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Saturday, May 31, 2008

Defending DDT's Defenders:

Roger Bate of the American Enterprise Institute and co-founder of Africa Fighting Malaria responds to an attack from Tim Lambert and John Quiggin seeking to paint DDT defenders as stooges of the tobacco industry.

John Quiggin and Tim Lambert purport to restore Rachel Carson’s reputation, trashing me and an organisation I helped found, Africa Fighting Malaria, in the process. Their article amounts to a half-baked conspiracy theory that breaks down with a cursory review of the facts. The authors’ hope is that by branding me a tobacco lobbyist and claiming the tobacco industry is bankrolling the campaign for DDT, they will convince others to dismiss DDT advocates as industry stooges. They are sadly mistaken. . . .

The reality is that DDT is probably the most useful insecticide ever used for public health. . . . DDT still has a place in malaria control, one that has expanded because of sensible recent policies from WHO, the Global Fund and the US government. Quiggin and Lambert are wrong to dismiss WHO’s 2006 support as a restatement of old policy. While DDT has been a WHO-approved insecticide for decades, for many years WHO officials did not promote its use, instead tending to push for insecticide-treated nets. Following WHO statements supporting DDT, some developing-country governments, such as Uganda, have been emboldened to say they want to spray the chemical, even in the face of opposition from local business lobbies. . .

I first proposed the idea of a pro-DDT campaign because I thought it was scientifically valid; I still do. Furthermore, I thought WHO and other international bodies were dangerously applying environmental regulation; they still are (the 1997 anti-insecticide World Health Assembly resolution still stands). Having spent time in malarial areas (sometimes under bed nets) and having had the disease myself, I welcome any intervention that saves lives. DDT remains underused. It is no panacea, but it is still the most cost-effective method of malaria prevention in most locations. I wish the tobacco industry had funded the campaign I proposed back in 1998, but they didn’t. Quiggin and Lambert’s attempt to rewrite history will not change it. DDT has saved innumerable lives. Stifling Africa’s efforts to use it against malaria has likely cost many more.

Lambert responds with more guilt-by-association arguments (though he suggests a more substantive response will follow). Quiggin has a more substantive response, but it does not contest much of anything Bate has to say.

For what it's worth, I've known Bate for fifteen years and can verify his recounting of events. Like many working on environmental risk issues in the 1990s, Bate sought funding from industry sources, but this was always to promote his — not their — message. That some industries supported his work does not diminish its worth. Bate's work with the IEA and ESEF in Europe, and AEI and Africa Fighting Malaria, can and should be evaluated on its own terms. Indeed, it is telling that Bate's critics tend to spend more time attacking his funding sources — both real and imaginary — than the substance of his work.

UPDATE: J.F. Beck does some digging into the myth of a widespread, tobacco-initiated campaign to compare Rachel Carson to Hitler, and finds more links to Lambert and Quiggin than to folks actually making the outlandish (and offensive) Carson=Hitler comparison.

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Our Friends the Saudis:

Apparently criticizing prison conditions is enough to get a Saudi academic arrested. (Link via Henry Farrell)

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Friday, May 30, 2008

May a Man Marry His Adopted Daughter's Adopted Daughter in Arkansas? How About Kentucky?

That may sound like a joke, but it's exactly what the Sixth Circuit had to consider (among other things) in U.S. v. Dedman. The answer seems to be no in Arkansas, yes in Kentucky, and no (according to Arkansas courts) as to whether there is a constitutional right to enter into such marriages -- though I learned, to my surprise, that Israel v. Allen, 577 P.2d 762, 764 (Colo. 1978), had held there was such a right, even as to marriages between adopted siblings, and though the Sixth Circuit ended up not squarely confronting the constitutional question.

For more on how the case came to federal court, read the opinions. My tentative thought is that the dissent probably has the better view on the sufficiency of the evidence question. Thanks to How Appealing for the pointer.

UPDATE: I originally erroneously said that the Sixth Circuit had upheld the constitutionality of the ban on marriages between people related by adoption; I've revised the post above to correct that. That's what I get for blogging from memory, even day-old memory. Thanks to commenter Doug Sundseth for correcting me on this.

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That Your Bag, Ma'am?

Yesterday the U.S. Court of Appeals for the Sixth Circuit handed down an interesting divided opinion in a search-and-seizure case in United States v. Purcell. Here's the summary from Judge Karen Moore's majority opinion.

In this case we are asked whether the discovery of men’s clothing in a bag that a female claimed to own erases for future bags the apparent authority that justified the officers’ warrantless search of the first bag, thereby making a subsequent search illegal. We hold that the discovery of men’s clothing eviscerated any apparent authority, but that the officers could have reestablished apparent authority by asking the supposed bag owner to verify her control over the other bags to be searched. Furthermore, we hold that exigent circumstances did not justify the illegal search. Because the officers in the instant case did not reestablish apparent authority and could not justify proceeding with a warrantless search by claiming an exigency, we hold that district court did not err when it suppressed the firearm that officers discovered after any apparent authority dissipated, and we AFFIRM the district court’s partial grant of the defendant’s motion to suppress.

Judge Gilman joined the majority opinion. Judge Sutton wrote a separate opinion concurring in part and dissenting in part.

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Does Religious Belief Increase Charitable Giving?

Last week, I criticized claims that religious belief increases happiness. I pointed out that these claims are based on data that don't actually compare religious believers with atheists and agnostics. Instead, they are based on comparisons between churchgoers and non-churchgoers, and people who pray regularly with those who don't. At most, such comparisons show that religious believers who attend services and/or pray regularly are happier than religious believers who don't. They say nothing about differences between religious believers and nonbelievers. In addition, the argument in question conflated correlation with causation.

This week, columnist Mary Eberstadt uses the same data (collected by Albert Brooks) to argue that religious belief increases charitable donations and volunteering:

This one’s by econo-brain Arthur C. Brooks and is called Who Really Cares: America’s Charity Divide: Who Gives, Who Doesn’t, and Why it Matters. Geeking over what he calls “the fruit of years of analysis on the best national and international datasets available on charity, lots of computational horsepower, and the past work of dozens of scholars who have looked at various bits and pieces of the charity puzzle,” numbers nerd Brooks shows beyond a doubt one fact that our Side should not want out — i.e., that American believers are more “generous” in every sense than the enlightened likes of Us.

Brooks says that religious people give more to charity than non-religious people — in fact, much more: “an enormous charity gap,” he reports, “remains between religious and secular people.”

To see this, imagine two women who are both forty-five years old, white, married, have an annual household income of $50,000, and attended about a year of college. The only difference between them is that one goes to church every week, but the other never does. The churchgoing woman will be 21 percentage points more likely to make a charitable gift of money during the year than the non-churchgoer, and she will also be 26 points more likely to volunteer. Furthermore, she will tend to give $1,383 more per year to charity, and to volunteer on 6.4 more occasions.

Brooks goes on to test the charity gap up, down, and sideways. The results are always the same:

“People who pray every day (whether or not they go to church) are 30 percentage points more likely to give money to charity than people who never pray (83 to 53 percent). And people saying they devote a ‘great deal of effort’ to their spiritual lives are 42 points more likely to give than those devoting ‘no effort’ (88 to 46 percent). Even a belief in beliefs themselves is associated with charity. People who say that ‘beliefs don’t matter as long as you’re a good person’ are dramatically less likely to give charitably (69 to 86 percent) and to volunteer (32 to 51 percent) than people who think that beliefs do matter.”

The flaws in this argument are exactly the same as those I pointed out in the claim that Brooks' data shows that religious belief increases happiness: the analysis doesn't actually compare religious believers and atheists or agnostics. It compares religious believers with different levels of observance. For reasons I noted in my earlier post, the vast majority of Brooks' respondents who say they never pray or go to church are still religious believers. It stands to reason that people with less commitment to their ethical beliefs (as indicated by lower attendance at services, or failure to devote "a great deal of effort" to them) are less likely to contribute to charity based on those beliefs. A religious person who doesn't go to services or pray probably has less commitment to his belifs than one who does, and this may be reflected in their level of charitable giving. The same cannot be said of an atheist or agnostic who doesn't go to services or pray. They simply have a different set of ethical beliefs, one that doesn't require attendance at religious services, but may still require charitable donations, volunteering, and so on.

Some of Brooks' comparisons are even less relevant to to the religious-secular comparison than his data on church attendance. For example, you can disbelieve in God, yet still devote "a great deal of effort" to your "spiritual life," especially given the broad, amorphous definition of what counts as "spiritual" in today's popular culture. Similarly, it is perfectly possible to think that "beliefs" matter a great deal, yet also be nonreligious. Indeed, some of the most strongly committed atheists - people like Richard Dawkins or Christopher Hitchens, who think that nearly all religion is evil - would surely say, in a survey, that "beliefs" matter a great deal.

Finally, it's worth noting that even if Brooks and others can show a correlation between religious belief and giving, that doesn't necessarily prove causation. If believers do indeed give more than atheists and agnostics, it may be because of variables exogenous to religious belief that are correlated with it.

As in the previous post on this subject, I note two caveats. First, I am not claiming that I have proven the opposite of Brooks' and Eberstadt's argument: that religion doesn't increase charitable giving. I merely point out that they haven't proven their own case with the data they rely on. As far as I know, we don't yet have a truly reliable comparison of charitable giving by atheists and agnostics on the one hand and religious believers on the other. This gap in the literature represents an opportunity for enterprising scholars.

Second, the validity of religious belief and of atheism don't depend on their effects on charitable giving. Religion could be true, yet fail to stimulate charity. It could also be false and yet increase giving.

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Dying Art?

The Art Newspaper reports:

The German artist Gregor Schneider is planning the ultimate performance piece: showing a person dying as part of an exhibition. “I want to display a person dying naturally in the piece or somebody who has just died .... My aim is to show the beauty of death.” ...

It's not clear how far the planning for this project has gone; the original story might have overstated it in some measure, but it appears that the artist is serious, in particular about "offer[ing a dying person] a room, a space in which they spend their last hours as they wish," which could be "a public event or a private event" as the person wishes.

Reader Matt Andrade pointed me to this story, presumably with an eye towards asking my views on whether it would be legal (I'm the last person to speak to whether it's good art). My tentative answer is that this would probably be legal: The dying are as entitled to be in a place as anyone else, and invite people to visit them or see them. Nor is there any reason that I can see why a museum's drawing attention to this, or charging money for it, would be illegal under existing law. (I set aside the possibility that deliberately staging this in a public park, or some other place where people may be caught unawares by such an event, might be illegal under some sort of disturbing the peace law, on the theory that it causes alarm to unwilling viewers without adequate justification. The plan appears to be to stage this in a place where only willing viewers will be invited.)

Moreover, if the dying person is using the occasion to speak to people who come, either as a group or one at a time, it seems to me that this would be constitutionally protected speech, even if admission is charged. The conduct of being present when speaking — in whatever health one might be in (setting aside the question of contagious disease) — must, I think, be as protected as the speech one engages in. And this is true even if, and perhaps especially if, one's presence in that condition is part of one's message.

The tougher constitutional question is whether simply deliberately going to die in a place set aside for such an occasion, and publicized as a place for such an occasion, is protected expression even if nothing is said. That's hard to tell; compare Rumsfeld v. FAIR (holding that conduct may be protected by the First Amendment only if it's "inherently expressive" so that "[t]he expressive component ... [is] created by the conduct itself [rather than] by the speech that accompanies it," something that might not be so given that death as such is not inherently expressive) with Brown v. Louisiana (lead opinion, for three Justices, cited favorably by the majority opinion in Texas v. Johnson) (holding that silent presence at a racially segregated library was protected by the "freedom of speech and of assembly").

The closest legal analogy that I can think of is state laws that bar the public display of human deformities. But it's not clear to me that thse laws are constitutionally permissible. Those who are seen as deformed are as entitled to be actors, for instance, as are those who are seen as beautiful, and I don't see why the display of one's own body for its own sake would be different from the display of one's own body in impersonating another, especially if the display is accompanied with words (as it often is). Cf. Galyon v. Municipal Court, 40 Cal. Rptr. 446 (1964), and World Fair Freaks & Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla. 1972), striking down the statutes, though on substantive due process grounds that don't strike me as entirely persuasive; Brigham A. Fordham, Dangerous Bodies: Freak Shows, Expression, and Exploitation, 14 UCLA Ent. L. Rev. 207 (2007) (discussing the subject).

I'm sure that both as to exhibition of deformities and as to exhibition of one's death, some audience members may just ogle rather than being enlightened. I suspect that this is especially likely as to much commercialized exhibition of deformity. And I sympathize with concerns that some of the people being exhibited might feel degraded by the process. But I don't think this justifies blocking those dying people — or those handicapped people — who choose to display themselves in public from doing so (especially if they are speaking in the process), and reserving museums and other public places for speech by the healthy and able-bodied.

The nude dancing case suggests that such a museum exhibition might be banned by a generally applicable law that prohibits all people from deliberately choosing to die in a place that's open to the public to enter. But I know of no such generally applicable laws, and I'm not sure that if such a law is enacted, the nude dancing case would quite apply here (partly because the tradition of nude dancing laws is so much broader).

I should add that my visceral reaction is to be troubled by the museum exhibition that Mr. Schneider is contemplating (which is not to say that I would outlaw it); my assumption, and I expect that of others, is that death is most dignified when it happens without strangers watching. But at the same time this is the sort of area where I would especially doubt my (and others') visceral reactions. Among other things, are we troubled because of some genuine lack of dignity in public death, or by our own fear of death and our consequent desire to hide it, coupled with a cultural pattern created by that fear? So I hesitate to speak with any confidence about the dignitary and ethical question here, and stick with a tentative view on the legal questions.

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My Colleagues Steve Bank and Kirk Stark Guest-Blogging About Their War and Taxes Book:

I'm delighted to report that my colleagues Steve Bank and Kirk Stark will be guest-blogging next week about their new book (cowritten with Joseph Thorndike), War and Taxes. Both Steve and Kirk are top tax law scholars, and in particular among the few scholars of tax history. Here's a brief description of their topic:

During World War II, Americans were urged to ration food, save money, and pay higher taxes. After September 11, 2001 they were told to go shopping, keep spending, and enjoy a sweeping tax cut. Have political leaders abandoned America’s noble tradition of homefront sacrifice? Or have they simply adapted to economic and social realities that make sacrifice unnecessary?

In a new book from the Urban Institute Press, authors Steven A. Bank, Kirk J. Stark, and Joseph J. Thorndike tell the story of taxation during wartime, beginning with the Revolutionary War and continuing through the War of 1812, the Civil War, World Wars I and II, and the undeclared wars in Korea, Vietnam, Afghanistan, and Iraq. Bank, Stark, and Thorndike conclude that recent tax cuts mark a break with tradition: never before have so many Americans enjoyed sweeping tax cuts in the midst of a war. But the authors warn against any temptation to mythologize the nation's fiscal history. Past generations accepted heavy wartime taxes as the price of freedom and security. But they also resisted and complained about those taxes. Politicians of the past made room for self-indulgence amid the sacrifice. While today's politicians seem more focused on the self-indulgence than the sacrifice, they also operate in a different climate and under different constraints. It remains to be seen whether continued neglect of the fiscal sacrifice side of the equation is sustainable.

I much look forward to Steve's and Kirk's posts.

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Gordian Knots, polyamory, polygamy, and tsunamis across the country:

That's what gay marriage in California will imminently produce, according to a brief filed yesterday by the folks asking the California Supreme Court to stay its gay-marriage decision. They note without intended irony that Alexander the Great himself "would be unable to unbind" the resulting tangles. And all that's just from the first paragraph of the brief.

Noteworthy, too, is the imaginative diagram produced as "Exhibit 1" at p. 28, showing what appear to be representations of six partners of different sexes connected by arrows created by various marriages and civil unions. Alas, I've learned that a six-sided figure like this is not called a sexagon.

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Want Scalia to Sign Your Book?: DC-area readers may be interested to know that next Tuesday, Justice Scalia will be talking about his new book on legal advocacy -- and signing copies of it, too. Details are available here. I understand the event is free for students, summer associates, and government employees.
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Gay marriage by executive decision in New York:

New York is next. State agency heads in New York have been instructed by Gov. David Paterson's legal counsel to begin recognizing same-sex marriages validly performed in other jurisdictions, like Massachusetts, Canada, and beginning June 17, California.

The memo (available here) relies on the decision of an intermediate appellate court and several lower courts in the state that have held that same-sex marriages from other jurisdictions are entitled to recognition in the state. The memo also notes that, in 2007, a state agency extended spousal benefits to married gay couples under the state's health insurance program.

Some activists opposed to gay marriage plan to ask courts to overturn the governor's action, but such challenges are given little chance of succeeding. The executive memo implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state's high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages. While the state's high court rejected a gay-marriage claim in a 2006 decision, that does not preclude state recognition of out-of-state marriages.

It's also very unlikely the state legislature will reverse this executive action by statute. The state assembly last year passed a gay-marriage bill, though the bill went nowhere in the GOP-controlled state senate. Indeed, if Democrats capture the state senate in November, it's likely a gay-marriage bill will pass the legislature and be signed into law by Gov. Paterson.

The remaining remedy for anti-gay marriage activists is to persuade their fellow New Yorkers to vote the governor and gay-friendly legislators out of office.

What's the upshot of this development? Same-sex marriages still can't be performed in New York itself. But consider the effect of what we might call marriage tourism. There is now nothing to stop gay couples from crossing the Canadian border or flying to California to get married. Canada and California, unlike Massachusetts, have no residency requirement for marriage. These couples may then return home fully married under state law.

It's not nearly as dramatic as a sudden judicial declaration of a right to gay marriage, but the practical effect is almost the same. There will soon be thousands of married gay couples in New York. And the very existence of so many married gay couples living in the state will make it harder politically to justify making the rest go through the motions of traveling out of state to get married.

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Thursday, May 29, 2008

Subpoena of Internet Service Provider Records in a Divorce Case:

From London v. Does 1-4, an unpublished Ninth Circuit memorandum from last week:

In 2005, Jennifer London, a United States citizen who was domiciled in St. Martin, began divorce and child custody proceedings against her husband, Richard London, also a United States citizen, in St. Martin, a French territory governed by French law. Jennifer sought a divorce from Richard based on adultery, a ground for a fault-based divorce. To establish the adultery, Jennifer introduced evidence in the divorce proceeding to suggest that Richard had used five pseudonymous Yahoo! email accounts to solicit sex on the Internet. Richard denied that the email accounts belonged to him and claimed that Jennifer had fabricated the evidence.

Thereafter, Jennifer filed an application in district court for an order to conduct discovery on the five Yahoo! email accounts under 28 U.S.C. § 1782 for use in her foreign divorce case. The district court granted the application and issued a subpoena to Yahoo! directing it to produce: (1) documents identifying the names, addresses, and telephone numbers provided by the users of the five email accounts; (2) documents describing the dates on which the five email accounts were created; (3) documents describing the Internet protocol address (IP) from which the five email accounts were created; (4) documents identifying Internet groups in which the account users participated; and (5) documents reflecting group board postings made by the account users. Jennifer served Yahoo! with the subpoena, and agreed to waive the right to documents listed in item five. Richard and the four Does moved to quash the subpoena, which the district court denied....

The proof sought, given the nature and character of the foreign case, is critical to establish adultery, secure the divorce, and defend against allegations of fabrication. Such evidence may be the only way to identify the user of the email accounts used to solicit adulterous sex. The request is not an attempt to avoid foreign evidence rules, and is not unduly intrusive or burdensome because it seeks to gather only identifying information for the accounts, such as the names and addresses of the users, and not the content of any communication. Given the need for the evidence, and the minimal invasion required, the [Intel Corp. v. Advanced Micro Devices] factors weigh in favor of granting the request.

Appellants’ contention that granting the [discovery] request violates their First Amendment right to anonymous speech is also without merit. Appellants cite no authority for the proposition that the First Amendment bars release of identifying data for email accounts used to solicit sex partners on the Internet. We have held that exposure of some identifying data does not violate the First Amendment. See People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th Cir. 1996) (holding that order identifying phone numbers through a caller identification service did not violate the First Amendment right to speak anonymously). Thus, because a legal privilege was not implicated, the district court properly denied the motions to quash the subpoena.

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The Heart of the Disagreement Among the Judges in the Texas FLDS Litigation?

The Texas Supreme Court opinions in this matter are short. The majority gives little analysis, perhaps relying on the analysis in the court of appeals decision:

Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care.
The majority then points to the court's ability to "make and modify temporary orders 'for the safety and welfare of the child,'" the court's ability to "order the removal of an alleged perpetrator from the child's home," and the court's and prosecutors' ability to punish removal of children and other obstruction with investigation.

The 3-Justice concurrence and dissent agrees as to the boys and the prepubescent girls, but reasons otherwise as to the pubescent girls. In particular, it points to five girls ranging in age from 13 to 16 who had children, were pregnant, or had been pregnant (seemingly the same ones noted by the lower court opinion). It then goes on to reason that "[e]vidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch — evidence sufficient to satisfy a 'person of ordinary prudence and caution that other such girls were at risk of sexual abuse as well.'"

The partial dissenters then go on to explain why they think — again, contrary to the court of appeals opinion — that the Department can't be faulted for failing to show that "reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal": The FLDS members, the dissenters conclude, thwarted any such alternative efforts by refusing to disclose the family structures on the ranch, and in some instances by lying about such matters.

Here, though, is what strikes me as the heart of the disagreement: The dissenters stress (see note 2) that "In determining whether there is a 'continuing danger to the health or safety' of a child, the Family Code explicitly permits a court to consider 'whether the household to which the child would be returned includes a person who ... has sexually abused another child.'" The court of appeals, which the majority seems to agree with, says to the contrary (note 10) that:

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.
And this is important because the factual evidence of underage sex on which the dissenters relied didn't seem to be focused on the particular pubescent girls at issue in this case, or specific threats those girls faced.

After all, pubescent girls get pregnant in all sorts of communities; the five pregnancies on which the dissenters relied — I realize there may be other pregnancies out there, but these are the ones the Justices cited — aren't even so unusual for a group of 250 or more girls (I believe that's the rough number seized at the FLDS ranch): The pregnancy rate for 14-year-olds and younger this decade seems to be a little under 1%, and for 15-to-17-year-olds seems to be a little over 4%, though I take it that for 15- and 16-year-olds the fraction would be less than the aggregate for 15-, 16-, and 17-year-olds. Texas reports a roughly 4% pregnancy rate for 16-year-olds, a roughly 2% rate for 15-year-olds, and a roughly 0.1% rate for 13-year-olds (no numbers are given for 14-year-olds). The rate of teenage sex is obviously even higher.

A particular girl's mere presence in a community that tolerates this sort of behavior, it seems to me, can't be enough as a legal matter for a finding that the girl is in enough danger to be seized. If the government swept through many a neighborhood in the country, it would probably find lots of underage girls who are pregnant, many through illegal sex — yet I take it that this wouldn't justify even a temporary removal of one girl from her parents because of the pregnancy of other girls in neighboring houses. And I take it there would be no justification for such temporary removal even if it was clear that most people in the neighborhood had nothing against early marriages (for instance, because they were emigres from a region, such as East Asia or Latin America, where the age of consent for sex and for marriage was low), even if people knew each other's families and socialized often with them, and even if many community members were refusing to cooperate with authorities. "[A] pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, [in such a neighborhood]" wouldn't dispense with the need of showing some individualized evidence that each particular girl who was to be seized was subject to a high risk of danger, beyond just the fact that she lived in a neighborhood were those things happened and were condoned.

So this is why it seems to me that the heart of the partial dissenters' argument must be that "the Ranch" is different from a normal neighborhood, presumably because it counts as a single "household" (something the dissenters don't expressly say, but that they seem to point to by reference to behavior "on the Ranch" coupled with the mention of the "household" principle in note 2). And the majority's disagreement, I expect, probably stems partly from the majority's accepting the court of appeals' contrary view that the Ranch consists of many separate households.

Now I can't speak with confidence about how dispositive the "single household" vs. "multiple households" distinctions ought to be, or how the lines ought to be drawn in close cases if the distinction is used. But my sense is that this issue — which more broadly relates to the degree of responsibility that can be ascribed to any particular child's parents for the abusive or neglectful actions of other parents in their community — is what the dispute in this particular stage of litigation is really about.

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Removal of Children from FLDS Ranch "Was Not Warranted":

So holds the Texas Supreme Court, apparently 9-0 as to boys and prepubescent girls, and 6-3 as to pubescent girls. This thus lets stand the court of appeals decision from last week. More as I read further through the opinions.

Thanks to How Appealing for the pointer.

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Recommended Constitutional History Reading:

Jason Mazzone, The Bill of Rights in the Early State Courts, 92 Minn. L. Rev. 1 (2007). Here's the gist:

The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.

A very interesting piece! Also notable is that at the trial court level in Barron, the Maryland court held that the state constitution's due process clause required just compensation for government takings of private property, an invocation of the concept of "substantive due process" well before its purported invention in Dred Scott v. Sandford.

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Careful with Those Surveys:

An article in The New York Review of Books argues:

Books also give off special smells. According to a recent survey of French students, 43 percent consider smell to be one of the most important qualities of printed books — so important that they resist buying odorless electronic books.

Not quite, if I have the right survey (which is reported by CaféScribe, polls students, and gets a 43% number, but doesn't seem to poll French students). The survey asked, "Of the following physical qualities of books, which do you love the most?," and reported the following results for each of the options:

Feel of turning a page30%
New book-smell30%
Old book-smell13%
Wear and tear from previous readers5%
Weight4%
Size of pages3%
Dust-jacket1%
Other6%
Not sure9%
It then asked, "Assuming that a used book is 75% of the cost of a new book, and an e-book 50% of the cost of a new book, which version would you prefer to purchase?," and reported that 62% would prefer the used book, 22% would prefer the new book, and 13% would prefer the e-book.

But this does not mean that "43 percent consider smell to be one of the most important qualities of printed books — so important that they resist buying odorless electronic books." Rather, 43% say that smell is the "physical quality" they "love the most," with most respondents likely limiting physical qualities to the offered options: smell, size, weight, dust-jacket, and wear. This tells us very little about how important smell is, compared to other factors such as readability, portability, and the like — only that of these factors, which might be important or not, smell is the most important one.

In fact, current e-books have serious constraints that the survey never mentioned: They tend to be harder to read than ordinary books (something that some respondents might see captured in "size of pages," but that many might not), and because few people have custom e-book readers, they would have to be read on relatively bulky notebook computers or even bulkier desktops. This might well explain the result that most people prefer paper books, with smell having next to nothing to do with it.

So the survey, it seems to me, actually reveals little about what people genuinely find important in choosing books (perhaps by design, if the company just wanted a justification for its gimmick). In particular, it doesn't reveal what the New York Review of Books article claims. If you want to find out whether people's refusal to buy e-books really stems from the e-books' lack of smell, ask them that and maybe you'll get reliable answers. But the questions that were actually asked don't yield that information.

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I Probably Won't Be Blogging for the next few days as I'll be wearing a goofy costume and drinking lots of beer instead. In case there are some readers who may be at Princeton's Reunions, as well, I'll be participating in an alumni panel about the Supreme Court on Saturday at 10:30 in McCosh 50 together with Chris Schroeder, Lisa Heinzerling, Paul Schiff Berman, and Michael Kimberly.

Hero Stops Mass Shooting:

From a Winnemucca, Nevada police statement:

On Sunday May 25, 2008 at approximately 2:30 a.m. the Winnemucca Police Department was dispatched to the Players Bar and Grill .... There were approximately 300 patrons in and around the bar....

The officers on scene discovered three adult males who had died from obvious gunshot wounds. Two additional gunshot victims were also located[, treated, and released from the hospital]....

The ... investigation lead detectives to believe that [Ernesto Fuentes] Villagomez[, 30,] entered the bar and at some point began firing multiple rounds. At least two of these rounds struck and killed the other two decedents, Jose Torres age, 20 and his brother Margarito Torres, age 19 both of Winnemucca. At some point during this shooting spree Villagomez allegedly stopped and according to witnesses reloaded his high capacity handgun and began shooting again.

It was at this point that ... [a 48-year-old Reno man] produced a concealed handgun and proceeded to fire upon Villagomez who succumbed to his wounds. The Reno resident was in possession of a valid Concealed Carry Permit issued through the Washoe County Sheriff’s Office.... [T]he shooting of Villagomez by the Reno man was [concluded to be] a justifiable homicide ....

The investigation is currently pursuing a lead that indicates that this event may have been the result of a long standing feud between several families....

My hat is off to the anonymous man who likely could have blended into the crowd and escaped, but who put himself at considerable risk to protect the lives of others.

Thanks to InstaPundit for the pointer.

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Wednesday, May 28, 2008

Columnist Fails to Collar Ambassador Bolton:

The London Telegraph reports that Guardian columnist George Monbiot tried, and failed, to make a "citizen's arrest" of former U.S. ambassador to the U.N., John Bolton, at a literary festival in England. "This was a serious attempt to bring one of the perpetrators of the Iraq war to justice, for what is described under the Nuremberg Principles as an international crime," Monbiot said.

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Jurisdictional Jousting in California Waiver Suit:

Last week, the Senate Environment Committee approved legislation to overturn the Environmental Protection Agency’s denial of California’s request for a waiver of preemption of the Golden State’s regulation of greenhouse gas emissions from new motor vehicles sold in the state. As I have discussed before, under the language of the Clean Air Act, the EPA’s decision was legally justified (even if debatable on policy grounds). The agency had no legal obligation to grant California’s request for permission to impose the nation’s first GHG emission controls. If members of Congress disagree with EPA’s choice – and some clearly do – legislation revising the Act or granting the waiver is the proper recourse.

As the waiver legislation advances, so too does California’s legal challenge to the waiver denial -- though it is not clear where the lawsuit will (or should) be heard. California would like to press its case in the U.S. Court of Appeals for the Ninth Circuit. The EPA and the auto industry, on the other hand, believe proper jurisdiction lies in the U.S. Court of Appeals for the D.C. Circuit. At the same time, there is a dispute over what, precisely, California is challenging: the EPA’s letter to California giving notice of its decision, or the subsequent formal Federal Register notice. Resolution of these questions could determine the outcome of the suit.

Some background: On December 19, EPA Administrator Stephen Johnson sent California Governor Arnold Schwarzenegger a letter informing him that EPA would deny the waiver. California then filed suit in the Ninth Circuit. According to California, the case belongs in the Ninth Circuit because the waiver request concerns California (even though many other states wish to adopt California’s regs), and Johnson’s letter failed to include language indicating that the decision was “nationally applicable” or “based on a determination of nationwide scope or effect.” Had such language been included, the Ninth Circuit would have no jurisdiction over the suit. Under CAA Section 307(b), challenges to such “national” regulatory decisions must be made in the D.C. Circuit.

Then, on February 29, EPA Administrator Johnson signed the agency’s formal Notice of Decision denying California’s waiver request. This notice contained a more detailed explanation for the EPA’s decision and, unlike Administrator Johnson’s December letter, included boilerplate language indicating that the decision was “a final action of national applicability for purposes of section 307(b)(1),” as were past wavier decisions. It was published in the Federal Register on March 6.

Since the March Federal Register notice, things have gotten interesting. Aware that the notice’s 307(b) determination could defeat the Ninth Circuit’s jurisdiction over the case, California filed another challenge to the EPA’s decision in the D.C. Circuit, so as to preserve its claim. In both Circuits, California has argued that the “real” decision subject to judicial review is the December letter, rather than the Federal Register notice. The EPA had made its decision by the time the letter was issued, California argues, so the notice was just a post-hoc justification. This argument seems to prove too much, however, as an agency administrator will always make his or her decision well before the publication of a Federal Register notice, if for no other reason that it takes time to write and publish the notice. Even if California were successful with this argument, however, it would have to contend with the EPA’s claim that prior waiver determinations, all of which dealt with more localized pollutants, were deemed to be “national’ decisions subject to review in the D.C. Circuit.

Meanwhile, the EPA and auto industry both filed motions to dismiss California’s claims in the Ninth Circuit. The auto industry also filed a motion under the All Writs Act seeking to bar California from pursuing its claims in the Ninth Circuit, as such claims would oust the D.C. Circuit of its proper jurisdiction. The EPA also filed a motion in the D.C. Circuit seeking to dismiss California’s claims, on the grounds that California, in challenging the December letter, did not challenge a “final agency action” subject to review. According to the EPA, California could only properly challenge the actual decision, i.e. the Federal Register notice.

The current action is back in the Ninth Circuit. On April 10, Ninth Circuit Appellate Commissioner Peter L. Shaw denied the EPA’s and auto industry’s motions to dismiss California’s claims for lack of subject matter jurisdiction, without prejudice to their ability to raise jurisdictional claims in their merits briefs. Later that month, both EPA and the autos filed motions to reconsider, arguing that resolution of the jurisdictional question is necessary to avoid potentially duplicative and wasteful litigation. In particular, they argue that the continuation of proceedings in the Ninth Circuit challenging the December letter could delay, and potentially prejudice, proceedings in the D.C. Circuit challenging the Federal Register notice, over which the D.C. Circuit indisputably has exclusive jurisdiction.

As I understand the state of play, these motions to reconsider are pending before the Ninth Circuit’s motions panel. Not being a Ninth Circuit maven, I don’t know how long the motions panel can sit on these latest motions, or what the role of the Appellate Commissioner is at this point. [I find it odd that the Commissioner, on his own (i.e. without the participation of a motions panel of Article III judges), can rule on a motion to dismiss.] The merits briefs are due in the coming weeks, however, so I would expect a decision soon.

How these motions are resolved could help determine the ultimate outcome of the waiver litigation. California clearly chose to file its challenge in the Ninth Circuit because of the Ninth Circuit’s reputation as a more “green-friendly” court. In many areas, the Ninth Circuit has adopted greater scrutiny of federal regulatory agency decisions alleged to be insufficiently protective of the environment. By the same token, the EPA and auto industry believe the D.C. Circuit would be more willing to uphold the agency’s determination, in part because the D.C. Circuit has more experience with the CAA generally, and challenges involving waiver petitions in particular. So stay tuned, as this little procedural determination could have a substantial substantive effect.

Related Posts (on one page):

  1. Ninth Circuit Dismisses California Waiver Suit:
  2. Jurisdictional Jousting in California Waiver Suit:
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Some More Thoughts on Daubert and Forensic Science:

In my Iowa Law Review article, discussed in my previous post, I point out that Daubert/amended Rule 702 haven't done much as yet to improve the state of forensic science, and are unlikely to do so in the future.

One reason that forensic science (itself a misnomer, as there is little science involved, for the most part) has emerged mostly unscathed from the upheaval in expert evidence law, I suspect, is that the "Daubert Trilogy" of expert evidence cases--Daubert v. Merrell Dow Pharmaceuticals, General Electric Co. v. Joiner, and Kumho Tire v. Carmichael--on which Rule 702 is an elaboration, were all civil cases. Moreover, despite the obvious relevance to criminal cases, the criminal law bar was virtually silent when these cases were being decided. For example, when Daubert was before the Supreme Court, out of over thirty amicus briefs, not a single one was filed by an organization concerned with criminal justice issues. Almost all the energy opposing "junk science" has come from corporate America and its attorneys, with the opposition coming from the plaintiffs' bar.

Political liberals, especially elected officials (who, not coincidentally, get much funding from the plaintiffs' bar, and very little from public defenders and their clients) have generally opposed attempts to crack down on bad science (and other forms of expertise) because of the latter dynamic, and have mostly ignored the ongoing abuses of expert testimony in the criminal justice system. Prosecutors, for their part, have fought tooth and nail against attempts to restrain their use of dubious evidence, especially at the state level--I've heard from sources in several states that the main barrier to adopting a rule requiring reliable expert testimony in their states has been the strong opposition of prosecutors who fear that such a rule will make it hard for them to get convictions. Of course, their job, properly, is not to "get convictions," but to convict the guilty; and even though Daubert has actually had very little effect on prosecutors' ability to get convictions, the mere idea that their experts may be held to some reasonable standard of reliability is enough to raise prosecutors' hackles.

For reasons discussed in my Iowa article, mere tinkering with the rules of evidence is unlikely to change the current dynamic in which quackspertise is almost routinely admitted in criminal cases. But I wonder if more progress would have been made by now if quackspertise in the forensic contest had received a fraction of the attention of junk science in civil litigation, from the Supreme Court and otherwise.

For essential reading on the subject, see Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. Rev. 163 (2007) (detailing many of the problems with forensic science) and Roger Koppl, How to Improve Forensic Science, 20 Eur. J.L. & Econ. 255 (2005) (providing the best ideas I've seen to improve forensic science, using economic reasoning). Todd recently linked to a popular version of Koppl's ideas, published in Forbes.

Related Posts (on one page):

  1. Some More Thoughts on Daubert and Forensic Science:
  2. Article on Daubert and Adversarial Bias:
14 Comments

From OSU Dean to Ohio AG:

Ohio Governor Ted Strickland has named Ohio State University Moritz College of Law Dean Nancy Hardin Rogers as the interim Attorney General for Ohio. Rogers will serve from now through November's election, but will not run for election. Rogers replaces the scandal-ridden Marc Dann, who resigned in disgrace on May 14.

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Article on Daubert and Adversarial Bias:

My article, "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution," has just been published in the Iowa Law Review. You can find an on-line version here. Here is the abstract:

This article raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision. First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test? Second, once we have identified this rationale, has the Daubert revolution succeeded on its own terms?

I conclude that the implicit rationale for the reliability test is to preserve the perceived advantages of the adversarial system, while mitigating the harms to the courts' truth-seeking function by the inevitable strong biases that accompany adversarial expert testimony. These biases include the conscious biases of hired guns, the unconscious biases of other paid experts, and the selection biases that result from the fact that attorneys shop for their experts from a large pool of qualified individuals.

Rule 702 thus attempts to serve a worthy goal, but it far from fully succeeds in efficiently achieving this goal. First, in the context of forensic expertise in criminal cases, Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony.

Second, Rule 702, applied correctly, does succeed in barring junk science causation evidence in toxic torts cases. However, it does so at the expense of excluding speculative evidence supporting causation, even when most experts in the field would conclude that the relevant evidence is a sufficient basis from which to find causation by a preponderance of the evidence. While Rule 702 is easily preferable to the prior overly permissive regime, it likely goes too far in insisting on a reliability test that makes the courtroom stricter about causation evidence than is the scientific community itself. The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses.

Finally, Rule 702 puts severe restrictions on the testimony of experience-based testimony by "connoisseurs". Such experts may only testify if their field of expertise is a legitimate one, and they have proven to the court that they truly have the expertise they claim. Rule 702 also properly prevents attorneys from shopping for outlier and hired gun connoisseurs, given that there is no objective way for a jury to determine whether an experience-based expert's views are correct or representative of other experts in the field. Therefore, in the context of connoisseur testimony, courts should either replace adversarial experts with a panel of nonpartisan experts, or only allow an adversarial expert to testify if his conclusions are consistent with those of a nonpartisan advisory panel.

Related Posts (on one page):

  1. Some More Thoughts on Daubert and Forensic Science:
  2. Article on Daubert and Adversarial Bias:
7 Comments

Bork vs. Burke - A Dilemma For Conservatives:

One of the most interesting aspects of Robert Bork's version of conservatism, part of which I criticized in my recent symposium essay on his argument for wide-ranging government censorship, is how radical it is - in the sense of calling for drastic changes from the status quo. Although Bork praises Edmund Burke in his writings, the Borkean position is in serious tension with the "Burkean conservative" presumption against radical change and preference for gradualism that we debated here at the VC a few weeks ago.

In addition to calling for a ramping up of censorship to levels not tolerated by the courts for at least sixty years, Bork also argues for the near-abolition of judicial review, an institution that has grown over two hundred years. In his 1989 book, The Tempting of America, Bork argues that even the relatively restrained Supreme Court of John Marshall's era went too far in striking down legislation. In Slouching Towards Gomorrah (1996), Bork put forward a proposal to allow Congress to override judicial decisions striking down statutes by a simple majority vote. More broadly, Bork, in Slouching, rejects much of the last three hundred years of developments in in intellectual history of liberal democracy. He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty. The Declaration's invocation of the rights to "life, liberty, and the pursuit of happiness" is, according to Bork, "pernicious" if "taken . . . as a guide to action, governmental or private" (for citations, see my article on Bork and censorship linked above).

Both Bork's call for drastic changes in current policy and institutions, and his rejection of much of the Western tradition of individual liberty are seriously at odds with Burkean conservatism.

Not all conservatives go as far as Bork in urging radical change. However, many do support major divergences from status quo policies. This poses a difficult dilemma for those who also claim to be followers of the Burkean presumption against drastic change and in favor of tradition. By now, many of the policies that social conservatives want to alter have been in place for decades, long enough to become "traditions" in even a strong Burkean sense. Consider, for example, conservative proposals to make divorce far more difficult, ban most abortions, and privatize Social Security - all of which would drastically alter longstanding important policies. One can advocate a robust social conservative agenda, as Bork does, or one can advocate Burkean deference to tradition and a strong presumption against radical change. But it's hard to consistently advocate both at the same time.

To be completely clear, my own disagreements with Bork don't turn on the fact that he urges radical divergence from status quo policies and traditions. In my view, the Burkean conservative presumption against rapid change is largely unjustified. I object to Bork's policy prescriptions because I think they would move us in the wrong direction, not because I think we should be deeply suspicious of any major departures from the status quo. But social conservatives who sympathize with at least some of Bork's views yet also want to be Burkeans face a more difficult dilemma than I do.

One possible way to resolve the contradiction would be to argue (as Bork in fact does) that liberal policies of the last several decades themselves went against previous longstanding traditions. That may be true. But if radical change today can be justified on Burkean conservative grounds merely because it would return us to some earlier tradition, then almost anything can be justified. Nearly every conceivable public policy has been enacted at some point or other in human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homosexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization.

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A Hypothetical for Conservative Opponents of Recognizing Same-Sex Marriage:

Conor Friedersdorf, guest-blogging at Megan McArdle's site poses it:

An 8-year-old goes to play at the house of his friend, who is raised by two lesbian women. The environment is a loving one. So this playmate, whose straight parents are married, is going to absorb one of two possible norms.

1) My friend lives in a happy home. His parents are married. When people grow up and love each other, and want to have kids and a happy home, they get married. (I hope I get married one day.)

Or

2) My friend lives in a happy home. His parents aren't married. When people grow up and love each other, and want to have kids and a happy home, sometimes they get married like my parents. Other times they don't get married, like my friend's parents. (One day I may get married and have kids, but maybe I'll just have kids and live with the person I love.)

Friedersdorf's question: Which option, as a conservative, would you prefer to see?

I realize that your first preference might be "women will form relationships with men, not other women, so my 8-year-old won't see such relationships." But that preference is not realistically attainable, even if same-sex marriages are prohibited. (It's true that the majority of women who have relationships with women are in some measure bisexual, but it's a fair bet that the law isn't going to much influence women's decisions on the subject these days or any days in the likely future.) Your second preference might be "lesbian couples shouldn't be allowed to adopt children or have children through artificial insemination," but that too seems highly unlikely regardless of the state of same-sex marriage law. Just as with alcohol consumption, sexual promiscuity, marital disintegration, and the like, many options are off the table given the limits to what law can do, and the limits to what laws are likely to get enacted. Your third preference might be "I won't let my child play at his friend's house, because he'll be exposed to an immoral living arrangement," but I sure hope it won't be, given how cruel it would be to your child and to his friend. (And would you then do the same as to your child's friends whose mothers are living with their boyfriends, or engaged in other forms of what you see as sexual misconduct?)

So it really does come down to encouraging choice 1 and encouraging choice 2 -- and our duty, as thoughtful citizens, to try to choose the best public policies given the suboptimal options we have. Which choice do you think best fosters a pro-marriage mentality on your child's part, even if you think it's extremely likely that your child will himself grow up straight?

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Everything Old is New Again (Here as to Anti-Blasphemy Arguments):

Rereading David Rabban's Free Speech in Its Forgotten Years, I ran across a quote from Anthony Comstock -- the architect of the late 1800s prosecutions of "obscenity," including advocacy of free love, distribution of material about contraception, and (most relevant here) blasphemy. Here it is, from Google Books (if the link doesn't work, search Google Books for comstock traps for the young "honest infidels"):

There is a vast difference between [a "respectable infidel" who simply expresses his disagreement on religious matters] and the one who seeks by scoffs and sneers to wound the feelings of those who differ from him, or who makes a living by blaspheming the name of God, and discusses those subjects that most closely concern the interests of the soul so as to provoke laughter and applause from thoughtless ones.
And this scoffing, sneering feeling-wounder was to be the target of criminal prosecution.

Seeing this, I was struck by how similar it is to some of the arguments I've heard in favor of what I've called the "new anti-blasphemy laws," in America and elsewhere -- arguments that likewise often deploy the same distinction between "respectable" criticism of religion, which would supposedly remain protected, and "scoff[ing] and sneer[ing that] wounds the feelings." The distinction was unadministrable and unjustifiable then (as the U.S. Supreme Court ultimately realized in Joseph Burstyn, Inc. v. Wilson (1952)), and it remains so today. But it's worth remembering how it was deployed in the past, and how much speech has been restricted in its name.

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The Case for the Third-Party Doctrine: I have just posted a draft of my latest paper on SSRN: The Case for the Third-Party Doctrine, forthcoming in the Michigan Law Review. The article cuts across the grain of lots and lots of existing Fourth Amendment scholarship by arguing that very controversial cases like Smith v. Maryland were correctly decided. Here's the abstract:
This article offers a defense of the Fourth Amendment's third-party doctrine, the controversial rule that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power. This article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses.

The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. The third-party doctrine corrects for the substitution effect of third parties that would otherwise allow savvy criminals to substitute a hidden third-party exchange for a previously public act. Second, the doctrine helps ensure the clarity of Fourth Amendment rules. It matches the Fourth Amendment rules for information to the rules for location, creating clarity without the need for a complex framework of sui generis rules.

Finally, the two primary criticisms of the third-party doctrine are significantly weaker than critics have claimed. The third-party doctrine is awkward for reasons of form rather than function; it is a consent doctrine masquerading as an application of the Katz "reasonable expectation of privacy" test. Claims that the doctrine gives the government too much power overlook the substitutes for Fourth Amendment protection in the use of the third parties. Those substitutes include entrapment law, common law privileges, the Massiah doctrine, the First Amendment, internal agency regulations, and the rights of the third parties themselves.
  I still have some time before a draft is due at the MLR offices, so any comments or complaints are most welcome. (Please send rotten tomatoes to my work address.)
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Field Poll Shows Majority Support Among California Registered Voters for Same-Sex Marriage:

From the Field summary:

For the first time in over three decades of polling on the issue of same-sex marriage laws, The Field Poll finds more California voters approving than disapproving of allowing same-sex couples the right to marry and having regular marriage laws apply to them. In a survey completed May 17-26 among a random sample of 1,052 registered voters the idea of allowing gay and lesbian couples to marry is now approved by a 51% to 42% margin statewide.

This is up from 44%-50% (with the 50% disapproving) in 2006, and similar numbers in 2003 and 2004. Women are substantially more likely to support recognizing same-sex marriage than men; men favor recognizing same-sex marriage by 4% (within the margin of error), while women favor it by 14%. The proposed constitutional amendment banning recognition of same-sex marriages is opposed by 54%-40% or 51%-43%, depending on how the question is asked. All in all, very different results from those reported by the L.A. Times poll last week.

Note, though, that if civil unions are included as an option, the result becomes 51% to 45% against recognizing same-sex marriage (though that's down from 60% to 36% two years ago).

Related Posts (on one page):

  1. Field Poll Shows Majority Support Among California Registered Voters for Same-Sex Marriage:
  2. Men, Women, and Same-Sex Marriage:
  3. "Californians Barely Reject Gay Marriage,"
47 Comments

WSJ on "Dartmouth Against Democracy":

Bill McGurn provides an overview of the current Dartmouth election in yesterday's Wall Street Journal:

If you think Hillary Clinton has been slow to accept the results at the ballot box, meet the folks who run Dartmouth College.

Like Sen. Clinton, the powers that be at Dartmouth have been getting trounced at the voting booth by an opposition campaigning for change. Like Sen. Clinton, Dartmouth's establishment has responded with increasingly desperate attacks. And like Sen. Clinton, its hopes of victory now depend on increasing the power and influence of unelected officials.

In Mrs. Clinton's case, these are called superdelegates. In Dartmouth's case, they are the self-perpetuating members of the Board of Trustees. In little more than a week – on June 5 – elections will close for the leadership of Dartmouth's Association of Alumni. If the establishment slate wins, the board will eviscerate a progressive, 117-year-old arrangement that makes this college in Hanover, N.H. one of the few where alumni have a real say in the way the school is run.

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Collectivist Presidential Candidates:

The Cato Institute's David Boaz thinks Barrack Obama is a collectivist. But Republicans should take note: He thinks John McCain is a collectivist too. In their campaign speeches, Boaz notes, both candidates discourage the individual pursuit of happiness, particularly if it has anything to do with money. They disparage success in business or economic pursuits, implicitly denigrating those who have done the most to ensure this nation's prosperity and wealth.

There is a whiff of hypocrisy here. Mr. Obama, who made $4.2 million last year and lives in a $1.65 million house bought with the help of the indicted Tony Rezko – and whose "elegant suits" and "impeccable ties" made him one of Esquire's Best-Dressed Men in the World – disdains college students who might want to "chase after the big house and the nice suits." Mr. McCain, who with his wife earned more than $6 million last year and who owns at least seven homes, ridicules Mr. Romney for having built businesses.

But hypocrisy is not the biggest issue. The real issue is that Messrs. Obama and McCain are telling us Americans that our normal lives are not good enough, that pursuing our own happiness is "self-indulgence," that building a business is "chasing after our money culture," that working to provide a better life for our families is a "narrow concern."

They're wrong. Every human life counts. Your life counts. You have a right to live it as you choose, to follow your bliss. You have a right to seek satisfaction in accomplishment. And if you chase after the almighty dollar, you just might find that you are led, as if by an invisible hand, to do things that improve the lives of others.

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Chief Justice Roberts, Aiming Towards the Middle, and the Marks Rule: What explains the low number of 5-4 cases so far this Term? I have a pet theory — really just idle speculation at this point — that Chief Justice Roberts may have found a sweet spot aiming towards the middle by relying more heavily on the Marks rule than his predecessor Chief Justice Rehnquist.

  First, a bit of background. It takes five votes for an opinion to become a binding "Opinion of the Court." When there is no one majority opinion, the Court has generally embraced what is known as the Marks rule, after Marks v. United States, 430 U.S. 188 (1977). The Marks rule is (essentially) that if there is no one majority opinion for the Court, the controlling opinion for future cases is the narrowest decision in favor of the winning side. As the Court put it in Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

  There isn't any one "opinion of the Court" in such cases, but the lower courts must follow the narrowest opinion for the winning side as if it were the majority opinion. And in recent years, the Justices themselves have largely treated the controlling opinions under Marks as if they were majority opinions for purposes of stare decisis. An example is Coker v. Georgia, where the binding opinion under the Marks rule was Justice White's plurality decision; in the recent litigation in Kennedy v. Louisiana, that plurality opinion was treated essentially as if it were a majority opinion.

  This is just a guess, but I would speculate that the low number of 5-4 cases may result in part from Chief Justice Roberts being more willing than the late Chief Justice Rehnquist to write or assign controlling plurality opinions instead of trying to force majority opinions out of a closely divided Court. In particular, the current configuration on the Court lets Chief Justice Roberts aim for a center-right position in which he starts with Alito, Kennedy, and himself on board. By taking a center-right position, he has a chance of picking up a vote from one of the liberal-leaning Justices who feel they can gain more by joining a center-right opinion than by dissenting. End result: fewer 5-4 decisions.

  The obvious risk here is that a center-right approach will alienate Justices Scalia and Thomas, who might feel that they can't sign on to the resulting opinion. This has happened in a few major cases this Term: see, for example, Baze v. Rees, the recent death penalty case, or Crawford v. Marion County Election Board, the recent voter ID case. Both were 6-3, but both featured a controlling center/center-right opinion and a separate Scalia/Thomas opinion (one of which added Alito). Thus, a counterintuitive by-product of having fewer 5-4 decisions is that there may also be fewer majority opinions.

  But losing a majority opinion isn't really a problem as long as the courts consistently follow the Marks rule. If Thomas and Scalia break off and write a concurring opinion that would draw the line away from the center, then under Marks the center-right plurality opinion is still the controlling opinion going forward. The center-right opinion that Roberts either authored or assigned remains the controlling opinion even if it is not an "Opinion of the Court" with a majority on board.

  Now you're wondering, why would Roberts do that? Well, first of all, recognize that this is pretty much what Roberts said he would do in his interview with my colleague Jeffrey Rosen in the January 2007 Atlantic Monthly. I know, I know: we're all way too cynical to actually believe what a person says to the press. But I think Rosen's interview is worth a re-read:
Promoting unanimity will not be an easy task, Roberts acknowledged, after years of “the personalization of judicial politics.” He said that he had to emphasize the benefits of unanimity for individual justices, in order to influence what he called the “team dynamic.” “You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn’t otherwise,” he said. Roberts added that in some ways he considered his situation—overseeing a Court that is evenly divided on important issues—to be ideal. “You do need some fluidity in the middle, [if you are going] to develop a commitment to a different way of deciding things.” In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament.
  More broadly, it seems to me that this strategy would be a pretty savvy approach for a Chief Justice on a divided Court who is deeply concerned with the stability and predictability of the law. Why? Aiming for the center-right secures the center, and securing the center makes the center-right opinion the consistently controlling opinion under Marks. In contrast, trying to get all five conservative-ish Justices on board a single opinion risks unpredictability if the five don't hold. Under the Marks rule, if the center vote breaks off, the holding of the Court goes wherever that center vote goes. That's likely to lead to less predictable decisionmaking; better to to try and secure the center first. Indeed, according to SCOTUSblog's latest posted STATPACK, as of May 1, Chief Justice Roberts and Justice Kennedy have joined the same opinion 88% of the time this Term — the second most common pairing of Justices, just behind Souter/Breyer at 90%.

  Anyway, that's my tentative speculation about why there are fewer 5-4s so far this Term. I may be way off, and at the end of the Term I may be singing a very different tune, but that's my guess for now.
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Tuesday, May 27, 2008

Favorite War Films:

In honor of Memorial Day, one person's list of favorite war films (via Instapundit). I have to agree with the Comments that there are several notable omissions from the list, including Patton, Hamburger Hill, The Dirty Dozen, and The Great Escape.

On a purely personal note, although I am quite happy about the end of the Cold War and all that, one downside is the end of Cold War films. In my experience there is a cohort of early-40's men for whom the exclamation "Wolverines!" has deep resonance.

Ok, maybe not really that deep and maybe not really that many of us and maybe not that many of us who really consider this to be a major cost of the end of the Cold War...

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A devastating argument against SSM:

Comment of the day from the Independent Gay Forum:

Here's the problem with gay marriage: It used to be that if you were over 40 and unmarried, people thought you were gay. If gay marriage becomes acceptable, now, if you're over 40 and unmarried, people will think it's because you're unattractive! :(


Indiana Jones and the Image of Academics in Pop Culture:

In this Washington Post op ed, real-life archeologist Neil Asher Silberman complains that the Indiana Jones movies give an inaccurate portrayal of archeologists to the public:

As someone who's been involved in archaeology for the past 35 years, I can tell you that Indiana Jones is not the world's most famous fictional archaeologist; he's the world's most famous archaeologist, period. How many people can name another? Whether I'm sitting on a plane, waiting in an office or milling around at a cocktail party, the casual mention that I'm an archaeologist inevitably brings up Indiana Jones. People conjure up images of gold, adventure and narrow escapes from hostile natives. And while "Indiana Jones and the Kingdom of the Crystal Skull" will almost certainly break worldwide box office records, it will also spread another wave of viral disinformation about what archaeologists actually do.

I know that the Indiana Jones series is just a campy tribute to the Saturday afternoon serials of the 1930s and the B-movies of the 1950s, but believe me, it totally misrepresents who archaeologists are and what goals we pursue....

...[T]he picture of the vine-swinging, revolver-toting archaeological treasure hunter is all wrong. Gone are the days when all that mattered was museum-quality treasure, and the "natives" didn't matter at all.....

[T]oday, the rules are different, and the professional attitude of archaeologists has changed. In place of loners acting on hunches have come teams of specialists in anthropology and the natural sciences who work closely with local scholars and administrators to excavate and painstakingly document their sites centimeter by centimeter. Individual objects are now less important than contexts; the goal is not to collect exotic or mystical artworks but to fit pieces together to form new ideas about history.

I'm sure that Silberman is right to claim that Indiana Jones misrepresents archeology (though it's worth keeping in mind that three of the four movies are set more than 70 years ago, when professional norms may have been different). But it's hard for me to muster much sympathy for his position. To the extent that the Indiana Jones movies really do determine the public's perception of archeologists, it's a much more positive portrayal than the pop culture image of academics from virtually any other discipline. Most academics would be happy to associated with a discipline whose visible symbol is a professor who saves valuable artifacts from pillage and destruction and bravely fights the Nazis. Consider, by contrast, the pop culture portrayal of law professors in movies such as The Paper Chase (unfeeling classroom tyrant), and Legally Blonde (sexual harrasser of female students).

Ultimately, however, I'm not too worried if academics (including law professors) are portrayed inaccurately in the movies. Almost anyone who has gone to college knows that real academics bear little resemblance to those on the big screen. There's a good reason for that: most real academics' lives simply aren't exciting enough to make for a good Hollywood script. I suspect that film-goers realize this, and therefore don't expect real archeology professors to be much like Indiana Jones.

Still, if I have to belong to a discipline whose public image is determined by a movie character, I'd much rather it be Indiana Jones than Professor Charles Kingsfield.

UPDATE: Silberman somewhat undercuts his main thesis by pointing out that some real-world archeologists have been deliberately imitating Indiana Jones:

Many archaeologists have enthusiastically embraced the Hollywood fantasy, borrowing a bit of Indiana Jones's mystique for themselves. Zahi Hawass, secretary general of Egypt's Supreme Council of Antiquities and archaeological czar of the relics and tombs of ancient Egypt, recently raised funds for charity on a U.S. tour by selling autographed copies of his trademark Indiana Jones hat. The National Science Foundation has just put up an Indiana Jones-themed home page, complete with bullwhip and fedora, and the Archaeological Institute of America, a venerable academic organization of classical archaeologists and art historians, has elected Harrison Ford to its board of directors, in tribute to his "significant role in stimulating the public's interest in archaeological exploration." And professor Cornelius Holtorf of the University of Kalmar in Sweden has offered the opinion that "Indiana Jones is no bad thing for science," suggesting that the film series has attracted many students and supporters to real-life archaeological work.

If "many" archeologists are indeed embracing the Jones image, it's an interesting example of Hollywood shaping reality even when it (initially) reflects it inaccurately. It reminds me of how real-life Mafiosi began to imitate the mannerisms of the fictional ones depicted in The Godfather.

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I Have Fallen Terribly Behind in the John G. Roberts Umpire Watch, largely because the ideological valence of the current Supreme Court Term has seemed so different from that of last Term. If last Term was about 5-4 battles and Justices reading angry dissents from the bench, this Term has so far been more about lopsided victories and much more muted language. That makes it kinda boring to tabulate cases.

  Today's 7-2 decision in CBOCS West v. Humphries is an interesting example of the apparent trend. Back in February, before the argument, Emily Bazelon suggested in Slate that CBOCS would be this Term's Ledbetter:
  On Wednesday, the Supreme Court will hear a new employment discrimination case that could also shake up the law of the land and leave the court's liberal dissenters apoplectic. This one may not only prune back employees' rights under the particular statute at issue, but also help the Supreme Court's conservatives rein in discrimination suits more generally. . . .
  Unless Kennedy changes his course, which is doubtful, the court's right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws. You can imagine the opinion to be written this spring, perhaps by Alito or Chief Justice John Roberts. There will be no need to get fiery—that's not these new justices' style. Instead, it can all seem unremarkable and straightforward: Congress didn't say retaliation, so Hendrick Humphries, you don't get your retaliation suit. Oh, and by the way, we look forward to citing this opinion the next time a screwed-over plaintiff comes around.
  Emily notes today at the Slate Convictions blog that the case played out very differently:
  Instead, Justice Stephen Breyer's opinion — joined by all the justices but Antonin Scalia and Clarence Thomas — relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."
  Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading.
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In the Mail: Benjamin Wittes is one of my favorite commentators who writes on how the U.S. government should respond to the threat of terrorism; he is always informed, balanced, and thoughtful. Given that, I was delighted to learn that he has a new book that will be out on June 19th: Law and the Long War: The Future of Justice in the Age of Terror. I've skimmed through parts of the book, and it looks like a must-read for anyone who wants to think deeply about how the government should respond to the terrorist threat. Plus, it will annoy the hardliners on both sides, which is usually a good thing.
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"Don't Ask, Don't Tell," Unit Cohesion, Lesbians, and Gays in Mixed-Sex Units:

A common argument in favor of "don't ask, don't tell" — or of broader exclusion of homosexuals from military service — is that sexual tensions within a unit can seriously disrupt unit cohesion. I think that's a serious argument, which might indeed justify even what would otherwise be improper or even unconstitutional discrimination (though I stress the "might," since much depends on factual issues that I'm not confident about). And that's true not just about exclusion of gays and lesbians, but also about exclusion of women from combat units, something that indeed would be unconstitutional outside the military (though I agree there are other concerns supporting such exclusion as well, for instance the risk of sexual abuse of women who are taken prisoner by the enemy).

But what explains the exclusion of lesbians? Lesbians presumably serve in mixed-sex units already. Even if there are a few units that are all-women (which I highly doubt, except perhaps in traditionally female roles, such as nursing), they will certainly not be the sorts of combat units in which unit cohesion under fire is especially important. If anything, an openly lesbian woman in a mixed-sex unit is likely to create less sexual tension in that unit than a straight woman would (since the lesbian would likely have many fewer potential sexual partners within that unit than the straight woman).

One possible answer is that unit cohesion requires exclusion of homosexual men, and for reasons of sex equality the same rule needs to be applied to homosexual women. But that can't be right: After all, the military already discriminates based on sex in job assignments. If we tolerate sex-based exclusion of women (straight and gay) from combat roles, then why not equally tolerate sex-based inclusion of homosexual women even when there are overriding reasons why homosexual men need to be excluded?

Relatedly, what explains the exclusion of gay men from mixed-sex units, including lots of noncombat units? Again, an openly gay man in a mixed-sex unit is likely to create less sexual tension in that unit than a straight man or straight woman would. It's one thing to say "We have all-straight-male units, so the addition of anyone with whom sexual tension will be especially likely will undermine unit cohesion and military effectiveness." But once we allow women into the units, presumably on the view that sexual tension in those units doesn't much harm effectiveness (perhaps because sexual tension harms that effectiveness primarily in combat units), what's the unit cohesion rationale for nonetheless excluding lesbians or gays?

Now perhaps this reveals that the real rationale is something else, for instance the fear that many straight men and women will stop enlisting if they know there will be a few gays and lesbians around them (though surely most straight men and women must realize there will indeed be some gays and lesbians around, even if those gays and lesbians are in the closet), or concern about privacy in group showers and the like. I'm not persuaded by these rationales, but others might be. Still, if those are the real rationales for excluding lesbians (and excluding gays from mixed-sex units), and the unit cohesion rationale just doesn't apply to those particular exclusions in any material way, then it would be helpful to acknowledge this, shift the discussion to those rationales, and set the unit cohesion rationale aside in those contexts.

All this is especially important, by the way, given the practical costs of exclusion to military efficiency: The military spends a lot of time, effort, and money on training people. Discharging thousands of people who are otherwise effective soldiers, but who have somehow revealed their homosexuality, means a lot more spending on training replacements. And of course such discharges may well substantially hurt unit cohesion, as people lose their longtime colleagues with whom they've become friendly and with whom they've learned to work well.

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YouTube of persecuted Ethiopian journalist:

A five minute YouTube production from the Independence Institute features an interview with persecuted Ethiopian journalist and cyberactivist Habtamu Dugo, as well as photographs from Ethiopia shot by Mr. Dugo.

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Proposed Porn Tax in California:

"This bill would impose a tax on the sale of, or the storage, use, or other consumption of, tangible personal property that is adult material, as defined, in this state at a rate of 25%."

It seems to me the tax would likely be unconstitutional. Content-based taxes on the sale of First-Amendment-protected materials (and recall that the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography) are generally forbidden, see Arkansas Writers' Project v. Ragland (1987).

The backers of the law seem to rely on the Court's "erogenous zoning" cases, which allowed special zoning restrictions on sexually themed entertainment on the grounds that this entertainment causes "secondary effects," in the form of crime by patrons and a decline in neighboring property values. But this law is not a zoning restriction, and would extend to places that have no consumers at all. The Court might be willing to recognize other effects as "secondary," such as the possible harms (e.g., sexually transmitted disease risks, or even mental health risks) to performers. But the law seems to be quite ill-fitted to avoiding or remedying such harms, given that the law isn't at all calibrated to these harms: For instance, the law applies to distribution of porn created outside California, which creates problems that aren't remotely remediable through a tax paid to California authorities.

Moreover, parts of the law's stated rationale -- that pornography "[e]ncourages unsafe sex by consumers," "[o]ften encourages sexually aggressive behavior towards women," and "may negatively influence [children's] developing attitudes towards sexuality and relationships" -- focuses on what the Court has treated as primary effects (the tendency of speech to change people's attitudes, and the behavior that flows from those changes) rather than "secondary effects." See, e.g., United States v. Playboy Entertainment Group, 529 U.S. 803 (2000). I think the "primary effects" / "secondary effects" distinction isn't conceptually sound. But it's pretty clear that these effects can't count, under the Court's precedents, as secondary effects.

The strongest defense of the tax would be that pornography, including constitutionally protected pornography, is different: Though it has some constitutional value, it's of lower value, and may therefore be more broadly restricted. The Court has seemingly adopted this view in some of its "erogenous zoning" cases and broadcast regulation cases.

Nonetheless, the Court has at other times disapproved of this "low-value speech" position; and more recently (for instance, in the Playboy case I cited above) it has generally judged content-based regulations of nonobscene pornography pretty much as it has judged content-based regulations of fully protected speech. Moreover, the erogenous zoning cases stress that they involve land use restrictions, and focus on the harms caused by the physical presence of pornography consumers on the parcel of land involved.

My strong suspicion, then, is that if the law is enacted, both lower courts and -- if it comes to this -- the Supreme Court will ultimately strike this tax down just as they would other content-based taxes.

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"Stuck" with Gitmo:

The military would like to send several dozen foreign detainees held at Guantanamo Bayback to their home countries. The problem is these nations won't take their people back. As a consequence, Secretary of Defense Robert Gates says, "we are stuck" with Guantanamo.

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Monday, May 26, 2008

A Borkean Critique of Robert Bork's Case for Censorship:

Last summer, I was part of a Federalist Society symposium on the work of Judge Robert Bork. The presentations from the conference have now been published by the Harvard Journal of Law and Public Policy. I was on a panel considering Bork's controversial 1996 book, Slouching Towards Gomorrah: Modern Liberalism and American Decline, which argued that extensive government "censorship" (Bork's term, not mine) of sexually explicit, violent, and other harmful media is essential to curbing various social pathologies. My brief symposium essay critiquing Bork's argument is now available on SSRN. Here's the abstract:

In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

In an earlier panel at the same symposium, Judge Frank Easterbrook summarized Judge Bork's outstanding work on antitrust regulation as showing that government should not "second-guess" markets. In my view, this point applies just as readily to government regulation of the culture.

I thank the Federalist Society for including me in this event despite (actually, because), of my strong disagreement with Judge Bork's views on the issues discussed by our panel.

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House Passes Bill Authorizing Suing OPEC.--

I watched some of the recent Congressional grilling of oil industry executives and was struck by how gracious they were. I would have been so indiscreet as to respond by suggesting that Congress was far more to blame for high oil prices than Big Oil.

Mark Steyn also seems to have had negative thoughts about the Congressional hearings:

I was watching the Big Oil execs testifying before Congress. That was my first mistake. If memory serves, there was lesbian mud wrestling over on Channel 137, and on the whole that’s less rigged. Representative Debbie Wasserman Schultz knew the routine: “I can’t say that there is evidence that you are manipulating the price, but I believe that you probably are. So prove to me that you are not.”

Had I been in the hapless oil man’s expensive shoes, I’d have answered, “Hey, you first. I can’t say that there is evidence that you’re sleeping with barnyard animals, but I believe that you probably are. So prove to me that you are not. Whatever happened to the presumption of innocence and prima facie evidence, lady? Do I have to file a U.N. complaint in Geneva that the House of Representatives is in breach of the Universal Declaration of Human Rights?”

But that’s why I don’t get asked to testify before Congress. So instead the Big Oil guy oozed as oleaginous as his product before the grand panjandrums of the House Sub-Committee on Televised Posturing, and then they went off and passed by 324 to 82 votes the so-called NOPEC bill. The NOPEC bill is, in effect, a suit against OPEC, which, if I recall correctly, stands for the Oil Price-Exploiting Club. . . .

“It shall be illegal and a violation of this Act,” declared the House of Representatives, “to limit the production or distribution of oil, natural gas, or any other petroleum product… or to otherwise take any action in restraint of trade for oil, natural gas, or any petroleum product when such action, combination, or collective action has a direct, substantial, and reasonably foreseeable effect on the market, supply, price, or distribution of oil, natural gas, or other petroleum product in the United States.”

Er, okay. But, before we start suing distant sheikhs in exotic lands for violating the NOPEC act, why don’t we start by suing Congress? After all, who “limits the production or distribution of oil” right here in the United States by declaring that there’ll be no drilling in the Gulf of Florida or the Arctic National Mosquito Refuge? . . .

[I]f the House of Representatives has now declared it “illegal” for the government of Saudi Arabia to restrict oil production, why is it still legal for the Government of the United States to restrict oil production? In fact, the government of the United States restricts pretty much every form of energy production other than the bizarre fetish du jour of federally mandated ethanol production.

I view the oil crisis as mainly resulting from two forces, Supply and Demand: (1) supply restrictions — substantial government restrictions on mining coal and drilling for oil, and (2) huge increases in demand from newly emerging economies (eg, China, India, Brazil).

When is Congress going to let capitalism reduce our energy problems?

As for restrictions on coal, this one is the most galling:

A large part of America's energy dependence on foreign sources can be traced to Sept. 18, 1996, when President Bill Clinton stood on the edge of the Grand Canyon on the Arizona side and signed an executive proclamation making 1.7 million acres of Utah a new national monument.

Why would he dedicate a Utah monument while standing in Arizona? Well, this federal land grab was done without any consultation with the governor of Utah or any member of the Utah congressional delegation or any elected official in the state. The unfriendly Utah natives might have spoiled his photo-op.

The state already had six national monuments, two national recreation areas and all or part of five national forests. Three-quarters of Utah already was in federal hands. Still, the land grab was sold as a move to protect the environment. . . .

In fact, the declaration of 1.7 million Utah acres as a national monument, thereby depriving an energy-starved U.S. up to 62 billion tons of environmentally safe low-sulfur coal worth $1.2 trillion and minable with minimal surface impact, was a political payoff to the family of James Riady.

He's the son of Lippo Group owner Mochtar Riady. James was found guilty of — and paid a multimillion dollar fine for — funneling more than $1 million in illegal political contributions through Lippo Bank into various American political campaigns, including Bill Clinton's presidential run in 1992.

Clinton took off the world market the largest known deposit of clean-burning coal. And who owned and controlled the second-largest deposit in the world of this clean coal? The Indonesian Lippo Group of James Riady. It is found and strip-mined on the Indonesian island of Kalimantan.

The Utah reserve contains a kind of low-sulfur, low-ash and therefore low-polluting coal that can be found in only a couple of places in the world. It burns so cleanly that it meets the requirements of the Clean Air Act without additional technology.

"The mother of all land grabs," Sen. Orrin Hatch, R-Utah, said at the time. He has called what was designated as the Grande Staircase of the Escalante National Monument the "Saudi Arabia of coal." . . .

Rep. James Hansen, R-Utah, pointed out that a large portion of the coal-rich Kaiparowits Plateau within the monument belonged to the children of Utah. When Utah became a state in 1896, about 220,000 acres were set aside for development, and a trust fund was created to collect and hold all the revenues directly for the benefit of schools.

Margaret Bird, trust officer for the fund, said that because the land will not be developed, the schools stand to lose as much as $1 billion over the next 50 years.

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Memorial Day:

Although it is perhaps a little late in the day, I wanted to take this opportunity to express our appreciation for those who have died fighting for this country. And also to the living veterans of past wars, and those serving in the combat zones in Afghanistan and Iraq even as I write these words.

Your many sacrifices have not gone unnoticed.

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Memorial Day Blawg Review:

The Memorial Day Blawg Review is here. For prior editions see here.

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Problems with the UN System of Carbon Trading.--

Under the UN system of carbon trading, it seems that most of the projects that receive money for reducing carbon emissions would have been built anyway. Thus, most payments do not actually reduce emissions. At least that is the conclusion of two recent studies. From the Guardian's environmental editor (tip to Tim Blair):

Billions of pounds are being wasted in paying industries in developing countries to reduce climate change emissions, according to two analyses of the UN's carbon offsetting programme.

Leading academics and watchdog groups allege that the UN's main offset fund is being routinely abused by chemical, wind, gas and hydro companies who are claiming emission reduction credits for projects that should not qualify. The result is that no genuine pollution cuts are being made, undermining assurances by the UK government and others that carbon markets are dramatically reducing greenhouse gases, the researchers say.

The criticism centres on the UN's clean development mechanism (CDM), an international system established by the Kyoto process that allows rich countries to meet emissions targets by funding clean energy projects in developing nations. Credits from the project are being bought by European companies and governments who are unable to meet their carbon reduction targets. . . .

A working paper from two senior Stanford University academics examined more than 3,000 projects applying for or already granted up to $10bn of credits from the UN's CDM funds over the next four years, and concluded that the majority should not be considered for assistance. "They would be built anyway," says David Victor, law professor at the Californian university. "It looks like between one and two thirds of all the total CDM offsets do not represent actual emission cuts." . . .

The Stanford paper, by Victor and his colleague Michael Wara, found that nearly every new hydro, wind and natural gas-fired plant expected to be built in China in the next four years is applying for CDM credits, even though it is Chinese policy to encourage these industries.

"Traders are finding ways of gaining credits that they would never have had before. You will never know accurately, but rich countries are clearly overpaying by a massive amount," said Victor.

A separate study published this week by US watchdog group International Rivers argues that nearly three quarters of all registered CDM projects were complete at the time of approval, suggesting that CDM money was not needed to finance them.

"It would seem clear that a project that is already built cannot need extra income in order to be built," said Patrick McCully, director of the thinktank in California. "Judging additionality has turned out to be unknowable and unworkable. It can never be proved definitively that if a developer or factory owner did not get offset income they would not build their project."

Yesterday a spokesman for the CDM in Bonn said the fund was significantly cutting emissions and providing incentives for companies to employ clean technologies: "There is a responsible level of scrutiny. The process is in continual reform. All the projects are vetted independently and are then certified by third parties. There are many checks and balances and we can show how all projects are vetted."

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Bizarre Harvard Law Review Student Note:

Not for the first time of late, the HLR has published a student piece that doesn't quite fit the genre, called NEVER AGAIN SHOULD A PEOPLE STARVE IN A WORLD OF PLENTY. To give you the gist, the author writes:

You have now read this Note and you are equipped with the knowledge that $200 can save a child’s life. No claim of ignorance can be supported at this point. In fact, if you would like to make a donation, the toll-free number for UNICEF is 1-800-486-4233. They take credit card donations over the phone, or you can go online at www.unicef.org. Here is some time to call right now. ****

If there is any traditional legal analysis in this Note, it's not obvious (though I admit that I didn't read the entire thing). H/T: Above the Law.

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Rube Goldberg Video, Fun for Small Kids:

Thanks to my friend Fred Bernstein for the pointer; my kids (age 3 and 4) are enjoying it, at least mildly; try it on yours:

Reader NickW reports that these are connected to the Japanese educational television program PythagoraSwitch.

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"Vice Capades":

I'm with InstaPundit on this -- the video (chiefly about women target-shooting) is actually quite positive towards target-shooting, but where's the "vice"? Deliberate gun misuse is a serious crime, careless gun use is folly (and sometimes) a crime, careful gun use and training is good, but none strikes me as "vice." I realize that "vice capades" is partly a joke, but here it doesn't seem entirely a joke -- see the caption, "Follow Samantha Henig on her journeys into vice subcultures. In this episode, Henig visits a shooting range in the unlikeliest of places."

Oh, and a piece of advice for one of the women in a video: When you go target-shooting, and at least some of the weapons are semi-automatics, don't wear a low-cut shirt. The ejected casings from the fired rounds are hot, they often get ejected backwards and to the side, and there are places you don't want them to get stuck, even for the second or two it takes to remove them. No threat to life, but unpleasant. I know from personal observation.

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Domestic Infighting Over Domestic Security:

State and local governments are upset by the imposition of various requirements for the receipt of federal homeland security funds. In order to receive full federal funding, state and local governments are required to develop plans to ensure they are prepared for terrorist threats, such as the use of improvised explosive devices (IEDs), among other things. Yet local officials would rather focus their energies on other priorities, such as local gun violence and drug trafficking. As the NYT reports:

“I have a healthy respect for the federal government and the importance of keeping this nation safe,” said Col. Dean Esserman, the police chief in Providence, R.I. “But I also live every day as a police chief in an American city where violence every day is not foreign and is not anonymous but is right out there in the neighborhoods.”

The demand for plans to guard against improvised explosives is being cited by state and local officials as the latest example that their concerns are not being heard, and that federal officials continue to push them to spend money on a terrorism threat that is often vague. Some $23 billion in domestic security financing has flowed to the states from the federal government since the Sept. 11 attacks, but authorities in many states and cities say they have seen little or no intelligence that Al Qaeda, or any of its potential homegrown offshoots, has concrete plans for an attack.

Local officials do not dismiss the terrorist threat, but many are trying to retool counterterrorism programs so that they focus more directly on combating gun violence, narcotics trafficking and gangs — while arguing that these programs, too, should qualify for federal financing, on the theory that terrorists may engage in criminal activity as a precursor to an attack. . . .

Most of the $23 billion in federal grants has been spent shoring up local efforts to prevent, prepare for and ferret out a possible attack. Because official post-9/11 critiques found huge gaps in communication and coordination, billions of dollars have been spent linking federal law enforcement and intelligence authorities to the country’s more than 750,000 police officers, sheriffs and highway patrol officers. Many Homeland Security-financed “fusion centers,” designed to collect and analyze data to deter terrorist attacks, have evolved into what are known as “all-crimes” or “all-hazards” operations, branching out from terrorism to focus on violent crime and natural disasters. . . .

In Massachusetts, Ms. Kayyem regarded a potential grant this year of $20 million in federal homeland security money as too important to pass up, even though she said that technically one-quarter of it had to be spent on I.E.D.’s to qualify for the money. So, Massachusetts officials wrote a creative proposal, pledging to upgrade bomb squads in many of the state’s 351 cities and towns. It also proposed buying new hazardous-material suits, radios to communicate between law enforcement agencies and explosive-detection devices.

But Ms. Kayyem acknowledged that much of the equipment was chosen to serve double duty. Hazmat suits could be useful in the event of a bombing, but would be even more help with accidents that state officials regarded as much more probable, like chemical spills on the Massachusetts Turnpike.

The Department of Homeland Security may well impose substantial conditions on the receipt of federal funds. In practice, this simply means that a portion of the grant money must get spent on federal priorities. So, if a $20 million grant requires spending $5 million, then the state only gets $15 million to spend. The first $5 million may be wasted -- the federal government often imposes "one-size-fits-nobody" mandates -- but the mandate does not impose an added burden on the state, which always retains the option of not taking the federal funds in the first place.

From what is reported in the NYT story, it appears that states want their federal money with no strings attached so they may spend it on their own security priorities. But if that is how states want to spend money, why should federal taxpayers foot the bill? To be sure, the federal tax burden makes it more difficult for state and local governments to raise funds for state and local priorities. But the way to address this is not to dole out more federal money with fewer strings attached. Rather, it is to send less money to Washington in the first place. Yet state and local officials rarely make that case.

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The History of Memorial Day: Read about it here.
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Sunday, May 25, 2008

More Fun With Comcast:

Readers may recall the following from a post of mine last year:

I called Comcast to set up cable installation. They sent a complete moron, who wanted to run a cable from the third floor to the first floor, by way of staircases and hallways. I called Comcast, and they offered to send a new technician two days later. No one showed up. I called Comcast, and was told the technician must be running late. He never showed. I called again, and was told that the previous two folks were wrong, that no one was coming to my house that day, that someone would call me that day to set up an appointment later in the week. Someone did. And then didn't show up for the appointment. I decided we can live without cable.

My wife has now decided she wants cable in our new house. I urged her not to bother with Comcast, but she insisted. Someone was scheduled to show up on Wednesday between noon and 3. He actually showed up at 12:15. But when he noticed we needed an outlet to be installed in one room, he claimed not to have a drill with him, and said he would go get one and be back within an hour. We seriously doubted that cable installers drive around without drills in their van, and suspected he just wanted to go to lunch. Wrong. He never returned. We called Comcast, which had no record that anyone was sent to our house, and, even after a consultation with the dispatcher, claimed to have no idea who had showed up, or why he didn't return. We left a voicemal message on the installer's cell phone (he had called us earlier before his brief appearance). At around 5:00 pm, we decided to take our kids to a neighborhood playground. On the way there, we spotted the installer in his Comcast van driving in the direction of our house. Maybe he was returning after all? We rushed home, but he never showed.

Phone complaints to Comcast resulted in no sympathy, very meager, prospective compensation (a small credit to our future cable bill), and a promise that someone would come to our house Sunday afternoon to install the cable. You can guess the rest: no one showed up, there was no record of who, if anyone, was supposed to show up, and so forth.

I really wonder how Comcast manages to stay in business, even with its monopoly rents--after all, there is some competition from FIOS and satellite.

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Sunday Song Lyric (& Index):

Godsmack, "Running Blind," off The Other Side. It begins:

Can’t find the answers
I’ve been crawling on my knees
Looking for anything
To keep me from drowning
Promises have been turned to lies
Can’t even be honest inside
Now I’m going running backward
Watching my life wave me goodbye

Running blind
I’m running blind
Somebody help me see I’m running blind

The full lyrics are available at Smackfans.com. Here's a live acoustic version of the song.


SUNDAY SONG LYRIC 2008 INDEX

May 18 - Gene DePaul & Sammy Cahn, Teach Me Tonight
May 11 - [Mothers' Day Edition]
May 4 - Husker Du, I Apologize
Apr. 27 - Mark Erelli, The Farewell Ball
Apr. 20 - John Rzeznik (Goo Goo Dolls), Iris
Apr. 13 - The Raconteurs, Salute Your Solution
Apr. 6 - Frank Zappa, The Torture Never Stops
Mar. 16 - Spitzer Song Lyric
Mar. 16 - George & Ira Gershwin, Our Love Is Here to Stay
Mar. 9 - Aqua, Barbie Girl
Mar. 2 - Edward Heymann & Johnny Green, I Cover the Waterfront
Feb. 24 - Alan Menken & Stephen Schwartz, Happy Working Song
Feb. 17 - Foo Fighters, Long Road to Ruin
Feb. 10 - Amy Winehouse, You Know I'm No Good
Feb. 3 - Bernard Seigal (aka Buddy Blue), Gun Sale at the Church
Jan. 27 - The Pretenders, My City Was Gone
Jan. 13 - Squeeze, Melody Motel
Jan. 6 - Britney Spears, Piece of Me

Prior indexes are here, here, and here.

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The Birmingham Parade and the First Amendment:

I agree entirely with Dale that denying a parade permit on content-based grounds — as the Mayor's state reasons are — is unconstitutional, and clearly so. For nearly 70 years, the Court has made clear that the streets, sidewalks, and parks, even if they are government property, are generally "traditional public fora" on which the government has no extra power to impose content-based restrictions (beyond the usual First Amendment exceptions, such as obscenity, threats, and the like). The government may not refuse to allow a parade on the grounds that it doesn't approve of the parade's message. (The government isn't even allowed to institute content-neutral bans on all parades, though it can impose some content-neutral regulations.)

The government need not allow banners on other parts of its property; but even there, it must act in a viewpoint-neutral manner when it comes to private speech — if it allows some speakers to put up such banners as their own speech (as opposed to expressly endorsing them as the government's speech), then it can't refuse access to other speakers based on those speakers' viewpoints.

The mayor is of course not constitutionally obligated to issue any proclamation supporting the parade — but he is constitutionally obligated not to deny parade permits based on content, or to deny access to most other parts of city property based on viewpoint.

UPDATE: Dale Carpenter reports that "The mayor has reversed his decision and has now agreed to issue the parade permit."

Related Posts (on one page):

  1. The Birmingham Parade and the First Amendment:
  2. Birmingham mayor denies gay parade permit:
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Birmingham mayor denies gay parade permit:

According to the Birmingham News, the mayor has rejected a request for a gay pride parade in the city:

Birmingham Mayor Larry Langford won't sign a proclamation for an annual gay pride celebration or allow banners on city property, and said he will not grant the sponsoring group a parade permit.

Langford said he turned down the requests this week from Central Alabama Pride because it is inappropriate for government to endorse a lifestyle. Pride Week is next month and often includes a parade on Southside and other events.

"My policy is don't ask because it's not my business, and don't put me in the position to make it my business," Langford said Friday. "I don't condone it, but I also am not sitting in judgment on anyone."

Still Langford's stance angered some members of the city's gay community.

"It doesn't hurt my feelings, because we're not politically on the same page. I'm offended more so," said Ronald Simoneau, a participant in the parade since 1989. . . .

"I did the first gay pride march in 1989," Simoneau said "At that time, even the police were a little worried then, but we've never had a problem at all." . . .

The story gives no detail about the criteria the mayor may use to deny a permit under the city's code; nor does it say anything about whether the mayor's decision may be appealed. It may be that the mayor has other reasons to deny the permit but that those reasons are not given in the story.

Under the First Amendment, an official charged with reviewing permits for speech in a public forum cannot deny applications based on the content of the speech in the parade or demonstration. The government doesn't get to pick and choose speakers and messages that may be heard in a public forum based on whether the government likes or dislikes those messages, or is afraid the government might be thought to approve them. That's what the mayor is doing when he says he does not want to appear to "endorse" the "lifestyle" advocated by the parade. If there are no content-neutral reasons for the denial of the permit — such as a scheduling conflict with another parade — the decision is unconstitutional.

UPDATE: The mayor has reversed his decision and has now agreed to issue the parade permit.

Related Posts (on one page):

  1. The Birmingham Parade and the First Amendment:
  2. Birmingham mayor denies gay parade permit:
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