be the strongest evidence of the diminished condition of citizenship and the state. Dying for your country used to be the paramount obligation of citizenship, what set it apart from other membership organizations, and it was an obligation freely and proudly taken. Today for many the armed forces are a job and not much more (which is by no means to demean those who serve, and those who serve out of patriotism, but judging from recruiting and retention problems they are now a minority). Calls for a return to national service — an important tool for building civic solidarity, as often advocated from the left as the right — have gone nowhere, even in the wake of 9/11 and Iraq. The fact is that most citizens don’t feel giving much to their country any more (and most would like to give a lot less, in the form of reduced taxes).

That may be because citizens feel less in common with other citizens. The dynamic then becomes self-reinforcing: to the extent citizenship means less, existing citizens care less about the thresholds to citizenship. But the lower the threshold, the lower the level of commonality, which in turn points towards it meaning less still.


Institute for Justice Looking To Hire Two Lawyers:

I almost never post such job announcements, but I think so highly of the Institute for Justice that I'm making an exception here. They are a first-rate libertarian public interest law firm -- none is better (and at most a few are equal or even close), even if one includes the more conservative outfits. My sense is that for quite a few of our readers, this would be a dream job, so I thought I'd post the notice here:

Tired of working on cases you don’t believe in? Longing to do something meaningful with your law degree? The Institute for Justice, the nation’s leading libertarian public interest law firm, is seeking two staff attorneys to join its merry band of litigators in its Arlington, Va., headquarters.

IJ litigates cutting-edge constitutional cases in the areas of private property rights, economic liberty, school choice, and free speech in both state and federal courts nationwide. We’ve litigated cases before the U.S. Supreme Court including the Kelo eminent domain case, the Swedenburg wine direct shipping case, and the Zelman school choice case. We seek attorneys with 0-5 years of litigation experience, excellent communication skills, an entrepreneurial spirit, solid academic records, a passion for freedom, and a good sense of humor. Clerkship preferred.

We offer a competitive salary, full health, dental, and life insurance benefits, and a pension plan as well as a collegial, positive work environment and the opportunity to gain real litigation experience with meaningful responsibility in cases that will have immediate real-world impact. All of this is offered in a place that was recognized as one of the 55 great places to work in DC by Washingtonian magazine. If you love liberty and the law and fighting for our nation’s founding principles, this is the place for you.

Send cover letter, resume and writing sample, in confidence, to:
Human Resource Department
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203


Secondary sources in the California marriage decision:

Citations in judicial opinions are about the only way legal academics know that their scholarship is being considered by someone other than other legal academics and that it might even be having some real-world effect. The use of secondary sources in last week’s California marriage decision will delight some of the authors and dismay others. A few examples:

Carlos Ball: Professor Ball – soon to be at Rutgers-Newark – is one of the most interesting and thoughtful defenders of gay equality among legal academics today. He is cited for the idea that the fundamental right to marry has a positive dimension; that is, the state must provide some formal legal recognition to family relationships. Op. at 65 n. 43. I have my doubts about this view, since rights are not generally thought to impose positive obligations on the state. I also don’t think this conclusion was necessary to the court’s holding. But Ball makes a good case for it in a 2004 Minnesota Law Review article and the California court agrees with him.

David Blankenhorn: Blankenhorn’s very good 2007 book arguing against gay marriage, The Future of Marriage, is cited for the idea that marriage has historically been about procreation. Id. at 73. The court notes, however, that the constitutional right to marry has never been limited to couples who can procreate. Id. at 73-74.

Jesse Choper: The former Berkeley law dean is cited for the idea that courts should defend individual rights no matter the political reaction. Id. at 110. It is the only oblique reference I can find in the opinion to the possibility that California voters will repeal gay marriage at the ballot box in November.

Mary Ann Glendon: Professor Glendon of Harvard, a conservative Catholic who’s now the US Ambassador to the Vatican, opposes gay marriage. But in reaching its conclusion that gay marriage is good for society, the court cites her for the proposition that legal obligations in marriage help relieve society of social-welfare burdens it would otherwise have. Id. at 58 n. 37.

John Rawls: Yes, Rawls! The court refutes an ill-considered argument by amicus curiae the American Center for Law & Justice, which opposes gay marriage, that Rawls believed reproduction is essential to family function. Id. at. 78-79 n. 51. Rawls had some nice things to say about gay people and didn’t think any particular family form was critical. There are many philosophers one could cite in opposition to gay marriage, but the justice-as-fairness guru is among the least persuasive for that position.

Cass Sunstein: What’s an opinion these days on almost any subject without a citation to one of my favorite professors from law school? The majority cites his Cardozo article on the right to marry, if only to distinguish his view about the nature and scope of the federal constitutional right from its view about the state constitutional right. Id. at 63 n. 42.

Lynn Wardle: Professor Wardle of BYU Law School has been among the most prolific scholars in the country opposed to gay marriage. Moreover, his writing has been influential and is frequently cited by courts to justify, among other things, Florida’s prohibition on adoption by homosexuals. Wardle’s work is cited twice in the majority opinion. Along with David Blankenhorn and Maggie Gallagher (the court misspells her name as “Gallaher”), Wardle is cited as arguing that same-sex marriage severs the link between procreation and child-rearing and sends the message that it is not important to have biological mothers and fathers raising their children. Id. at 77. The courts says this argument “lacks merit” because allowing gay couples to marry does not diminish the incentive that straight couples have to marry and does not reduce their legal responsibilities to their own children. Further, same-sex marriage extends to the children being raised by gay couples the legally protected familial structure it provides to children raised by opposite-sex married couples. Id. at 78. To Wardle’s probable dismay, the court relies on his work on the international status of marriage for the idea that many nations provide special protections for families and marriage – a protection the court (but not Wardle) thinks should extend to gay families. Id. at 63 n. 41.

Congratulations (and some condolences) to these authors!


Interview with the California Chief Justice:

The Los Angeles Times has published an interesting interview with California Chief Justice Ronald George, author of the marriage decision. Some excerpts:

In the days leading up to the California Supreme Court's historic same-sex marriage ruling Thursday, the decision "weighed most heavily" on Chief Justice Ronald M. George — more so, he said, than any previous case in his nearly 17 years on the court.

The court was poised 4 to 3 not only to legalize same-sex marriage but also to extend to sexual orientation the same broad protections against bias previously saved for race, gender and religion. The decision went further than any other state high court's and would stun legal scholars, who have long characterized George and his court as cautious and middle of the road.

But as he read the legal arguments, the 68-year-old moderate Republican was drawn by memory to a long ago trip he made with his European immigrant parents through the American South. There, the signs warning "No Negro" or "No colored" left "quite an indelible impression on me," he recalled in a wide-ranging interview Friday.

"I think," he concluded, "there are times when doing the right thing means not playing it safe."

Yet he described his thinking on the constitutional status of state marriage laws as more of an evolution than an epiphany, the result of his reading and long discussions with staff lawyers.

As he sometimes does with the most incendiary cases, George assigned the majority opinion to himself. He wrote and rewrote, poring over draft after draft. Each word change had to be approved by the other three justices joining him in the majority. Even the likely dissenters had to be told in "pink slips" of every word change.

On Wednesday, the long-awaited ruling was finally ready.

Court Clerk Fritz Ohlrich locked up stacks of the fat, stapled court opinions in his office to protect against leaks, and George's staff asked that security be beefed up. A fellow justice told George she would be at her desk in the morning because she wanted "to be part of history." . . .

George, who grew up in Los Angeles, said he counts gays among his friends. Four years ago, he peered out his chambers' windows across from San Francisco City Hall to watch gay couples lining up to marry. He saw the showers of rice, the popping of champagne corks, the euphoria of the couples. . . .

Once he took up the constitutional challenge, he said he did not permit any consideration of political fallout.

"I am very fatalistic about these things," he said. "If you worry, always looking over your shoulders, then maybe it's time to hang up your robe." . . . Asked whether he thought most Californians would accept the marriage ruling, George said flatly: "I really don't know."

He indicated he saw the fight for same-sex marriage as a civil rights case akin to the legal battle that ended laws banning interracial marriage. He noted that the California Supreme Court moved ahead of public sentiment 60 years ago when it became the first in the country to strike down the anti-miscegenation laws.

California's decision, in a case called Perez vs. Sharp, preceded the U.S. Supreme Court's action on the issue by 19 years. Even after that ruling, Californians passed an initiative that would permit racial discrimination in housing. The state high court again responded by overturning the law, George said.

Rather than ignoring voters, "what you are doing is applying the Constitution, the ultimate expression of the people's will," George said.

By the time of the same-sex marriage oral argument in March, three other justices had tentatively decided to join George's opinion. They are Justices Joyce L. Kennard, Kathryn Mickle Werdegar and (sole Democrat) Carlos R. Moreno, the court's more liberal wing. . . .

Relations among the justices remained warm and cordial. George said he was even pleased with the dissents, which contended that a decision on same-sex marriage should be made by the people, not the court.

Some judges in other states that had considered same-sex marriage had written in ways that were "homophobic" and demeaning to lesbians and gays, statements "that you don't find" in California's dissenting opinions, George said. They were signed by Justices Marvin Baxter, Ming Chin and Carol A. Corrigan. . . .

George's reputation for caution is based on the court's tendency, under him, to decide cases narrowly, refusing to reach issues not necessary to the case at hand. Advocates thrust the central constitutional question of equality for gay people on the court; there was no way to avoid it. . . .

Santa Clara University law professor Gerald Uelmen, who has closely followed George's court tenure, said "the biggest surprise" of the marriage ruling was that George favored it. Uelmen said George must have done "some real soul searching."

The "very carefully written opinion" reflects that George "is very sensitive to how this will be perceived," Uelmen said. "He realized that this more than any other thing he does as chief justice will define his legacy. He'll certainly take a good deal of political heat over this."

Mathew Staver, founder of Liberty Counsel, said he had long expected George to vote against same-sex marriage.

"His change from where I thought he would be is baffling," said Staver, whose group promotes traditional marriage. . . .

[George] went home Thursday night drained and discovered a card left by friends at his San Francisco apartment. It was a Japanese watercolor of a branch with red berries. His friends had written "Congratulations!" inside.

"Why not go out on a limb?" the greeting on the card read.


A Tale of Two Houses:

An e-mail is circulating (again) comparing two interesting homes.

House #1: A 20 room mansion ( not including 8 bathrooms ) heated by natural gas. Add on a pool ( and a pool house) and a separate guest house, all heated by gas. In one month this residence consumes more energy than the average American household does in a year. The average bill for electricity and natural gas runs over $2400. In natural gas alone, this property consumes more than 20 times the national average for an American home. This house is not situated in a Northern or Midwestern 'snow belt' area. It's in the South.

House #2: Designed by an architecture professor at a leading national university. This house incorporates every 'green' feature current home construction can provide. The house is 4,000 square feet ( 4 bedrooms ) and is nestled on a high prairie in the American southwest. A central closet in the house holds geothermal heat-pumps drawing ground water through pipes sunk 300 feet into the ground. The water (usually 67 degrees F.) heats the house in the winter and cools it in the summer. The system uses no fossil fuels such as oil or natural gas and it consumes one-quarter electricity required for a conventional heating/cooling system. Rainwater from the roof is collected and funneled into a 25,000 gallon underground cistern. Wastewater from showers, sinks and toilets goes into underground purifying tanks and then into the cistern. The collected water then irrigates the land surrounding the house. Surrounding flowers and shrubs native to the area enable the property to blend into the surrounding rural landscape.

The punchline of hte e-mail is that the first house belongs to Al Gore, and the second house is the Crawford ranch house of President George W. Bush.

Whenever I receive e-mails like this, I check Snopes to see if the story is true. In almost every case, the story is an urban legend -- and I promptly inform the sender (in the vain hope I'll get fewer of these messages in the future). In this case, however, it turns out the story is basically true. Go figure.


MIrror of Justice on SSM:

Over the past few days, Mirror of Justice has been discussing SSM (from a Catholic legal perspective, of course). The initial post by Rob Vischer, with responses by Robert George and Scott Fitzgibbon.


Tuesday, May 20, 2008

Notebook Computer for Incoming College Student:

Any suggestions on a notebook computer that my wife and I can give as a high school graduation present? I'm thinking something light and reliable, with a nice screen. It needs to be good enough for word processing and casual Internet use; no need to have high power for serious video gaming. I'd love to hear any recommendations you folks might have. Thanks!


Agee Confirmed: Congratulations to G. Steven Agee, recently of the Virginia Supreme Court, who has just been confirmed to a seat on the U.S. Court of Appeals for the Fourth Circuit by a vote of 96-0.

Money for the Visually Impaired:

Today the U.S. Court of Appeals for the D.C. Circuit upheld a district court opinion finding that "the Treasury Department's failure to design and issue paper currency that is readily distinguishable to the visually impaired violates section 504 of the Rehabilitation Act." Judge Judith Rogers wrote the majority opinion, and was joined by Judge Thomas Griffith. Judge Raymond Randolph dissented.

The divided ruling in American Council of the Blind v. Paulson held that the failure to design currency more readily usable by the visually impaired denies them "meaningful access" to this government program.

The current design of paper money springs from the world of the sighted. Upon casual inspection, anyone with good vision can readily discern the value of U.S. currency; yet even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The Secretary has identified no reason that requires paper currency to be uniform to the touch. Instead, the fact that U.S. paper currency does not include features that are detectable by the visually impaired appears to have been a result of the type of “thoughtlessness and indifference” that Congress targeted under section 504. (citation omitted)
That the blind and other visually impaired often develop "coping mechanisms" does not mean they lack "meaningful access" to the use of U.S. currency.

The Treasury Department defended its failure to accommodate the visually impaired by arguing that adopting such currency designs would impose an "undue burden," but the court wasn't buying it. According to Judge Rogers' majority opinion, "section 504 requires only that the least burdensome accommodation not be unduly burdensome," and the government failed "to demonstrate that all accommodations found by the district court to be facially reasonable would pose an undue burden." The court also concluded that the impact on third parties of a redesign of U.S. currency, such as by changing the sizes of various bills, was not relevant to determining whether complying with section 504 would impose an "undue burden." This is certainly unwelcome news for the vending machine industry, one of the groups that filed a brief in support of the government.

In dissent, Judge Randolph argued both that the court should have dismissed the case as an improper interlocutory appeal, and that it was wrong to uphold the district court's grant of summary judgment without finding that there was an "effective accomodation the government implement without imposing an 'undue burden' on itself or the private sector." Many potential currency modifications that would help the visually impaired are impractical or unreliable, and those that remain may be unduly expensive. Thus, Judge Randolph argued, the majority had "not identified a single accomodation that is undisputedly 'reasonable effective, and feasible,' and for which there is no material issue about an undue burden."

This decision is potentially quite significant. Among other things, it could result in the redesign of all bills larger than $1. The decision was also not uniformly supported by advocates for the blind and visually impaired. While the American Council of the Blind initiated the suit against the Treasury Department, the National Federation of the Blind supported the government's position.

One interesting bit of the opinion is footnote 16, which discusses the nature of currency as a universal medium, and cites Aristotle's Nicomachean Ethics, a committee report of the Continental Congress, and Montesquieu. Also interesting, and somewhat ironic, as Howard Bashman notes, the opinion itself is no more friendly to the visually impaired than U.S. currency.


A Marc Dann Mystery:

An Ohio state AG office attorney's Blackberry was mysteriously stolen just hours after the Inspector General's office swept the AG's office, locking down staff computers. What a weird coincidence.

UPDATE: The missing BlackBerry has been found.


Obama, McCain, and the Jewish Vote:

There have been a spate of articles recently about Obama and the Jewish vote, the most recent by Bret Stephens in the Wall Street Journal. Without exception, these articles have focused on whether Obama is or is perceived to be sufficiently pro-Israel to retain Jewish voters.

The answer is, "yes," as these articles consistently conclude. But I think the authors are missing the broader picture, which I've tried to emphasize. In short, Israel is not going to be a major issue in this campaign, but the comfort level of Jewish voters with the candidates will be.

The Republican presidential candidates since 1992 have been especially unattractive to Jewish voters, and the Democratic candidates especially attractive. The elder Bush did relatively well (about 35%) among Jewish voters in 1988, basking in Reagan's reflected glory. But by 1992, Jewish voters saw him as an out-of-touch WASP patrician (the kind of guy who kept your dad out of his country club) who had top advisers who said things like "Fuck the Jews!" (that was James Baker). Meanwhile, Bill Clinton, with a host of Jewish friends and acquaintances, was the most conservative Democratic presidential candidate since at least JFK, giving habitual Jewish Democrats little reason to vote for his opponent.

Bob Dole, who had no particular "Jewish" connections, was no match for Clinton, who, not incidentally, had far more Jews in high-level positions in his administration than any president in history, including both of his Supreme Court nominees. Bush II had the disadvantage of being his father's son, and a devout conservative evangelical Christian, running against Al Gore. Gore's daughter married a Jewish guy, and went all over the country campaigning for him among Jewish voters, not to mention that Gore was able to bask in Clinton's glory, and of course choosing a moderate Jewish running mate. Bush II did a bit better in 2004 (24%) after he proved to be quite friendly to the Jewish community and Israel, and while running against a more liberal opponent. But he was still no match for Kerry, with his Jewish grandparents, Jewish brother (converted), and strong ties to the Northeastern liberal community of which Jews are an integral part.

Fast forward to 2008. Obama is probably the most liberal candidate the Democrats have fielded since at least Walter Mondale, perhaps since George McGovern. Contrary to popular belief, very liberal presidential candidates make a substantial percentage of Jewish voters nervous, especially with regard to national security issues. If you were going to have a longtime minister/friend/mentor who makes Jews nervous, Rev. Jeremiah Wright, with his inflammatory rhetoric and ties to Louis Farrakhan, is straight out of central casting. Obama's ties to radical leftists such as Bill Ayers are also of concern, given that the radical left's hostility to Israel, objectionable in and of itself, blurs into anti-Semitism all too often. And Obama's relative novelty leaves at least some voters wondering whether they know enough about him and his unique background to trust him.

Meanwhile, consider the relative advantages McCain has over recent Republican presidential candidates: He has Joe Lieberman, exactly the person to win over moderate Jewish voters, backing him fiercely; an open, outspoken, judeophilic brother; tenuous and often difficult ties to the Christian right; a relatively moderate image; and a strong record on Israel.

In short, the 50% of Jews who would vote for just about any Democrat aren't going to swayed. Neither are the 15% or so of Jews who supported the Bushes in 1992 and 2000. Of the remaining 35%, who are mostly moderate politically, the question is as much about comfort level as about policy. Consider that Reagan did extremely well for a Republican among Jewish voters, even though he was the most conservative Republican candidate since the New Deal save Goldwater. But this Hollywood actor with a long history of writing for Jewish newspapers and with many Jewish friends appealed to many Jews in a way that his more moderate successor, George H.W. Bush, could not. The relevant implicit question is, "in whose social circle would I feel more comfortable?" In recent elections, it's been rather clear where most Jews thought they would "fit" better. With regard to McCain versus Obama, I think the question is very much up in the air.


Copyright History:

Copyright guru Bill Patry has a wonderful blog posting about the recent death of Harvey Schein, a former Sony Corp. exec who was instrumental in the development of the VCR (and in the events leading up to the seminal Sony v. Universal Supreme Court case in 1984). [He also references a book, James Lardner's "Fast Forward: Hollywood, The Japanese, and the VCR Wars," which I'm not familiar with, but which Bill P. says "everyone interested in copyright should read," so I'll probably put it on my list ...)


Bleg About Clinical Trials and Availability of Experimental Medications:

One argument against letting terminally ill patients use experimental drugs is that this will interfere with randomized clinical drug studies. I respond in some measure to this argument in my Medical Self-Defense piece (PDF page 18):

Terminally ill patients’ right to use experimental drugs might also interfere with randomized clinical drug studies. It’s possible that so many patients will insist on getting a not-fully-tested but promising drug that researchers will be unable to test the drug’s effectiveness. If people can just buy the drug, they may do so rather than enroll in a study in which they might get a placebo instead of the drug. [Footnote: For examples of this argument, see] Brief for Appellee in the Abigail Alliance case; Ezekiel J. Emanuel, Drug Addiction, NEW REPUBLIC, July 3, 2006, at 9, 10–12.] ...

[But this] argument justifies limiting medical self-defense only when such limits are necessary for conducting clinical studies and no other alternatives will do. For instance, if the studies require 200 patients, and there are 10,000 who seek the experimental therapy, there is little reason to constrain the self-defense rights of all 10,000. Likewise, if the drug is now being studied only on people who suffer from a particular kind or stage of a disease, the drug should not be legally barred to those who fall outside those studies. If we must strip people of self-defense rights to save many others’ lives in the future, we should impose this tragic constraint on as few people as possible and to as small an extent as possible.

[Footnote:] [Note also that] society would [rightly] balk at a law that generally forced people to go into clinical trials, and a law that forces people to go into clinical trials if they want access to the only possibly lifesaving drugs seems to be no less coercive.

But my friend Sally Satel, a resident scholar at the American Enterprise Institute, is looking for further responses, especially scientific ones focused on how clinical trials can effectively coexist with availability of the experimental drugs outside those trials. If any of you know of any studies or arguments that focus on this, please post the references in the comments. Many thanks!


Another foreign head of state for Obama to meet in person:

By expressing a readiness to meet with Cuba's Raul Castro, and also to meet with personally with the heads of Iran, Syria, and North Korea, Senator Obama seems to be promising that one of the changes his Presidency would bring is a greater willingness to engage in person with controversial foreign heads of state. Accordingly, there is another head of state with whom Obama should also promise to be willing to meet in person: Taiwan's new President Ma Ying-Jeou. Inaugurated on May 20 as Taiwan's democratically-elected President, Ma is a Harvard Law School graduate who speaks excellent English. Unlike some of the other foreign leaders whom Obama has said he would meet, Ma won a legitimate, free election, is very friendly towards the United States, is not working on a nuclear weapons program, does not militarily threaten the U.S. or its allies, and does not sponsor international terrorism. A fortiori, the case for a meeting with Ma is much stronger than the case for a meeting with Castro et al.

Ever since the Carter administration broke diplomatic relations with Taiwan, the U.S. State Department has imposed a policy against personal meetings (or even phone calls!) between high-ranking officials of the United States and Taiwan. As detailed in an American Enterprise Institute report, the State Department's ban on direct high-level U.S.-Taiwan contacts interferes with effective U.S. policy towards Taiwan, and leads to unnecessary misunderstandings.

An Obama-Ma meeting would infuriate the Chinese Communist dictatorship. However, such a meeting might help allay concerns that President Obama would be easily coerced by dictatorships, or that he might be weak in supporting U.S. allies. In any case, given that Obama has answered whether he would be willing to meet with Raul Castro, it would be reasonable for him to state whether he will meet with Ma Ying-Jeou.


Possible Prosecution in England for Calling Scientology "Cult" on Sign:

The Guardian (UK) reports:

A teenager is facing prosecution for using the word "cult" to describe the Church of Scientology.

The unnamed 15-year-old was served the summons by City of London police when he took part in a peaceful demonstration opposite the London headquarters of the controversial religion....

A policewoman ... read him section five of the Public Order Act and "strongly advised" him to remove the sign. The section prohibits signs which have representations or words which are threatening, abusive or insulting.

The teenager refused to back down, quoting a 1984 high court ruling from Mr Justice Latey, in which he described the Church of Scientology as a "cult" which was "corrupt, sinister and dangerous".

After the exchange, a policewoman handed him a court summons and removed his sign....

A spokeswoman for the force said today: "City of London police had received complaints about demonstrators using the words 'cult' and 'Scientology kills' during protests against the Church of Scientology.

"Following advice from the Crown Prosecution Service some demonstrators were warned verbally and in writing that their signs breached section five of the Public Order Act.

"One demonstrator continued to display a placard despite police warnings and was reported for an offence under section five. A file on the case will go to the CPS."

Here's what appears to be the teenager's report of the incident, which the article appears to quote:

I brought a sign to the May 10th protest that said: "Scientology is not a religion, it is a dangerous cult".

Within 5 minutes of arriving at QVS, I was told by a member of the police that I was not allowed to use 'that word', and that the final decision would be made by the Inspector.

At around 11:15, while on the high ground of QVS, I was approached by these happy fellows: YouTube - Anonymous Protests Scientology - London - May 10th2008 (:40)

I was read the Section 5 Public Order Act of 1986, and was told I was strongly advised to remove the sign. You can see my response in the video, as I read out Justice Latey's statement about the Cult of Scientology. I was given until 11:30 to remove the sign.

At around 12:05 the police caught up with me, I was given a Court Summons and my details were taken down....

Thanks to InstaPundit for the pointer.

Related Posts (on one page):

  1. "No Charges Over [Anti-]Scientology Demo[nstration]":
  2. Possible Prosecution in England for Calling Scientology "Cult" on Sign:

A Crime to Emotionally Distress People?

The Missouri Legislature just passed a bill that, among other things, makes it a crime whenever someone

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or ...

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.

So ordinary teasing would be a crime, so long as it causes "emotional distress" and is "without good cause" (as much teasing would be). And a wide range of other speech and conduct is a potential crime, depending on whether a judge or jury concludes you had "good cause" for your actions. And if the action is done by someone 21 or over against someone who's 17 or younger, it's a felony.

So you're annoyed by a 16-year-old who's too loud, and you insult them in front of friends in a way that's "emotionally distressing" — under the new law, you'd be a felon. You're annoyed by what you see as poor service from a 16-year-old employee in a store, and you berate them in front of other customers in a way that's "emotionally distressing," and you'd be a felon if the judge or jury concludes that the public berating is "[w]ithout good cause." And whenever two 13-year-olds distress each other without good cause, they'd both be committing misdemeanors. I hope the governor vetoes the bill, but I have no reason to expect that.

Dan Solove has a lot more. Looks like an overreaction to the Megan Meier teasing-leading-to-suicide case, which is indeed a tragedy but which certainly doesn't justify a response as broad and vague as this one.


Justice Department Inspector Genereral Releases Report on FBI Involvement in Terrorist Interrrogations: It's around 400 pages (6MB .pdf), but looks like an interesting and important read. For those who want the MSM take, here's the Washington Post on it.

D.C. Circuit Affirms Trial Court Ruling that Paper Money Discriminates Against the Blind: I blogged about the District Court opinion here in 2006; Hans Bader has a post on the new D.C. Circuit decision here.

Related Posts (on one page):

  1. The Impact of the Currency Decision:
  2. Money for the Visually Impaired:
  3. D.C. Circuit Affirms Trial Court Ruling that Paper Money Discriminates Against the Blind:

Interviews with Persecuted Ethiopian Journalist:

A few weeks ago, Ethiopian journalist Habtamu Dugo was a guest at the Independence Institute. I interviewed him for a podcast about Internet censorship in Ethiopia. My Independence Institute colleague Mike Krause interviewed him about China's pernicious anti-freedom influence in Africa. And here's the 27-minute video of a wide-ranging interview I conducted with Mr. Dugo for KBDI public television in Denver (for the program "Independent Thinking").

More Independence Institute videos are on our MySpaceTV webpage, and more audio podcasts are at


Edited Versus Unedited Cases: I've been responding to David Post's interesting posts on law school case editing in the comment thread, and thought I would make some broader points in the main text for interested readers. As David suggests, I'm a fan of well-edited cases rather than unedited ones. In this post, I want to say a bit more on what that means and why, focused in particular from the standpoint of choices made by authors of law school casebooks.

  First, a caveat: Not all law school courses are the same, and as a result, not all casebooks can be the same. In some courses, the cases in the casebook provide the governing law: The author has no choice but to include them. That's mostly the case in public law courses like constitutional law or criminal procedure or administrative law. Although the casebook author has some discretion to chose which cases to use and in what order, a chunk of the cases have to be there because they provide the governing legal standards that students need to know.

  On the other hand, that's not true in many fields. In many areas, cases are merely demonstrations of one possible solution to a particular problem. They provide fact patterns and interesting discussions, but are not the only way. That's mostly the case in private law courses like torts or conflicts of laws; there may be particularly famous or influential cases that are often included, but the cases are used mostly for their facts or the example of their reasoning rather than because they are "the law." In these fields, no one case settles the law: Each jurisdiction can and often does take its own path. Given this division among courses, I think it's hard to come up with a single rule on how or whether cases should be edited. I think it depends in part on the course, and the role of cases in that particular course.

  With that caveat made, I think the question of edited versus unedited cases is really a subset of the broader question of how classroom materials should balance two competing needs: (1) the need for students to build and master general legal skills, and (2) the need for students to learn the specific subject matter of the course. Imagine a course built around either extreme. In a course built around need (1), the professor might give the students a tall stack of Westlaw printouts and tell them to go through the 30 or so cases and then find and master the 3 or 4 most relevant to the topic of the next day's class. In a course built around need (2), the professor would assign a treatise excerpt and would assign no cases at all.

  I think most current and former law students will appreciate that neither of these two extremes is ideal for most law school courses, and that most law school courses should strike a balance. The first approach would be overwhelming: Students would spend more time flipping through paper than trying to learn, and they couldn't do this every day for every class. On the other hand, the second approach fails to give students an accurate sense of how the law is made and how it is understood by practitioners. You have to methodically work your way through the original sources to learn the law in these caselaw-based fields. So for most courses, the best approach is some kind of balance between needs (1) and needs (2). (To be clear, there are several other interests beyond (1) and (2), but for now let's focus on the important tension between them.)

[Peter Spiro, guest-blogging, May 20, 2008 at 12:24pm] Trackbacks
Everyone an American, No One an American:

Take six prototypes for puzzling through the contradictions of citizenship and globalization:

1. The child born in San Francisco to a business executive here for three years on an H1B visa who will thereafter return permanently to Italy.

2. The child of a Mexican undocumented alien born in Arkansas who is likely to spend the rest of her life in the United States.

3. The child of an Dominican immigrant born in Washington Heights with both US and Dominican citizenship, who goes to elementary school in Santo Domingo while living with grandparents, inherits property and a business there and ends up voting in Dominican national elections.

4. The child of a Mexican citizen born in Juarez.

5. A tech worker living in Bangalore who’s never been to the United States but watches the Simpsons, wears Levis, is employed by Dell, has cousins in the US, follows US politics closely on MSNBC (is a big fan of John McCain), and would eagerly take an oath to uphold the Constitution.

6. A native-born American who moves permanently to Israel after graduating from college.

I left off my first post on my book Beyond Citizenship suggesting that the barriers to citizenship won’t and shouldn’t be raised. On the politics of birthright citizenship, naturalization, and dual citizenship, see my explanation here. On all three counts, a more restrictive regime is just not in the cards.

On the normative side, for every child of an H1B executive who leaves at age 2 there will be many others who born here who will stay permanently to become organic members of the community, like the child born in Arkansas. If the threshold is raised to exclude such individuals, more members-in-fact will be left outside the citizenship circle. That’s a problem of underinclusion. It creates a problem of coherence and raises the specter of intergenerational caste.

As some of you noted in the comments, immigrant insulation isn't a new phenomenon. I think the technologies of globalization change the picture. Diaspora communities may be able to sustain themselves on a transnational basis. With the dramatic rise in the acceptance of dual citizenship, they’ll be able to maintain the formal tie as well. So the segmentation could be persistent, as in the Dominican example above. The old model of assimilation may no longer hold.

But here’s something that really is new: the underinclusion of members-in-fact outside the territory of the United States.

One of the commenters on my first post pressed the proposition that America is an idea. That’s completely consistent with strong civic notions of American citizenship and identity.

At one time, that idea was distinct. No longer. The American idea of constitutional democracy has gone global. That’s America’s triumph, but it may also be its downfall.

As I ask in the book, if that person in Bangalore wants to take an oath to support the Constitution of the United States, on what grounds can we deny him membership? Indeed, why wouldn’t we want to welcome that person to our community. And what of the child born in Juarez, whose interests and identity will be connected to El Paso, Austin, and Washington (perhaps more so than the native-born American who moves to Israel), but who has the bad luck to have been born a mile on the wrong side of the line? On what grounds can she be excluded?

Same thing if we define America in cultural terms. The rest of the world is bathed in American pop culture. (By way of proving the proposition: Baywatch is a top-rated show in even Iran and Venezuela.) As for (somewhat) higher culture, on the other end, it’s been shown that most American high school seniors would fail the naturalization test.

So: whatever it means to be American, it’s everywhere. But that makes it all the harder to draw the membership line in a meaningful way. The citizenship binary doesn't allow for scalar affiliation. And once community on the ground detaches from membership status, citizenship inevitably decays. As an arbitrary quantity, it will be able to do less work for its members. That explains why the “rights and obligations of citizenship” is already an empty quantity, to which I’ll try to turn in my next post.


On to polygamy?

My co-blogger Todd Zywicki asks a very good question:

So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

The possible slippery slope from recognizing same-sex marriage to recognizing plural marriages has been one of the most common objections to same-sex marriage. (It is one of the objections raised in Justice Baxter's dissent in In re Marriage Cases, the California marriage decision.) It is among the most discussed sub-topics in the larger debate about gay marriage. While some gay-marriage advocates support recognition of plural unions, most others oppose it or are ambivalent about it.

Legislatures, Todd points out, do not have to articulate reasons why they refuse to move further than they have chosen to do so. So a legislature could authorize same-sex marriage, as the California legislature has twice done, without having to justify why it is not opening up the institution to polyamorous relationships. A court following the convention of rendering its results through judicial decision is expected to offer some potential limiting principle for why it won't go further.

Here is all the California Supreme Court had to say about why its decision would not necessarily lead it to declare a constitutional right to polygamy:

We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. Past judicial decisions explain why our nation’s culture has considered the latter types of relationships inimical to the mutually supportive and healthy family relationships promoted by the constitutional right to marry. (See, e.g., Reynolds v. United States (1878) 98 U.S. 145, 165-166; Davis v. Beason (1890) 133 U.S. 333, 341; People v. Scott (2007) 157 Cal.App.4th 189, 192-194; State v. Freeman (Ohio Ct.App. 2003) 801 N.E.2d 906, 909; Smith v. State (Tenn.Crim.App. 1999) 6 S.W.3d 512, 518-520.) Although the historic disparagement of and discrimination against gay individuals and gay couples clearly is no longer constitutionally permissible, the state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. (Accord, e.g., Potter v. Murray City (C.D. Utah 1984) 585 F.Supp. 1126, 1137-1140, affd. (10th Cir. 1985) 760 F.2d 1065, 1068-1071, cert. den. (1985) 474 U.S. 849; People v. Scott, supra, 157 Cal.App.4th 189, 193-194.) Thus, our conclusion that it is improper to interpret the state constitutional right to marry as inapplicable to gay individuals or couples does not affect the constitutional validity of the existing legal prohibitions against polygamy and the marriage of close relatives.

In re Marriage Cases, slip op. at n. 52, 79-80.

This is unsatisfying as an answer to Todd's question. There isn't much meat in this footnote, except the citation to some hoary opinions from the Nineteenth Century. There is nothing like an articulated and non-arbitrary principle distinguishing same-sex marriage from plural marriage. In fact, resting on unadorned and unspecified societal fears that plural marriages have a "potentially detrimental effect on a sound family environment" sounds a lot like the kind of objections long made to recognizing same-sex unions — objections the court refuted at length in its opinion.

I am not faulting the California Supreme Court for failing to fully theorize now a distinction it might be required to make years hence. But I am pointing out that if we are looking for the kind of non-arbitrary principle that will prevent a logical slide to polygamy we will not likely find it so far in marriage decisions.

So is there an answer to Todd? I attempted an answer in a post here in 2005. I have also responded to the polygamy fears in shorter form in columns here and here. Jon Rauch has written about the unique problems created by polygamy here. Philosophy professor John Corvino has written about the distinction here. Many others have written on the topic.

I won't recapitulate these arguments or attempt anything like a comprehensive answer. Instead, here's a Cliff Note's version of some considerations that make proposals for polygamy different in principle from proposals for same-sex marriage:

*There is nothing in principle that necessarily leads from the recognition of a new type of monogamous union (same-sex unions) to the recognition of polygamous unions. Consider the recognition of inter-racial marriage (a type of monogamous union), which reversed long-standing legal bans on miscegenation and departed from deep cultural disapproval of it dating to colonial times and before. Many warned that reversing miscegenation bans would lead to polygamy, but it did not. To the objection that dyadic inter-racial unions would lead to polygamy, the proper response then was, "Why would it?" One response to the fear that dyadic same-sex unions will lead to a polygamy slippery now is, "Why would it?" Opening marriage to one change because the change seems justified does not mean that opening marriage to every change is justified. Every proposal for reform rises or falls on its own merits. Gay marriage advocates have made extensive (and contested) arguments about why it would benefit individuals and society. It is up to polygamy advocates to do the same.

*From a Burkean/Hayekian perspective, it's relevant that polygamy has been historically tried and rejected in many human societies. We do not write on a blank slate when it comes to polygamy. Lessons have been learned from this experience and those lessons have led us away from polygamy in the West, in part because polygamy as practiced has been seen as inconsistent with liberal values, individualism, and sex equality. SSM has not been tried and rejected and is not inconsistent with, indeed arises from, Western values of liberalism, individualism, and sex equality. While the burden is on gay marriage advocates to show why we should try it, I think actual historical experience with polygamy suggests that the burden on polygamy advocates is much heavier.

*Plural unions have historically most often taken the form of one man having many wives. It seems likely in practice it would take that form in the future. This raises many concerns different from those raised by same-sex marriage, including the greater potential for abuse of women and children. These same concerns do not arise with SSM, which should improve the lot of women and children in gay families (if SSM advocates are right about the benefits, a contestable but separate point).

*Polygamy will likely mean that marital opportunities will diminish for some men, since a few men who are very wealthy or otherwise attractive as mates will have many wives. This constricts the marriage market for less desirable men, which leaves some with no mates at all or delays their marriages as compared to their opportunities in a non-polygamous society. And unmarried men present all kinds of difficulties for societies. By contrast, SSM will mean that meaningful marital opportunities will be available for gay persons. More people will be married. Thus, SSM expands marriage opportunities while polygamy contracts them.

*With polygamy, many basic rules of marriage will have to be changed. For example: if the husband dies intestate, who inherits? How are death benefits split? How are child custody disputes decided if a partner wants to divorce the group? If the husband exits, do the wives remain married to each other? On and on. We could craft answers to these questions, but it will involve a dramatic retooling of marriage as a two-person institution. None of these issues arise with SSM; aside from a few technical matters, the marriage rules remain the same. As a legal matter, SSM involves changes in the wording of statutes that specify “husbands” and “wives” and little more. The basic legal design of marriage as a dyadic institution, embedded in literally hundreds of ways in state and federal law, remains untouched.

Perhaps none of this is conclusive against polygamy nor do I offer it as such. I am sure polygamy advocates have responses to these and other concerns about it. But I do think it suggests that SSM and polygamy present quite different questions of history, experience, logic, and public policy such that we are entitled to treat them as separate issues. We may, despite the concerns and the historical trend against polygamy, one day accept it. But the debate about accepting it will not, I think, turn on whether we have first accepted gay marriage.

Related Posts (on one page):

  1. On to polygamy?
  2. Same-Sex Marriage and Polygamy:

A final (for now!) word on "on teaching law"

IT's been a really interesting discussion regarding the use of edited vs. unedited cases -- Daniel Solove's added some thoughts on the debate at Concurring Opinions as well. Orin's last comment:

"In my view, a well-edited case still requires the student to do all the work that you think is so important. It may be that you have had unfortunate experience with over-edited cases, in which they just had the facts and the holding. Or it may be that there are some particularly incoherent opinions in the areas that you teach. But in my view, none of the skills you mention are less well raised when a student reads 5 well-edited cases as compared to 2 or 3 unedited cases. Indeed, I think the contrary is true.

Perhaps we're really just bickering about matters of degree, though. In particular, you say in your original post that you try to choose unedited cases that don't have too much irrelevant stuff in them. I gather you do that for precisely the reason that I think edited cases are better; you think too much irrelevant stuff is distracting and useless to assign. If so, perhaps our differences are more narrow that it appears.

I think that's a fair comment, and I think it usefully pinpoints our disagreement. "None of the skills you mention are less well raised when a student reads 5 well-edited cases as compared to 2 or 3 unedited cases." If one of the skills I'm talking about is "learning how to sort out the irrelevant from the relevant," having an editor sort it out for you does not help you learn it, even if you read 100 edited opinions.
At the same time, I do acknowledge that truly irrelevant stuff is distracting, and that sometimes getting rid of it does help students focus on the task at hand. Our definitions of the "truly irrelevant," though, are probably worlds apart; very, very little falls in that category for me, while I suspect that a good deal more stuff falls in that category for Orin.

Related Posts (on one page):

  1. On Legal Doctrine, and Teaching Law:
  2. A final (for now!) word on "on teaching law"
  3. On Teaching Law, II:
  4. On teaching law:

Improving Forensic Evidence Analysis:

Roger Koppl wants competition:

How can we preserve the usefulness of forensic evidence while protecting the public when it breaks down? The core problem with the forensic system is monopoly. Once evidence goes to one lab, it is rarely examined by any other. That needs to change. Each jurisdiction should include several competing labs. Occasionally the same DNA evidence, for instance, could be sent to three different labs for analysis.

This procedure may seem like a waste. But such checks would save taxpayer money. Extra tests are inexpensive compared to the cost of error, including the cost of incarcerating the wrongfully convicted. A forthcoming study I wrote for the Independent Institute (a government-reform think tank) shows that independent triplicate fingerprint examinations in felony cases would not only eliminate most false convictions that result from fingerprint errors but also would reduce the cost of criminal justice if the false-positive error rate is more than 0.115%, or about one in a thousand.

Other reforms should include making labs independent of law enforcement and a requirement for blind testing. When crime labs are part of the police department, some forensic experts make mistakes out of an unconscious desire to help their "clients," the police and prosecution. Independence and blind testing prevent that. Creating the right to a forensic expert for the defense would help restore the imbalance in scientific firepower that too often exists between prosecution and defense. Private labs are subject to civil liability claims and administrative fines, giving them financial incentives to get it right.

Forbes also has a favorable editorial on Roger's argument, including a quote from our very own David Bernstein.


Monday, May 19, 2008

A Great Weekend for Boston Sports:

Although I try to limit the number of sports posts, I can't resist pointing out that it's been a great few days for my favorite Boston sports teams. The Celtics won a decisive game 7 against the Cleveland Cavaliers, despite a brilliant 45 point game by LeBron James. The Red Sox swept a series against the Milwaukee Brewers. Most delightful of all, the Yankees got swept by the cross-town Mets - an event that gives Red Sox fans almost as much pleasure as it does for Mets fans. Thank you Mets!

And now Red Sox pitcher Jon Lester has tossed a no-hitter - the first Red Sox lefty to do so since the great Mel Parnell in 1956. Fenway Park, where Lester pitched this game, is an unusually difficult stadium for lefthanders because of the presence of the famous Green Monster in left field.

Paranthetically, it's interesting to note that four different Red Sox pitchers have achieved no-hitters since 2001 (Hideo Nomo, Derek Lowe, Clay Buchholz, and Lester), after the team went 36 years without a no-hitter from 1965 to 2001. Much of the explanation for the change is probably just random variation. Still, it is also true that the Red Sox have had better pitching over the last seven years than during any other comparably long period since the start of The Curse of the Bambino in 1920. It's no accident that the Curse was ended during a period when the Red Sox finally achieved the goal of sustained excellence on their pitching staff.


The (limited?) potential of the California marriage decision:

So the California Supreme Court did it. In an extraordinary, sophisticated, and far-reaching opinion (available here), the California Supreme Court held (1) that the fundamental right to marry protected by the state constitution includes the right of same-sex couples to marry, and (2) that exclusion of same-sex couples from marriage burdens their fundamental interest in marriage and amounts to sexual-orientation discrimination that cannot survive strict scrutiny under the state constitution’s equal protection clause.

Both of these holdings depart in very significant ways from the same-sex marriage precedents so far, including the jurisprudentially questionable Massachusetts marriage decision in Goodridge from 2003. The California Supreme Court decision is by far the best and most well-reasoned opinion so far upholding same-sex marriage claims.

In this post I won’t comprehensively analyze the court’s opinion or all of its possible meanings. That has been done ably elsewhere, including by Eugene (see his informative and succinct initial post here) and by the invaluable Professor Arthur Leonard of New York Law School in several careful and detailed posts about the decision (see here, here, and here). The decision will have an impact in politics, culture, and law. In this post, I’ll discuss the latter: the potential of the California decision to influence marriage litigation elsewhere.

The decision injects new life into the litigation strategy for obtaining same-sex marriage. It does so in the obvious way that litigants will be able to cite it as persuasive authority in other states for its ultimate holding that there is a constitutional mandate to allow gay couples to marry. But it does so additionally because the court that issued it is careful, cautious, and well-respected. More specifically, it could be influential in a case called Kerrigan v. Comm’r of Public Health pending before the state supreme court in Connecticut, which addresses the similar question whether the state may withhold the title of “marriage” to same-sex couples when the state has granted them all of the benefits of marriage under state law. Other states with civil unions – New Hampshire, New Jersey, and Vermont – can similarly expect renewed efforts to persuade their state courts to extend marriage itself to same-sex couples.

A possible limiting factor on the influence of the California decision is that it arose in the unusual context of a state that had already granted all of the substantive rights of marriage to gay couples under the state’s domestic partnership laws. The California court emphasized this point throughout the opinion, including in an unusual footnote in which it suggested in dicta that it might have returned the issue to the state legislature for initial consideration and resolution if the state hadn’t previously enacted a comprehensive domestic partnership scheme for gay couples. Op. at 47 n. 27.

Having created nearly complete state recognition for gay couples, California was left to defend the notion that it was justified in withholding the word “marriage” from these families based solely on the traditional definition of marriage as the union of one man and one woman. None of the usual state interests in procreation and child-rearing that have been advanced in other cases were available to the state attorney general, since the state had already surrendered any such rationales through its comprehensive domestic partnership scheme. So the state lost. (As I’ve argued before, and as Eugene points out in his slippery slope post, the holding provides political ammunition to opponents of legal rights for gay families who will warn state legislatures against moving toward any recognition lest state courts require the state to slide all the way to full marriage.) The same will not be true in litigation in other states where public policy has not erased all substantive distinctions between gay and straight couples, and thus perhaps the influence of the California decision on other state courts will be very limited.

But I think this potential limitation on the impact of the California ruling has more bark than bite for two reasons.

First, the California court held that the fundamental right to marry includes the right of same-sex couples to marry, just as it concluded in 1948 that the right to marry includes the right of inter-racial couples to marry, not that there is a fundamental right to “inter-racial marriage.” Op. at 51. The California court did not hold that there is a new and separate fundamental right to something called “same-sex marriage,” a nuance some critics of the decision have missed. This holding is a first for a state high court in marriage litigation. Most of the courts so far have missed the distinction and have assumed that the claim at issue was for recognition of a new fundamental right to same-sex marriage and then, having under-theorized the issue, they've gone on to reject the “new” right. It’s the same methodology the Supreme Court used in Bowers v. Hardwick, where it rejected a new fundamental right to “homosexual sodomy.” The Supreme Court rejected that approach in Lawrence v. Texas by saying that the issue was whether the conduct was protected by the long-recognized fundamental right of adults to private intimacies. The California court’s frank discussion of the level of generality at which fundamental rights are defined is the most sophisticated yet in a marriage case. See, for example, the discussion of Washington v. Glucksberg and other cases at pp. 70-72.

However one feels about this distinction between a narrow and broad characterization of the claimed right, the California court’s conclusion about the inclusion of gay couples within the pre-existing fundamental right to marry does not itself depend on whether the state has previously created a status for them substantively approximating marriage. The decision depends instead on what the California court called the substantive interests in personal autonomy, dignity, happiness, and familial fulfillment protected by the right — interests that gay families fully share with heterosexual ones.

Nowhere in its discussion of the substantive importance of the right to marry does the California court rely on the creation of domestic partnerships. Gay couples, like straight couples, have these interests regardless of whether the state has acted to protect them in some way. Thus, says the court:

[O]ur reference to numerous statutes demonstrating California’s current recognition that gay individuals are entitled to equal and nondiscriminatory legal treatment (ante, fns. 46, 47) does not suggest that an individual’s entitlement to equal treatment under the law — regardless of his or her sexual orientation — is grounded upon the Legislature’s recent enactment of the Domestic Partner Act or any other legislative measure. The capability of gay individuals to enter into loving and enduring relationships comparable to those entered into by heterosexuals is in no way dependent upon the enactment of the Domestic Partner Act; the adoption of that legislation simply constitutes an explicit official recognition of that capacity.

It would be surprising for a court to hold explicitly that the legislature expanded by statute the substantive scope of a fundamental constitutional right. The legal realist would observe that, whatever courts say they are doing, this is in fact what does happen. The interpreation of spacious provisions about “due process” and “equal protection” often rests on empirical learning, experience, and evolving understanding such that this broad constitutional language is applied to new contexts in ways that would have seemed strange at the time these provisions were enacted.

The California court concludes that the state’s legislative domestic-partnership enactments have not created a new constitutional right but are a confirmation and official recognition of an underlying truth about the equal needs and capacities of gay couples and families. So even if California had not enacted the domestic partnership laws for same-sex couples, the California court would have concluded under its own logic that they were included within the fundamental right to marry. This holding should have some influence on courts in other states.

Second, the holding that excluding gay couples from marriage is sexual-orientation discrimination and that such discrimination cannot survive strict scrutiny also does not depend on whether the state previously enacted domestic partnership laws. If the substantive right of marriage, and the dignitary interest in having the relationship called “marriage” by the state, cannot be denied on the basis of sexual orientation it should not matter that the state has left gay families completely without legal protection or has seen fit to protect them in all substantive ways but withheld the title marriage. Indeed, if the state had refused to give gay couples any protection under state law, or had given them only very little protection, the affront to equal protection principles under the court’s reasoning would be even greater. The equal protection holding, quite apart from the fundamental-right holding, has potential to influence sister state courts in future marriage litigation.

None of this means that courts in other states will follow the California decision. They are free to reject it. They can rely on the larger number of state high courts that have rejected claims for same-sex marriage. They can say that California is unusual in its legal development toward the recognition of gay families. They can distinguish their own precedents from the California precedents. As a practical matter, they may feel pressured to rule against same-sex marriage because they face elections. My prediction is that we will not see an avalanche of gay-marriage victories in states across the country. California was one of the last hopes of the gay-marriage litigants, who have lost in many states where the state judiciary was thought to be sympathetic. But, as an analytical matter, California's supreme court has set the bar higher than ever before.

There are many more facets of this long opinion that are worth consideration, including the California court’s use of secondary authorities (which will thrill some of those authorities and dismay others), its analysis of the sex-discrimination argument for gay equality, its first-in-the-nation holding that sexual-orientation discrimination should be subjected to heightened scrutiny, its holding that the distinction in nomenclature between “marriage” and alternative statuses like “civil unions” or “domestic partnerships” is a constitutionally significant one, and its elaborate refutation of common policy arguments against gay marriage. There are fascinating and very complex political and legal questions raised by the proposed state constitutional amendment in California that would limit marriage to one man and one woman. Also, because California, unlike Massachusetts, has no residency requirement for marriage, there are legal issues that will be raised by gay couples living in other states who travel to California to get married. And of course there is the human side of this story, noted by Eugene, affecting the aspirations of thousands of gay families in the state of California. I hope to address some of these and other issues in future posts.


Proposition 98 and Rent Control - the Policy Issues:

Much of the opposition to Proposition 98 - the only one of the two California initiatives taht will be voted on June 3 that will actually protect property rights against eminent domain - has nothing to do with takings. Instead, it is focused on the provision of Prop 98 that would phase out rent control. In this post, I argue that this opposition is misguided. If enacted, Prop 98 will actually have only a modest effect on rent control in California. Even if you think that rent control is a boon to poor tenants, it is important to recognize that this group has far more to gain from Prop 98's protection against eminent domain than it stands to lose from its rent control provision. Moreover, if Prop 98 does succeed in abolishing rent

If time permits, I will do a follow-up post on the political aspects of the rent control provision, where I will argue that including it in Prop 98 was a tactical mistake by the initiative's sponsors. Here, I focus on the policy merits.

I. The Modest Impact of Prop 98 on Rent Control.

One of the key reasons why Prop 98 is likely to have only a minor impact on rent control is that most California cities are already forbidden to enact rent control ordinances under Sections 1954.50 and 1954.53 of the 1995 Costa-Hawkins Rental Housing Act. However, the Costa-Hawkins Act does exempt those California cities that already had rent control laws in 1995, which include major metro areas such as LA and San Francisco. Even in these areas, the impact of Prop 98 will be less significant than some opponents claim because Prop 98 exempts current tenants of rent-controlled housing units. Thus, it is not true that anyone will be "thrown out on the street" as a result of Prop 98's anti-rent control provisions.

Even more important, the rent control aspect of Prop 98 will be easy to reverse if California voters want to do so. The California constitution is easy to amend by referendum initiative, as numerous past examples show. Given the popularity of rent control, a pro-rent control initiative could likely be passed on during the next election cycle in 2010. In the meantime, very few tenants will actually be affected by Prop 98's rent control provisions because current tenants are grandfathered in. Local government and urban planning groups strongly support rent control, and they would have both the money and the incentive to put a pro-rent control initiative on the ballot if Prop 98 passes. These groups, of course, were easily able to find the money to sponsor Proposition 99, the anti-property rights initiative they put together to counter Prop 98.

This point is crucially important. If you oppose Prop 98's rent control provision because you believe that rent control is an important protection for poor tenants, you have to weigh the anti-rent control aspects of Prop 98 against the important protections it offers to poor tenants against eminent domain. As I explain in my recent LA Times op ed, the use of eminent domain routinely expels numerous people - most of them poor - from their homes, and the rival Proposition 99 will do nothing to protect them. Indeed, Proposition 99 specifically excludes tenants from even the very minor protections it would provide for homeowners. Because of their political weakness, the poor are routinely targeted for condemnation. Since World War II, some 3 to 4 million people (most of them poor minorities) have been expelled from their homes as a result of "urban renewal" and "econoimc development takings" (see pg. 269 of this article for the data). As an Institute for Justice study points out, California is no exception to this pattern and is in fact "one of the most active states in condemning properties for the benefit of other private parties." Overall, poor tenants have far more to gain from Prop 98's protections against eminent domain then they might lose from its rent control provision. And this is true even if you believe that rent control is good for tenants on balance.

II. Why Rent Control is Poor Policy.

To the extent that Prop 98 might succeed in undermining rent control, this is actually a good result. Like other price controls, rent control reduces the quantity and quality of the good in question. If apartment owners can't charge market prices for their units, they are likely to put fewer apartments on the market and take worse care of the ones they do offer for rent. That is why jurisdictions with rent control - including in California - often suffer serious housing shortages. All of this is basic economics, and is broadly accepted by most economists from across the political spectrum. If you want a more detailed statement, see this essay on rent control by economist Walter Block, in the recently published Concise Encyclopedia of Economics. As Block points out, rent control is opposed by the overwhelming majority of American and Canadian economists (over 90 percent), including liberal ones.

There are many far better ways to help low-income tenants. For example, as I explain in this post, zoning regulations artificially increase the costs of housing in many urban areas. California cities have some of the harshest zoning laws in the country. Cutting back on restrictive zoning laws would help poor tenants far more effectively than rent control.

If you prefer a more active government role in helping the poor, rent control is still the wrong choice. The government could instead subsidize rental payments for the poor (as some states already do), or give them tax breaks on rent (as many states do, though I don't know if California is one of them). The government could also subsidize the construction of low income housing. All of these alternatives are superior to rent control because they don't have the negative side effect of reducing the quantity and quality of available housing. In addition, unlike rent control - which is often exploited by tenants who are far from poor - the benefits of these alternative policies can be targeted to the poor tenants who actually need them.

The alternatives are also far more just than rent control. If society has an obligation to subsidize housing for the poor, there is no reason to arbitrarily impose this burden solely on apartment owners who rent to poor tenants. The costs should instead be shared by all taxpayers or at least by all of the relatively affluent. To the extent that rent control does succeed in helping poor tenants, it does so only by arbitrarily singling out a single social group to bear the cost. Most landlords who rent to the poor are not particularly wealthy themselves, and there is no reason to force them to bear the full cost of a societal obligation that should be shared by all of us.


New Dean of Columbia's School of International and Public Affairs:

If you want to be dean of Columbia's SIPA, you should

(a) invite Iranian president Mahmoud Ahmadinejad to campus and announce that you would "certainly" have invited Adolf Hitler as well, resulting in a public relations debacle for your university;

(b) sign a petition calling for divestment from Israel.

(c) apologize for a high-level Communist Cuban official who served with Castro since before the revolution by drolly noting noting that "many decent and honorable people in Cuba are Communists. They work in government agencies, schools, laboratories, and clinics to improve the lives of their fellow citizens." UPDATE: And with regard to the official's political perspective, state, "I respect his convictions."

(d) all of the above.

Answer: (d), of course.


Not FREE TO CHOOSE . . . what to eat.--

MJ at In the Pines writes about Obama’s latest gaffe:

Obama implies the government should control how much you eat...what?! . . .

WASHINGTON (AFP) — Barack Obama set his sights on November's general election Saturday as he campaigned in Oregon, where he hopes to declare victory in the race for the Democratic presidential nomination.

Pitching his message to Oregon's environmentally-conscious voters, Obama called on the United States to "lead by example" on global warming, and develop new technologies at home which could be exported to developing countries.

"We can't drive our SUVs and eat as much as we want and keep our homes on 72 degrees at all times ... and then just expect that other countries are going to say OK," Obama said.

"That's not leadership. That's not going to happen," he added.

That's pretty scary, isn't it? He implies that the government should have control over what people eat, and suggests that it should be at the bidding of foreign nations?

It doesn't seem strange anymore that he would allow the whole calling a reporter "sweetie" debacle to become a big deal. Anything to take the attention away, eh?

It seems as if Obama is making a verbal gaffe every few days. He's quickly approaching Dan Quayle-George W. territory. If the TV talk shows treated Obama's gaffes the way they treat Republican gaffes, Obama's recent confusion about 57 states and where Kentucky is located would be staples by now (I suspect that as many people know that there aren't 57 states as know how to spell "potato").

As Glenn Reynolds might say: "They said that if Bush were elected president politicians would try to take away our most basic rights — and they were right!"

UPDATE: Some commenters below seem to think that I believed that Obama has plans to restrict food choice. No, he made a gaffe and said something stupid — as we all do from time to time. As with George W. Bush and Dan Quayle, this gaffe may reveal something deeper about the way Obama's mind works — or it may be a simple mistake.

Whether revealing or not, Obama's string of small verbal gaffes in recent weeks would be a comedic drumbeat if a Republican had made them.

2d UPDATE: The sarcastic Tim Blair seems to think it's an example of wooly-headed environmentalism:

After all, Agence France-Press thought Obama’s remark so unremarkable they buried it way down at paragraph 13, beneath searing lead pars about “setting his sights on November’s general election” and “hoping to declare victory in the race for nomination”.

You’d imagine a presidential candidate telling voters to go hungry for Gaia might be worth a mention at a point in the story before readers get bored and head for the nearest drive-through.

It’s such a perfect example of environmentalism’s religious component that Obama - who sometimes gives the impression that he’s running for the office of Jesus - really should have delivered it on Sunday, by which time he was addressing a crowd of 75,000 in Portland.


What Will Happen to California Same-Sex Marriages if California Voters Ban Same-Sex Marriages in November?

Let's say that the California Supreme Court doesn't stay its decision -- and I doubt that it would find a legal justification to do so -- but let's say that the California voters reverse that decision in November, by enacting a state constitutional amendment that reads, "Only marriage between a man and a woman is valid or recognized in California." What might happen to same-sex marriages that took place in the months before the amendment becomes effective?

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause ("No state shall ... pass any ... Law impairing the Obligation of Contracts ....").

I highly doubt that this will happen. According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. Future marriages, preexisting marriages, in-state marriages, out-of-state marriages -- all are valid and recognized only so long as they are between a man and a woman. And the Contracts Clause likely won't affect it, since it's been held not to apply to marriage contracts (see Maynard v. Hill, 125 U.S. 190 (1888); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)), which is why statutes authorizing divorces have been allowed even as to marriages that had been entered into when divorces were not available.

Perhaps the result might be different if there is language in the initiative summary, or the supporters' arguments, that states the initiative will only apply to marriages entered into after the initiative. But I doubt the initiative's backers will make such statements in the ballot pamphlet, or that the state authorities will summarize the initiative this way.

2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage. The proposed initiative doesn't purport to bar such domestic partnerships, and it would make sense to treat such invalidated marriages as domestic partnerships, since this is the result that seems most likely to effectuate as much of the married couples' intentions as possible. In a sense, this would be similar to what courts do when they invalidate legislation on constitutional grounds, including in the same-sex marriage case itself: Since the legislation can't be literally applied, they tend to try to find the solution that the legislature would likely have preferred had it anticipated the court decision.

In the same-sex marriage case, for instance, the court had to implement its equality decision by choosing between treating same-sex marriages as "marriages," and concluding that under state law no marriages could be labeled "marriages." (Recall that even the right-to-marry part of the court's decision left open the possibility that a legislature could simply not use the label "marriage" for any relationship.) The court chose to treat same-sex marriages as marriages, reasoning that "it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation." The actual legislative intent of the legislators plus the voters couldn't be perfectly implemented because of the court's constitutional ruling, but the court tried to implement it as closely as possible. One could argue that courts should do the same as to private same-sex marriage decisions invalidated by a state constitutional amendment.

On the other hand, I suppose there might be some same-sex married couples who might take a "marriage or nothing" view, so as to them changing the marriage to a domestic partnership might not reach the result they prefer; maybe there would even be so many that the judgment about what is "more consistent with the probable [individual] intent" becomes unclear. More importantly, there are specific statutory provisions dictating what it takes to create a domestic partnership. A court might well conclude that, unless these formalities are complied with, the domestic partnership can't be said to exist, even if a different set of formalities required for a marriage -- a now-invalidated marriage -- have been complied with.

Given this, I'm not sure how likely a court would be to take this approach; I'd love to hear those who know more about California judicial practices in similar scenarios might be (though note that no scenario has been quite like this one). Note also that the backers of the initiative might well make statements in the ballot pamphlet endorsing this solution -- since such statements might give the initiative more support without deeply offending its advocates -- and those statements might influence the judges deciding how to implement the initiative once it's enacted.

3. A third option is that they will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership (on a belt-and-suspenders theory). I wonder, though, whether existing California marriage and domestic partnership law would allow this. My sense is that it should be interpreted to allow this (since this is hardly the same as marrying one person but then becoming domestic partner with another, which is not allowed), but I'm not positive.

4. Finally, it's possible that the legislature will step in, either right after the enactment of the initiative or even before it, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people's preferences, and I see no reason why it would be unconstitutional. But I'm not sure that it's going to happen.

In any case, just some tentative thoughts -- I'd love to hear yours.


[Peter Spiro, guest-blogging, May 19, 2008 at 5:07pm] Trackbacks
The End of America:

Greetings to Volokh Co-Conspirators, and thanks to Eugene for the opportunity to post a few thoughts on my new book, Beyond Citizenship: American Identity After Globalization. I’m a regular over at the international law blog Opinio Juris, with which I think many of you will be familiar, but the book is oriented more to constitutional and political theory, so I’m glad to have the audience here as well.

The book is very much intended to provoke. The bottom line, only somewhat overstated: American identity is unsustainable, and citizenship practice proves it.

Citizenship practice in the sense of the legal regime governing the status of citizenship: the book examines birthright citizenship, naturalization, dual citizenship, and the rights and responsibilities that singularly attach to citizenship (or not), all in both historical and contemporary perspective. From there it confronts the prevailing theories of American national identity, and finds them all wanting in the face of globalization.

A major theme is the declining significance of territory and how that undermines a central premise of America’s citizenship regime. The acquisition of citizenship has been correlated with territorial presence. That’s most obviously true of birthright citizenship: if you are born in the territory of the United States, you are a citizen for life, no other questions asked.

But it’s also true about naturalization. The core requirement for acquiring citizenship after birth has been residence, dating all the way back to the first naturalization statute in 1790. After bobbing around in the Republic’s early years, the default durational residency requirement has been five years, reduced most notably to three in the case of spouses of US citizens. Naturalization applicants must also show English language capacity and memorize some facts of US history and government, but those requirements are subject to various waivers. By contrast, applicants can't game the residence requirement.

So citizenship is mostly about being here.

That made sense as a historical matter. Whatever it has meant to be American, one can have been expected to discover, learn, and incorporate it through the contacts of everyday life. In the context of birthright citizenship, the premise has been that birth in the United States would translate into a life in the United States. With naturalization, the immigrant would have been expected to pick up American traits, of culture and politics, through the five years residence. The reduction for spouses fits in to this approach: you get it more quickly through pillow talk than out on the streets.

Today, however, the territorial premise looks shaky. Why assume that the person born here will spend the rest of her life here? The rule of jus soli is a strange one, if you think about it: why should location at the instant of birth determine one’s status for life? In an era of growing circular migration flows, more individuals are settling in countries other than that of birth. (Insert Yaser Hamdi as poster child here.)

As for naturalization, it is now possible to be here, and not be here. One can as a member of many insulated immigrant communities be physically proximate but no closer than one was before entry. Globalization has transformed the geographies of human community.

In these respects, the birthright citizenship and naturalization regimes are overinclusive. Many become members who have no organic connection to the existing citizenry.

That might make for a strong argument for raising the bar to citizenship. But as I'll discuss in my next post, that's not likely to happen, nor should it. Either way, the national community becomes increasingly incoherent, with important implications for the nation-state as a location of governance going forward.


Peter Spiro, Guest-Blogging:

I'm delighted to report that Prof. Peter Spiro (Temple) will be guest-blogging here this week. Prof. Spiro has written extensively on constitutional law and international law, for instance in Treaties, International Law and Constitutional Rights, 55 Stanford Law Review 1999 (2003), and Globalization and the (Foreign Affairs) Constitution, 63 Ohio State Law Journal 649 (2002). His new book, Beyond Citizenship: American Identity After Globalization, has just been published by the Oxford University Press; Prof. Spiro will be blogging mostly about the matters he discusses in this book.

I expect there'll be much in his posts with which I'll disagree (see here, for instance, for a hint of some of the differences between Prof. Spiro's worldview and mine). But I'm sure the posts will be very interesting, both to me and to our readers.


Deception in the Political Struggle over California Propositions 98 and 99:

Some commenters on my previous posts on this subject claim that Proposition 98 (the California eminent domain referendum proposal that I support), is as much or more deceptive than Prop 99, the one that I criticized in my LA Times op ed and elsewhere for undermining property rights under the guise of protecting them.

Deception is a common political tactic, especially in a world of largely ignorant voters. I don't claim that the pro-98 campaign is squeaky clean on this score. But it is far less dishonest than the Pro-99 effort.

The crucial distinction between the two is that Prop 98 really would achieve the objective which is the main stated goal of its supporters: banning Kelo-style "economic development" takings and other similar abuses. To my knowledge, no expert commentator on either side of the issue denies this. By contrast, for the reasons stated in my op ed, Prop 99 will not provide any real protection for property owners against takings, despite the sponsors' disingenuous claims to the contrary. Moreover, it would actually undermine protection for property rights by blocking implementation of Prop 98 even if the latter passes. A proposed law that does what sponsors say it will do is surely less deceptive than one that not only won't achieve its supposed objectives but will actually undermine them.

Critics of Prop 98 claim that it is deceptive because, in addition to limiting takings, it also forbids the enactment of new rent control laws and phases out old ones as current tenants of rent-controlled apartments die or move out. In an upcoming post (if time permits), I will explain why this aspect of Prop 98 is likely to have only a limited impact if enacted - and a beneficial one at that. I will also argue that the inclusion of rent control in the proposal was probably a tactical error by the sponsors. Here, I focus solely on the issue of possible deception.

The sponsors of Prop 98 are indeed guilty of packaging a relatively unpopular proposal (phasing out rent control) with a far more popular one (protecting people against takings), and then emphasizing the latter far more than the former in their public statements. This standard political ploy is routinely used by both liberal and conservative groups. Even so, it may be objectionable, and it may be an effort to exploit political ignorance (because many voters might not know about the rent control provision in Prop 98). However, to my knowledge, the sponsors of 98 have never denied that their initiative would phase out rent control. Unlike the Prop 99 sponsors, they aren't lying about the effects of their proposal, but merely emphasizing the more popular ones and downplaying those that are less so.

Ultimately, I think that Propositions 98 and 99, like other proposed laws, should be assessed based on their likely effects, not on the ethics of their supporters. If I thought that Prop 99 was an improvement over the status quo, I would support it despite the deceptive tactics of its sponsors. The main point of my op ed was to outline Prop 99's substantive flaws, and (more briefly) to explain how they came about (because of widespread political ignorance, which the Prop 99 sponsors have effectively exploited). In real-world politics, there are few if any proposals promoted only by completely honest tactics. Prop 99 is unusual only in so far as it is a particularly brazen effort to use deception to promote a law that is intended to achieve the exact opposite of its stated objectives.


Supreme Court Recognizes Solicitation / Offer to Commit Crime Exception to the First Amendment:

Today's U.S. v. Williams opinion might seem like a child pornography case; but the key (though not unexpected) holding is that there is a First Amendment exception for solicitation of crime or offer to commit a crime, see Part II-B.

This is not the same as the "incitement" exception, which bars only speech that's intended and likely to produce imminent lawless conduct. Rather, it's an exception that covers a proposal to engage in specified illegal activity, even if the activity is to happen at some unspecified time in the future, and even if the activity isn't likely to happen. "Please help me out of my marital problems, my friend, by killing my wife" wouldn't be incitement, for instance, but it would be solicitation. Likewise, "please help me out of my marital problems, my friend, by shooting my wife right now" probably wouldn't be incitement if it was highly unlikely to succeed, but it would also be solicitation or attempt (some solicitations are punishable as attempts). Solicitation to commit a crime is generally outlawed, but of course criminal laws have to pass muster under the First Amendment. Williams holds that this is indeed so.

From there, the result is pretty straightforward. The statute at issue in Williams bars

knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] ... any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material ... contains
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct ....
Material that's actually covered by subsections (i) and (ii) is constitutionally unprotected, whether under the "obscenity" exception or the "child pornography" exception. The Court read "advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]" as essentially involving solicitation or offer of a specific transaction in a particular item. That the item might not actually be obscenity or child pornography doesn't matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.

So this will make clear that solicitation, offer, and attempt to commit a wide range of crimes -- including the distribution or receipt of child pornography -- is indeed criminally punishable. And, contrary to Justice Souter's dissent (joined by Justice Ginsburg), I don't see how this will materially change the protection offered to distribution of nonobscene pictures that don't actually depict real children, but instead show computer- or hand-drawn children, or adults that look like children: A distributor or recipient may avoid liability under the statute by simply offering or asking for "pictures of adults who look underage" or "computer-generated pictures that look like children."

Such offers or solicitations won't "reflect[] the belief, or [be] intended to cause another to believe" that the material is a visual depiction of an actual child engaging in sex. (Of course, if the material does prove to be actual child porn involving actual children, and the recipient knows or learns that the material so qualifies, he might be liable for possession of actual child porn, but that would be true regardless of the solicitation/offer ban.) And to the extent that such offers or solicitations may be said to reflect a belief or are intended to cause a belief that the material is obscene -- a complicated matter given the vagueness of the term "obscene" -- the problems that the law poses are not materially different from the problems posed by obscenity law in the first place.

So the opinion strikes me as generally quite sound, not much of a change in child pornography law, and an important but fully expected recognition of the solicitation/offer exception. The recognition of this exception requires the Court to define and police the "important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality," the latter of which is protected under Brandenburg v. Ohio and many other cases; but the Court's recognition of this distinction, which I just quoted, and the necessity for such a distinction, leads me not to worry too much about the future on this score. So on balance it's not surprising to me that the result was a lopsided 7-2.

Related Posts (on one page):

  1. Supreme Court Recognizes Solicitation / Offer to Commit Crime Exception to the First Amendment:
  2. Brief Guide to the First Amendment and Sexually Themed Speech:
  3. BREAKING -- Court Upholds Child Porn Law 7-2:

Brief Guide to the First Amendment and Sexually Themed Speech:

I'm writing a post about this morning's U.S. v. Williams decision, and I realized it would be good to lay out this brief guide — it might be helpful for future controversies, too.

I. Obscenity: The Supreme Court has held that the First Amendment does not protect the distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973):

  1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest,"

  2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. U.S. (1977)], [c] sexual conduct specifically defined by the applicable state law," and

  3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards."

Note also that, (4) mere private possession of obscenity can't be constitutionally outlawed, though distribution and even transportation for one's own private use may be. See Stanley v. Georgia (1969); U.S. v. Orito (1973).

II. Child Pornography: The Supreme Court has also held that the First Amendment does not protect the distribution or possession of "child pornography," which basically covers

  1. "visual[] depict[ions]" of

  2. actual children below the age of majority (and not just fictional pictures or pictures of adults who look like children)

  3. "performing sexual acts or lewdly exhibiting their genitals."

See New York v. Ferber (1982); Ashcroft v. Free Speech Coalition (2002) a category that basically covers depictions of actual children in sexual contexts.

III. Distribution of Sexually Themed Material to Minors: The Court has held that the law may bar distribution to specific minors of sexually themed material, even if the material doesn't fall within the above exceptions. The test for such unprotected material is basically the Miller test (see item I above), with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test given above.

IV. Public Display of Sexually Themed Material, Where Minors and Offended Viewers Might See It Alongside Willing Viewers? It's not clear to what extent the government may bar this, at least assuming the material fits within the obscene-as-to-minors framework described in item III — the Court has struck down limits on Internet distribution of such material, but lower courts had upheld limits on non-Internet distribution and display, for instance through coin-operated newsracks. The Supreme Court has also strongly suggested that the display of such material -- including mere nudity and not just obscene-as-to-minors material -- on broadcast television is constitutionally unprotected.

V. Pornography More Generally: Sexually themed material that fits in none of the above categories is constitutionally protected, though the "erogenous zoning" cases allow greater regulations of — though generally not total bans on — bricks-and-mortar businesses, such as theaters and bookstores, that distribute pornographic material to walk-in customers.


Same-Sex Marriage and Polygamy:

I don't have a strong opinion on the same-sex marriage debate. I have followed it casually, here and elsewhere. As a casual observer, I have had one nagging question that I haven't seen addressed, and is magnified by Eugene's post on the slippery slope in the same-sex marriage cases that he mentioned last week.

Here's my thought--the definition of marriage as one man and one woman seems somewhat arbitrary, which is why it is difficult to justify. The primary justification I can see is a Hayekian one of prudential deference to tradition unless there is an extremely strong case for rejecting it. I would distinguish this from what I would understand as a Burkean objection, which I would read as tradition being prescriptive, rather than prudential. But whether this is an accurate distinction is probably a debate for a different day.

So the question is, if you get rid of the "man-woman" prong as largely arbitrary, why does this not lead to getting rid of the "one-one" prong as well? It seems like the new line is just as arbitrary as the old one.

Now my sense is that the courts simply say that they are distinguishable, but don't say why. They seem to simply say that they are different. And as Eugene's post implies, merely saying they are different without saying why doesn't hold up to scrutiny later.

The difference, as is often the case, is that legislatures often draw arbitrary lines, especially under their police power. But courts should be able to articulated a principled basis for their decisions rather than an arbitrary legislative-style line-drawing.

As I said, I don't have strong feelings on this, so my question is purely intellectual--I'd just like to understand better whether a principled line can be drawn here or whether this is largely arbitrary line-drawing.


On rereading, it would probably have been more accurate to characterize the traditional one man-one woman definition of marriage as "conventional" rather than arbitrary ("arbitrary" may suggest a normative characterization that I did not intend), but I think that the general point of my query was apparent to readers.

Related Posts (on one page):

  1. On to polygamy?
  2. Same-Sex Marriage and Polygamy:

Federalist Society Online Debate on Subprime Lending:

Melissa Jacoby, Kathleen Engel, and I have a short Federalist Society "online debate" on the topic of subprime lending.

Links to our underlying scholarly papers are also provided. I've read Kathleen and Melissa's work and find it very informative.


How Many People Would Want To Immigrate to the U.S.?

I haven't blogged much about immigration issues; it's a difficult empirical question on which I have little expertise, and my sense is that it would take more time than I now have to acquire enough expertise to be able to say something useful. So let me ask this question, stressing that it's just a question and not an answer:

Say that we consider largely removing limits on immigration, as I've heard some people suggest, and as was indeed the law throughout much of the nation's history. (Let's set aside narrow limits, such as on people with criminal records, terrorist connections, or easily communicable diseases.) Say also that we will offer these now largely legal immigrants those social welfare benefits that are in fact politically likely — not the bare minimum that some libertarians might like, nor the vast amount that some welfare-state proponents might suggest, but those benefits that are likely: Public education for their children, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like.

Say also that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California. And say that we likewise maintain the various traditional restraints that are in fact unlikely to be politically changed, such as imperfectly enforced minimum wage laws, imperfectly enforced tax laws, imperfectly enforced housing laws, and the like.

Of the world population of 6 billion, how many people are likely to want to come to the U.S., and stay for the indefinite future, under this model? Ten million? One hundred million? More? Less? Is it even possible to estimate this? Relatedly, if one goal of allowing broader immigration would be to avoid the problems caused by illegal immigration, would capping the limit at some number (2 million per year? 5 million per year?) dramatically decrease illegal immigration by offering the prospect of legal immigration to those who stand in line? Or would it increase illegal immigration, as people see more of their acquaintances and family members living in the U.S., and thus conclude that moving here illegally would be easier and less painful than it once was?


Supreme Court Reverses Justice Kennedy: Well, not exactly. But today's opinion in United States v. Ressam does reverse a Ninth Circuit decision by Judge Rymer that considered itself bound as a matter of circuit precedent by an earlier Ninth Circuit case, United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), written by then-Judge Anthony Kennedy.

Fourth Amendments Rights of Previously-Deported Alien Felons

Should a previously-deported alien felon who illegal returns to the country be able to claim the protections of the Fourth Amendment? This is an open question under current Supreme Court precedent.

A few days ago, Judge Crow in the District of Kansas released an informative opinion, which concluded that such persons are not entitled to the protection of the Fourth Amendment.

Judge Crow noted that a burglar, for example, could not claim the protections of the Fourth Amendment to challenge the legality of a search in the home that he was burglarizing. Similarly, a previously-deported alien felon who sneaks back into the country should not be able to claim the protections of the Fourth Amendment.

Judge Crow's opinion reaches the same conclusion that I reached in an opinion several years ago — United States v. Esparza-Mendozo. When my case went to the Tenth Circuit, the Circuit ducked the tricky legal issues. I suspect the appellate courts won't be able to duck it much longer.


Dartmouth VRWC Yadda Yadda:

In the classic Seinfeld Yadda Yadda episode, the hook is that George's girlfriend obscures anything that is inconvenient or embarrassing by trailing off in a vague "yadda yadda" that leaves the hearer to draw the opposite inference from what really happened.

I was reminded of the Yadda Yadda episode in reading the concerns of The Daily Kos about goings-on at Dartmouth and her paranoid characterization of the situation. The post is written by someone styled "Miss Laura." Brian Leiter credulously relied on the Daily Kos post--seriously--in a related post of his to comment on my colleague Stephen Smith and me (Brian, amusingly, appears to be embarrassed in doing so, referring to Daily Kos as "one of the popular liberal blogs" rather than by name). I'm not sure whether Leiter has read either my speech or Stephen's article that he references. I assume that Miss Laura has read them, but she has simply misunderstood or simply misrepresented them.

Here's what Miss Laura wrote to establish her thesis about the supposed VRWC takeover at Dartmouth, quoting from a speech that I gave last fall (this is exactly how she produces the quote):

It's going to be a multigenerational battle; it's going to take a lot of resources, and a lot of struggle. And I think what you have to understand is that those who control the university today they don't believe in God and they don't believe in country.


Secondly we need to think about investing in alternative institutions or simultaneously or alternatively.

Now, it turns out, the "snip" (which is hers, of course) is actually very important because it suggests the opposite of what I actually said. Here's what I actually said (and to explain the verbal fumbling, this was a informal talk I gave at an academic conference, not a prepared speech)--obviously had I known that many people would take my remarks out of context I would have spoken more carefully:

And I think what you have to understand is that those who control the university today they don't believe in God and they don't believe in country. University is their cathedrals. Their entire being, both those who fund it and those who teach within it, are tied up in the universities.

Leaving aside the inelegance of my delivery, what I actually said seems pretty obvious--and not at all what Miss Laura characterizes as my remarks with her strategic "snip."

Dartmouth alum Doug Anderson explained it when the Gang of 12 Trustees sent out a letter to all Dartmouth alumni (mailed at Dartmouth's expense) that contained the same out-of-context quote:

Third, in a display of chutzpah that is striking from a group of trustees that complains that others have "politicized Dartmouth elections" the letters authors proceed to unearth out-of-context quotes from their fellow Trustee (albeit a petition Trustee) Todd Zywiki "saying those 'who control the university today[,] they don’t believe in God and they don’t believe in country.'" Does anyone seriously believe that he was accusing the other Dartmouth Trustees and administration of being unpatriotic atheists? Not anyone sensible. In context the quotation was saying (with rhetorical flourish) that the perpetuation of the academy had become and end in itself that its members defend it against interlopers.... After reading this letter from the trustees, it is hard to disagree one other sentence from Zywicki's talk "The establishment within these universities is vicious."

There are a few other misrepresenatations of my remarks in follow-up discussion of the Kos post that I could discuss in greater detail, but I think you get the idea. For instance, I never condemned the various "-isms" that dominate university campuses today, instead I expressed concern that these have risen to the level of quasi-religious orthodoxies that stifle free speech and academic inquiry. So, far from suggesting a reinstatement of religion or nationalism at the center of the university experience, I stated exactly the opposite--namely that all forms of orthodoxy are contrary to the enterprise of the liberal university, whether those orthodoxies are grounded in religion, nationalism, multiculturalism, or feminism. Amazingly, I've seen emails and comments from some that try to characterize my comments opposite to what I actually said. I'm not sure whether this is an intentional misreading or they just didn't understand what I actually said (if the latter, I note that they never bothered to ask me to clarify my comments), but I don't think that my remarks are even reasonably susceptible to the proffered readings.

For those who are interested in serious commentary on my remarks (which I never intended to be anything more than informal remarks at an academic conference in the first place) see John J. Miller, Steve Balch, Greg Lukianoff, John Leo, Jane Shaw, and Jay Schalin.

As for Miss Laura's (and Leiter's) concerns about Stephen Smith who supposedly "questions evolution," those too are based on a misunderstanding of Stephen's essay, which is here. I can't speak for Stephen but I have read the essay and I think it speaks for itself--and again Miss Laura's misreading creates the confusion here. The basic point of Stephen's essay is that the religious and scientific spheres of life should be kept separate--science does not and should not determine religious questions and religion cannot and should not determine scientific questions. Science simply can't prove the existence or non-existence of God or miracles, for instance, and thus these are questions of belief and faith, not scientific method. If miracles occur--and I'm not arguing here that they do or don't--they are defitionally miracles precisely because the defy the laws of science. More fundamentally, this debate has utterly nothing to do with the theory of evolution, which is susceptible to scientific investigation.

Where I think Miss Laura (and perhaps Leiter too) may be confused is in conflating the question of the validity of the theory of evolution (and so-called "creation science") with that of the creation of life and the universe ab initio. These are fundamentally different questions. I express no view here on those questions, in part because some very thoughtful and serious scientists and others continue to wrestle with difficult questions about whether the origins of life and the universe can be best explained through a wholly naturalistic process. As Harvard astronomer Owen Gingerich observes for instance, "Only gradually did I come to appreciate how magnificently tuned the universe is for the emergence of intelligent life.... There are enough such 'coincidences' to give thoughtful observers some pause. Scientists who are loath to accept a fine-tuned universe feel obliged to take notice." See also Nobel Laureate William Phillips and Jane Goodall.

These question of the origins of life and the universe are fundamentally separate questions from the scientific validity of the theory of evolution. It is a fully coherent intellectual conclusion to fully accept the theory of evolution while believing in God generally or retaining doubts about the plausibility of wholly naturalistic explanations for the existence of the universe or the origins of life. As noted, serious thinkers do grasp that these are different questions. And it is obvious that there is nothing inconsistent with the theory of evolution or science generally to simply say that science and religion occupy different spheres of life and inquiry and it hardly seems controversial to say that they can and should be kept separate. And this is the real point of the essay. I'm not saying here whether I agree or disagree with the argument, I'm just noting the importance of accurately understanding it. Miss Laura apparently has simply misunderstood the central point of Stephen's essay and attributed her own intellectual errors to him.

The larger point here is to illustrate the silliness and paranoia of the whole "vast right-wing conspiracy" business and the errors (and perhaps even dishonesty) on which the claim is founded. It is just an effort to distract Dartmouth alumni from the real question in the current election, which is a referendum on the board-packing plan. Miss Laura's endorsement of the board-packing plan appears to boil down to the idea that if you don't like the outcome of elections then you should simply get rid of elections. I, and the pro-parity slate for the Association of Alumni Executive Committee, disagree.

In the end I retain faith that Dartmouth's alumni are too sensible to be fooled by all of this rhetoric. Consider the comments of Daniel King '02, published on Dartblog:

I am an openly gay man, a teacher, a card-carrying member of the Democratic Party, the ACLU, and the Human Rights Campaign. Heck, I even voted for Bill Bradley in the 2000 New Hampshire primary, Howard Dean in 2004, and am currently one of those “Obamaniacs.” To call me anything near a conservative would be a gross misnomer.

I don’t really think my political leanings should have anything to do with how I vote in the current Association of Alumni elections, nor should it have determined how I voted in the past four alumni Trustee elections. But, according to the slate of candidates supporting the Trustees’ Board-packing plan, it does.


This claim, though, that the current controversy is part of some ridiculous “vast right-wing conspiracy” could not be further from the truth. The real battle going on is one between an overly paternalistic College administration, supported by a rubber-stamp Board of Trustees that has totally abdicated its oversight responsibilities—and, on the other side, loyal alumni from all sides of the political spectrum who wish to not see the value of their Dartmouth degree plummet and to preserve the historic and unique ties that alumni have to our alma mater.

I have been a supporter of the “petition Trustees” since the first petition election in 2004. I, along with a large number of alumni, wished to register my dissatisfaction with the direction of the administration and the complete disconnection of the Board of Trustees.

And an excellent column by current student Nathan Bruschi, published in The Dartmouth last week:

David Shipler’s letter to the editor demonstrates a lot of what is wrong with the expansion plan for the Board of Trustees (“The Conservative Campaign,” May 5). He postulates that the motive behind the AoA lawsuit — designed to maintain parity between elected and appointed members on the Board — is “to allow inroads by a highly publicized and pervasively ideological brand of conservatism.” This encapsulates the perverse logic of those in opposition to the lawsuit — the assumption that we only support democracy insomuch as we agree with those who get elected.

I confess that I once supported the anti-lawsuit position. I remember being happy that the Board was going to expand itself to stop seemingly delusional and disconnected petition candidates from overtaking the Board. I remember being upset when I learned that the supporters of those petition candidates were suing the College. I even briefly joined Dartmouth Undying’s Facebook group. But in the end, it was the anti-lawsuit partisans (not the litigants) who caused me to switch my affiliation. Let me explain.


This is the crux of the argument: Charter trustees are upset because petition candidates with views hostile to theirs keep winning Board seats, and they want it to stop. It would be a downright lie to claim that the current Board “restructuring plan” did not arise in part because of four consecutive petition candidate victories.

Taking drastic action requires impressive rationale, and so far the Board has not made a sufficiently compelling case for adding charter trustees. If anything, the Board endangers its own credibility, as this radical scheme smacks of corrupt bargains and anti-democratic values. By removing one of the few checks on College governance, we ultimately stifle the voices of alumni — the College’s most valuable asset. As a quote etched onto a stone overlooking the BEMA darkly reminds: “Who doth not answer to the rudder shall answer to the rock.”

In addition, one previously-undecided Dartmouth alum told me that he is voting for the pro-parity slate specifically because of the repeated misrepresentation of my remarks that have been made.

Finally, I should also add that Leiter also incorrectly reports that my speech was denounced by the Alumni Association--in fact, it was the Alumni Council, not the Alumni Association. The distinction is important, although Leiter doesn't realize it because of his unfamiliarity with the situation. The Alumni Council is a self-perpetuating unelected body of alumni. The leadership of the Association of Alumni is actually elected by all of the alumni. With respect to the Alumni Council's denunciation of me, the elected leaders of the Association of Alumni condemned the Alumni Council "as reflecting selective outrage out of political motivation, by an organization whose members simultaneously have, in their official capacity, issued condemnations of others in the Dartmouth Community that mirror the stridency of the remarks they condemn." The Association of Alumni Executive Committee has sought to protect the bargained-for rights of the alumni, as favored by 92% of alumni in a poll last year. By contrast, the Alumni Council has aligned itself with the Board in endorsing the Board-packing plan, even filing an amicus brief against the Association of Alumni's lawsuit seeking to enforce the 1891 Agreement. Thus, being denounced by the Alumni Council doesn't amount to quite the rebuke that Leiter believes it does (to say the least).

Doug Kmiec Denied Communion for Obama Endorsement:

My friend Doug Kmiec reports that at a recent mass he was denied communion by the presiding chaplain for his endorsement of Barack Obama for President. This has been an issue much in the news lately because of the granting of communion to several pro-choice politicians at Pope Benedict's mass a few weeks ago here in Washington. And I don't fully understand the details on how these decisions are made (which seem somewhat ad hoc). But even if one supports the logic of denying communion to those like Ted Kennedy and Nancy Pelosi, it is difficult to see how this compares to Doug Kmiec, who has been a tireless and principled opponent of abortion. I disagree with his endorsement of Obama, but I don't think that anyone seriously believes that Doug is supporting Obama because of his position on abortion rather than despite it. I'd like to hear some more details about how this all went down, as Doug's discussion is fairly summary. Apparently this all happened at a conference of Catholic business leaders, so I'd be interested in hearing the impressions of anyone else who was there.

More from Michael Perry at Mirror of Justice.


Here's the views of a canon lawyer who concludes that it was wrongful to deny communion to Kmiec (with links to the relevant Canons).


BREAKING -- Court Upholds Child Porn Law 7-2:

This morning the Supreme Court rejected a challenge to the a federal law prohibiting soliciting the sale or purchase of child pornography by a vote of 7-2. Justice Scalia wrote the majority opinion. Justice Stevens wrote a concurrence, joined by Justice Breyer (both of whom also joined the Scalia majority). Justice Souter dissented, joined by Justice Ginsburg. The opinions in United States v. Williams are available here, courtesy of SCOTUSblog.


Paging Lysander Spooner:

My colleague-to-be (starting next year) J.W. Verrett has a good op-ed on the need for reform of the postal monopoly in the Chicago Tribune here.

I examined on postal reform a bit during my FTC tenure in the context of the postal service's exemption from the antitrust laws, which permits it to engage in chicanery that would not be permitted by private companies. And while I wasn't at all surprised by the expense and inefficiency of the postal service, one thing that I learned that did surprise me is the actual scope of subsidies that the postal service receives. For instance, USPS doesn't pay parking tickets or taxes both of which are a huge expense to companies like UPS. USPS also has the power of eminent domain, which its private competitors lack. See Rick Geddes's essay on postal reform here for a discussion.

I would be remiss, of course, in mentioning postal reform without a shout-out to Lysander Spooner (and Randy's Spooner page with an essay on Spooner's postal entrepreneurship and the "unconstitutionality" of prohibitions on private mails).


On Teaching Law, II:

There's been an interesting discussion in regard to my posting about my "experiment" in using unedited judicial opinions in my classes; though there are lots of interesting questions raised, one in particular, from fellow-blogger Orin Kerr, requires a response. Orin wrote:

I don't think I understand the skill that is being taught. Is the skill how to read through a long document to find the relevant section? If so, is that really a skill that law schools need to teach? Students develop these skills whenever they read; if someone surfs the web or picks up a newspaper, the task of reading is partly the task of filtering through the irrelevant stuff to get to what the reader is looking for. Or so it seems to me.

It may be that law schools don't teach this skill specifically, and some lawyers can't do it well. But I would think that's because schools don't need to teach it, and the lawyers who can't do it probably can't be taught how to do it well.

I couldn't disagree more.

This characterization makes the skill sound trivial - "reading through a long document to find the relevant section." I suppose the skill I'm talking about can be characterized that way - but that's like saying that becoming a scientist is just "being able to sift through lots of irrelevant data to find the patterns." Yes, a critical part of becoming a lawyer is being able to read through a long document - and not any old long document, but a very particular kind of long document, a "judicial opinion" - to "find the relevant section," as you put it. And then, once you've found it, to figure out what the court is saying there and how it bears on whatever it is you're trying to figure out.

Pick any of the cases on my IP syllabus and summarize it for me in a paragraph or two - who won? what was the issue? how did the court resolve it? on what point are the dissenters and the majority disagreeing? were there any facts that were critical to the decision? how were prior cases on point distinguished? etc. I think good lawyers have to be able to do that - maybe not in two perfectly formed paragraphs, but at least in their heads. And they have to be able to do it, as the British say, "at pace" - really fast, one after another after another. Answering virtually any legal question of substance - how does "strict scrutiny" apply to a high school's dismissal of a student for having posted offensive passages on her myspace page? is a work prepared by an employee on his "break time" with materials furnished by his employer a "work for hire"? Is something that appears in a "private" space on the Internet a "printed publication" within the meaning of section 102 of the Patent Act? etc. etc. etc. - means reading lots and lots of cases and figuring out what they mean - whether they're relevant, how they're relevant, how the points they're making can be used in the argument you want to make (or can be used to make the opposing argument).

I'm pretty sure that you, Orin, are damned good at that - perhaps so good that you don't even see any more how difficult a task that is. I'm good at it, too. It is, most emphatically, not something that people just "develop whenever they read," as you suggest. Knowing how to skim through an article in the New York Times to "find the relevant sections" there will help, but it will not in and of itself tell you what the holding is in Arnstein v. Porter. When students walk in the door of any law school, they don't know the first thing about how to do it, and it would be entirely unreasonable for us to expect that they do.

That's the skill I was talking about.


The Bush Administration's Losing Environmental Record:

The Bush Administration appears to lost an awful lot of environmental cases in federal court. That's the impression of many environmental law experts, as reported in this Sacramento Bee story. There has yet to be any systematic study of the Bush Administration's record defending its environmental policy decisions across the board, but it is unlikely the record is all that good. According to the Bee:

Legal victories for Bush's environmental team, however, have been few, particularly in disputes over fish and wildlife.

Kierán Suckling, executive director of the Center for Biological Diversity in Tucson, Ariz., said he was astonished by a tally his legal staff compiled at The Bee's request on outcomes of Endangered Species Act cases.

Of 78 federal court rulings and settlements in species cases resolved since January 2001, the Bush administration won just one: Judges agreed that western gray squirrels in the Pacific Northwest did not warrant protection, according to the center, which filed most of the challenges.

"I asked lawyers around the country, 'Are there any other cases? Have I missed something?' and everyone seems to agree that this is correct," Suckling said.

House Oversight and Government Reform Committee Chair Henry Waxman is also requesting information from the EPA on how it has fared against legal challenges to its rules in the D.C. Circuit.

The Bee article quotes me saying the following: "We can say they have a poor record in court. I'm not sure we can say they had the worst record." My point was that, in some areas, it is not clear that the Bush Administration's legal record is all that worse than those who came before. I would like to qualify this statement (as I did to the reporter). As I explained to the Bee reporter, it was certainly my impression that land and resource agencies (Interior, USFS, etc.) had a worse record defending their decisions in federal court than prior administrations, and it is my impression that these agencies have been less diligent in seeking to comply with statutory mandates than under prior administrations. The ESA numbers cited in the story certainly confirm that impression.

When it comes the Environmental Protection Agency, however, it is not clear to me that the Bush Administration is losing more often than its predecessors. The Bush EPA has lost some big cases, and sought to defend some blatantly illegal policy decisions (see, e.g., here), but the Clinton Administration also had its share of high profile losses, including several cases in which federal courts rejected Clinton policies with strong or dismissive language. In one instance, the Clinton EPA had the same policy decision overturned three times in the D.C. Circuit. So, until I see data showing that the Bush EPA has a worse record than prior administrations, I am inclined to believe that the problem is with the EPA, rather than any specific administration, but the data may well prove me wrong.

UPDATE: Assuming, as I do, that the Bush Administration's preference for less stringent and more industry friendly environmental regulation is not, in itself, sufficient to explain its difficulties in court, then what is the problem? Here is what I hypothesized in a prior post:

This has been a problem within the EPA for quite some time, in administrations of either political stripe. Yet this problem may be compounded by two factors somewhat unique to this administration: 1) the minimal attention paid to environmental policy questions, and 2) an expansive view of executive authority. Combined with the EPA's traditional resistance to statutory constraints, the result is an agency out of control and without adult supervision.


A (Polar) Bear of a Problem:

Last week, the Interior Department announced its decision to list the polar bear (Ursus maritimus) as a "threatened species" under the Endangered Species Act due to the expected loss of polar bear habitat, specifically arctic sea ice, due to global warming. The listing decision and other related documents are available here. This is the first time a species has been listed under the ESA due to climate change, but it might not be the last. More significantly, the polar bear listing could become a powerful weapon for environmental groups seeking more stringent controls on greenhouse gas emissions, as I discuss in this NRO column.


Nuclear Wins from Carbon Controls:

The imposition of caps on carbon dioxide emissions will impose substnatial costs on much of American industry. It will also create substantial winners. Alternative energy producers, such as solar and wind, will benefit, as will lower-carbon fuels sources, such as natural gas. the nuclear power industry is also expecting to profit handsomely from carbon dioxide controls, the WSJ reports.

Nuclear operators stand to gain from greenhouse-gas legislation in two ways. For starters, their plants don't spew carbon dioxide, so they would not have to buy emissions allowances, giving them a competitive advantage over competitors that burn fossil fuels.

In addition, a cap-and-trade system would probably push up wholesale electricity prices in deregulated markets, as coal- and natural-gas-burning utilities jack up prices to recover the additional cost of allowance purchases. In deregulated markets, generators with the highest costs set the market price, so lower-cost nuclear operators could enjoy the higher prices charged by coal- and gas-burning utilities without the higher costs. In states that didn't deregulate their electricity markets, nuclear plants mostly are part of regulated utilities and furnish electricity to utility customers at prices tied to their underlying costs, eliminating the opportunity for such profit.


"Controlled Unclassified Information":

The Washington Post reports that the Bush Administration has created a new category of controlled information -- "Controlled Unclassified Information." The new category will replace "Sensitive but Unclassified."

Sometime in the next few years, if a memorandum signed by President Bush this month ever goes into effect, one government official talking to another about information on terrorists will have to begin by saying: "What I am about to tell you is controlled unclassified information enhanced with specified dissemination."

That would mean, according to the memo, that the information requires safeguarding because "the inadvertent or unauthorized disclosure would create risk of substantial harm." . . .

Such information -- though it does not merit the well-known national security classifications "confidential," "secret" or "top secret" -- is nonetheless "pertinent" to U.S. "national interests" or to "important interests of entities outside the federal government," the memo says. . . .

Left undefined are which laws or policies generated the requirement for protecting such information, and which interests are pertinent. But Bush's memo does refer to the "global nature of the threats facing the United States" and to the need to ensure that the "entire network of defenders be able to share information more rapidly" while protecting "sensitive information, information privacy, and other legal rights of Americans."

The president declared that the purpose of the new classification is "to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information." But some critics described it as continuing an expansion of secrecy in government and a potential bureaucratic nightmare.


My Los Angeles Times Op ed on California Proposition 99 and Eminent Domain "Reform":

In today's LA Times, I have an op ed criticizing California Proposition 99, the eminent domain "reform" initiative sponsored by pro-condemnation interest groups that pretends to protect property rights, but would actually do far more to undermine them. Here's an excerpt:

The U.S. Supreme Court created a huge political backlash when it ruled that local governments could use eminent domain to seize private property and transfer it to other private owners for "economic development." Since the Kelo ruling in 2005, 42 states have enacted limitations on eminent domain — not always effective ones. But like lawmakers in many other states, some California officials are trying to block real eminent domain reform.

On June 3, Californians will vote on Proposition 99, a ballot initiative sponsored by groups representing cities, counties, redevelopment agencies and other pro-condemnation interests. It purports to protect property rights against eminent domain, but it actually provides almost no protection....

Proposition 99 . . . protects only owner-occupied residences against condemnations with the purpose of transferring property to "private persons." That leaves renters — 42% of Californian households — unprotected. If the buildings they live in are condemned, renters can be forced out even if their leases haven't expired. Owners of farms, small businesses and homeowners who have lived in their residences for less than one year also would remain vulnerable.

Even the protection for homeowners covered under Proposition 99 is likely to be ineffective...

Also on California's June ballot is Proposition 98, which really would forbid "economic development" condemnations and other abuses. Absent Proposition 99, Proposition 98 would likely become law — as have anti-Kelo initiatives in 10 other states. Proposition 99 would invalidate any other eminent domain referendum passed on the same day so long as 99 receives a greater number of votes than Proposition 98. Many voters are unlikely to realize this.

Due to tight space constraints, I didn't have room to say much about Proposition 98, the far more effective eminent domain reform initiative that Prop 99 was put on the ballot to block. Fortunately, Tim Sandefur of the Pacific Legal Foundation has recently published an excellent op ed addressing most of the standard objections to Prop 98. The use of Prop 99 to block effective eminent domain reform by exploiting political ignorance is part of a broader pattern common to many states, one that I have discussed in much greaterdetail in this academic article on post-Kelo eminent domain reform.

If time permits, I will have more to say about Propositions 98 and 99 over the next few days. It's hard to fully consider these complex initiatives in a 600 word op ed.


"Stupid Nerds" and School Shootings:

Forensic psychologist and blogger Helen Smith comments on my post on the travails of "stupid nerds," and suggests that stupid nerds oppressed by the high school social hierarchy might be responsible for some of the high-profile schools shootings of recent years:

I wonder if kids who shoot up schools tend to be "stupid nerds" as opposed to "intelligent nerds?" Does prestige for one's intelligence or "genius" protect one from acting out violently? Perhaps--certainly some school shooters felt that they were not living up to their potential--but maybe they knew deep down that they had little potential for doing great things and this pushed them over the edge when combined with bullying.

It seems to me a plausible speculation. Certainly, the Columbine killers and some other school shooting perpetrators seem to fit the "stupid nerd" profile. As far as I can tell, these individuals were "nerdy" enough to be interested in ideas (including various crackpot theories that they used to justify their violent acts), but not enough to actually accomplish anything of note in the academic or intellectual spheres. And of course most shooters do indeed tend to stand low on the high school social totem pole. However, we won't know if the theory really does explain a substantial proportion of school shootings until someone does a systematic study.

I should emphasize that even if Smith's theory is correct, it in now way justifies the shooters' acts. Killing people is not a defensible response to social putdowns. Her theory also does not change the reality that the overwhelming majority of "stupid nerds" aren't dangerous. Even if school shooters are more common in this subgroup than in others, they would still be only a miniscule fraction of the total "stupid nerd" population.

Related Posts (on one page):

  1. "Stupid Nerds" and School Shootings:
  2. The Tragedy of the Stupid Nerd:

Property Rights in Space:

The Boston Globe has a fascinating article on proposals to create private property rights in space (HT: Instapundit). The article discusses several different ideas for allowing private entities to acquire extraterrestrial property rights. I don't have a strong opinion as to the relative merits of these proposals. But I hope the Globe is right to conclude that "there's . . . a growing consensus that some form of space property is inevitable and necessary." As I argued in this post, it would be a terrible mistake to leave all extraterrestrial property as an unclaimed commons or to allow it all to be controlled by government.


The Politics of Structural Constitutional Amendments:

Howard Wasserman has an interesting post on the causes of structural constitutional amendments. I agree with most of his points. For example, history does indeed suggest that structural constitutional amendments tend to happen in the aftermath of a crisis that is perceived as revealing a flaw in the existing constitutional structure. I would add two other key points:

First, structural constitutional amendments are usually driven by political elites. The rationally ignorant general public rarely knows much about or cares about structural issues. It's not just that the public usually doesn't know much about the details of these questions - that is true of most political issues. It's that they don't care much about them either, failing to see the connection between constitutional structure and effects on their own lives. That makes structural constitutional amendments very different from individual rights amendments, such as the Equal Rights Amendment, which many in the general public do often care about intensely, whether or not they know much about its possible effects.

Second, because of the supermajority requirements of Article V of the Constitution (the support of 2/3 of both houses of Congress and 3/4 of state legislatures), structural amendments can only pass if they have overwhelming bipartisan support among elites. Thus, a structural amendment is unlikely to pass if it is seen as benefiting elites from one of the two major parties at the expense of those in the other.

For example, Wasserman mentions the failure to pass an amendment reforming the electoral college after the debacle of Florida in the 2000 election, when many Democrats expressed support for such an effort. The reason for this failure is clear: in the status quo, the electoral college gives a slight advantage to the Republicans because their are more small Republican-leaning states than Democratic ones. Thus, the Republicans benefit from the electoral college rule that disproportionately weights the votes of small states (each of which get two extra electoral votes for their two senators even if their population would normally give them only one or two electoral votes instead of the current minimum total of three). For this reason, Republican political elites are likely to oppose efforts to pass an amendment abolishing or restructuring the college. Knowing that any such effort is doomed to failure, the Democrats are unlikely to seriously push for it. If the general public cared about the issue, the outcome might be different, because they could potentially force the Republicans to give in, or at least give the Democrats an incentive to push the issue in order to attract public support. But since most voters either don't know or don't care about it, the Dems haven't made a serious effort to press for an anti-electoral college amendment.

By contrast, elites in both major parties had reason to support the Twenty-Second Amendment (limiting the president to two terms) and the Twenty-Fifth Amendment (revamping the rules of presidential succession), the two most recent important structural amendments that passed. As Neal Devins and I discuss in this article, the Twenty-Second Amendment was initially driven by Republican anger at FDR's unprecedented violation of the norm of only serving two terms. But many Democrats could also support the proposal because, going forward, there was no reason to believe that Democratic presidents would be hurt by it more than Republicans. And political elites from both parties could appreciate the potential dangers of allowing presidents to accumulate quasi-dictatorial power by serving unlimited numbers of terms. Republicans especially feared such accumulation by Democratic presidents; Democrats especially feared it from Republican ones. Thus, enough Democrats were willing to swallow the apparent posthumous rebuke to FDR to enable the amendment to pass. The Twenty-Fifth Amendment was even more clearly bipartisan, since neither party had anything to fear from it, and both could appreciate the need to provide more effectively for the death or incapacity of a president in the wake of the trauma of Kennedy's assassination - the event that triggered the amendment's passage.


Sunday, May 18, 2008

Graduation: My co-blogger Jonathan Adler notes below that today is commencement day at Case Western Reserve University and many other schools; one of those other schools is George Washington University, where I teach. Congratulations to the Class of 2008!

Sunday Song Lyric: Today is commencement at Case Western Reserve University and many other schools. Accordingly, I suppose I could post some saccharine graduation song. Instead I thought I'd post a classic song with at least some tangential connection to education: "Teach Me Tonight" by Gene De Paul and Sammy Cahn. I believe the first recording of the song was by Brenda Lee, but its been covered by tons of folks (including Frank Sinatra, who had his own added lyrics), and it's a great song. Here's how the lyrics begin:
Teach me tonight
Did you see that I've got a lot to learn?
Well don't think I'm trying not to learn,
Since this is the perfect spot to learn -
Teach me tonight.

Let's start with the ABC of it,
Roll right down to the XYZ of it
Help me solve the mystery of it,
Teach me tonight.
Here are the full lyrics and here's a classic Dinah Washington recording. You Tube has many more versions of the song.

Dann Fallout:

The Columbus Dispatch reports on how disgraced Ohio Atorney General Marc Dann's mismanagement of his office could make the state liable in several expected and potential lawsuits.


The Tragedy of the Stupid Nerd:

Amber Taylor writes:

Is there anything more pathetic than a stupid nerd? Even our largely anti-intellectual society grudgingly makes room for the geeky genius. His awkwardness is offset by his keen intelligence. He has role models in the sciences, letters, and film. His academic triumphs balance out those of the jocks on the sports field. But the outcast of outcasts is the stupid nerd. A failure at the very things that are emblematic of his adolescent tribe, the dumb nerd is every man's goat.

Back in high school, I developed the theory that the people at the very bottom of the school social hierarchy are those who act like nerds even though they don't have much academic or intellectual ability. They, not the intelligent nerds supposedly oppressed by jocks, are the true underclass of the high school world. Whereas smart nerds derive at least some prestige and acceptance from their intellectual achievements, the relatively dumb ones suffer all the costs of being perceived as nerds without any of the benefits. It's interesting that Amber has independently arrived at the same conclusion.

Stupid nerds of the world, despair. You probably won't lose your chains even if you somehow manage to unite!

NOTE: As Amber points out in her post, "stupid nerd" might be seen as a contradiction in terms. However, I use the term to indicate a person who acts "weird" in a nerdy way even though he isn't actually unusually smart or intellectual.

Related Posts (on one page):

  1. "Stupid Nerds" and School Shootings:
  2. The Tragedy of the Stupid Nerd: