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Saturday, June 21, 2008

How Secular are Academics?

Many people, especially among political conservatives, believe that most academics are secular, possibly even hostile to religion. However, a recent study of academics' religious beliefs by the Institute for Jewish & Community Research suggests otherwise (some of the study's results have already been cited in our discussion of supposed anti-religious bigotry in academia). It is indeed true, that academics are on average less religious than the general public. However, far more academics are religious believers than atheists or agnostics. The prevalence of religious belief in academia undercuts claims, such as Rick Hills', that "Secular academics typically do not know many religious believers — especially not many overly devout Christians — and their isolation leads to the most naively lurid fantasies about what religious belief entails." It also reinforces my argument that academics' unfavorable views of Evangelical Christians and Mormons are mostly due to hostility to these groups' conservative political ideologies rather than a generalized antagonism to religion as such.

The IJCR study shows that 66% of academics believe in God, while only 19% say that they don't. This is a fairly overwhelming majority of theists, even though smaller than the 93% of the general public who say they believe in God. Some 66% of academics (compared to about 85% of the general public) identify with a particular religious denomination such as Catholic, Evangelical, Jewish, or Muslim. With the important exception of Evangelical Christians (33% of the general public, but only 11% of academics), most major religious groups are represented among academics in roughly the same or higher proportions as in the general public.

It is, of course, possible that many theistic academics are still "secular" in the sense that religion doesn't play an important role in their lives. However, the IJCR survey shows that 63% of academics say that religion is "very important" or "somewhat important" to them. This is a lower figure than the 85% of the general public who fall into these two categories, but still suggests that religious belief is important to a large majority of academics. Further, 44% of academics say they attend religious services at least once per month (compared to 56% of the general public), and 73% of academics (compared to 86% of the general public) want their children to receive religious training.

Moreover, the gap between the general public's religiosity and that of academics may be smaller than it appears. Members of the general public are probably more likely to overstate their religiosity in surveys than are academics. There is a great deal of prejudice against atheists and agnostics in the general population, with some 50% of the public believing that it is impossible for one to be "moral" or have "good values" without believing in God. In academia, by contrast, the IJCR survey found that only 18% of faculty have a "cool" or "unfavorable" view of atheists (compared to about 50% of the general public who expressed similar "unfavorable" views of atheists in other surveys). Thus, there is much less incentive for academic atheists to hide their beliefs than for those in the general public to do so. There is also less incentive for academic theists to exaggerate their religiosity, church attendance, etc., than for those in the general population. But although academics are far more tolerant of atheists than is the general public, the overwhelming majority are not atheists themselves.

Like many other studies, the IJCR survey finds that academics differ enormously from the general public in their political orientation, with academics being far more left-wing. That is where most of the really important attitudinal differences between academia and the general public lie.

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Epstein on Boumediene:

The University of Chicago's Richard Epstein has an interesting op-ed on the Boumediene decision in today's NYT. Here's a taste:

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president. (Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

Yet Boumediene is rich in constitutional ironies. In addressing whether non-Americans detained outside the United States are entitled to habeas corpus, the court passed up an opportunity to clarify the law, and instead based its reasoning, flimsily, on a habeas corpus case that was decided just after World War II. This is too bad, because issues as important as habeas corpus should turn not on fancy intellectual footwork but on a candid appraisal of the relevant facts and legal principles.

UPDATE: Professor Bainbridge comments on Epstein's article here, and Epstein replies.

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No Smoking (Except for Pot):

Under a new smoking ban that will take effect in the Netherlands July 1, tobacco smoking in coffee shops and other public places will be prohibited. Marijuana smoking, on the other hand, will still be permitted.

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Choosing Corn Over Conservation:

The New York Times reports that the federal government is considering allowing farmers to plant corn on lands that have been set aside for conservation purposes under various government programs. The immediate impetus for the potential policy change is the midwestern floods, but the increase in food prices brought about by Washington's long love affair with ethanol looms large in the background. Were the federal government not requiring the use of ethanol as a motor fuel, the floods would not have had as large an impact on food prices. This is yet more evidence that there is nothing "pro-environment" about corn-based ethanol.

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Friday, June 20, 2008

Bill Stuntz on "Secular Universities and Evangelical Christians":

Bill Stuntz, a longtime member of evangelical churches, adds some thoughts based on his personal experience to our discussion on religion and the academy over at "Less Than the Least."

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[Anuj Desai, guest-blogging, June 20, 2008 at 5:34pm] Trackbacks
Legislatures, Institutions, and Constitutional Theory:

For my final post, I thought I’d begin a discussion of what I view as some of the broader implications of the examples I’ve been discussing. On first blush, I admit, my work seems incredibly obscure and esoteric. Even if it isn’t obscure -- actually, even if it is -- one might still legitimately ask what can be gained by such a detailed look into these examples. Who, after all, would want to look at something like “The Constitution” through the lens of something like the Post Office? I’ll have more to say about how I came to look at the Post Office at the end of this post -- for now, suffice it to say that I did not set out trying to understand the impact of the Post Office on constitutional doctrine -- but still it just seems downright weird. Beyond a simple understanding of the examples in and of themselves, is there anything else?

Well, I say “begin a discussion” because this is where I’m at the beginning of thinking things through seriously and would welcome comments. As I described on Tuesday, I think of the work as providing examples of a four-step process of constitutional lawmaking: (i) Congress passes a statute; (ii) The statutory provisions give an institution certain attributes; (iii) Over time, social practice embeds those attributes into the institution; and (iv) The courts then takes those embedded attributes and write them, in different ways, into constitutional doctrine.

In the comments on Tuesday, Orin suggested that this might be a broader phenomenon. All I can say is I certainly hope he’s right. Surely it is the rare academic who would content him/herself with the rather underwhelming claim, “I have developed the definitive theory of the relationship between the Post Office and the Constitution, so there!”

To me, one interesting thing about these examples is that this process doesn’t really comport with our ordinary conception about the sources of constitutional law. If we think, for example of Philip Bobbitt’s famous typology of constitutional arguments or of the constant concern about the counter-majoritarian difficulty, the idea that judicial constitutional lawmaking might derive in some ways from legislative determinations seems odd.

Of course, plenty of people have questioned the counter-majoritarian difficulty as a descriptive matter by simply denying that the Supreme Court acts in a counter-majoritarian manner. The most well-known articulations of this idea are by Robert Dahl and Finley Peter Dunne’s Mr. Dooley (“the supreme coort follows th’ iliction returns”). But, while the constitutional principles in my examples are of course “majoritarian” in the sense that they were legislatively enacted, the time lag between the legislation and the Court’s rulings obviously makes “th’ iliction returns” irrelevant. So there’s clearly something else going on.

I end the second article with an exploration of work in constitutional theory that can situate my examples, work by Robert C. Post and William Eskridge & John Ferejohn, among others. And, in my first article, I also look at work by Frederick Schauer. None of this work fits perfectly, however, and this is in part why I find this form of constitutional lawmaking so intriguing.

Post, for example, has written about the dialectical relationship between judicial constitutional law making and what he refers to as “constitutional culture,” which he defines as that “specific subset of culture that encompasses extrajudicial beliefs about the substance of the Constitution”; Eskridge & Ferejohn have written about what they refer to as “super-statutes,” statutes that fall into an “intermediate category of fundamental or quasi-constitutional law.” They argue that such statutes can be “imperial,” meaning that they can “affect other statutory schemes and even constitutional doctrine.” Schauer argues -- as a normative matter -- in favor of an institution-focused approach to the First Amendment. As I explain in the articles, all of this has something to say about my stories.

But, beyond these theorists, my articles also have a connection with -- what did Orin call him yesterday, the “blogfather”? -- Eugene. Allow me to explain. [And, I promise, he had no idea about this connection when he asked me to guest-blog.] Several people have asked how I came upon the Post Office as a subject of study. “Very circuitously” is the short answer. The slightly longer answer is this:

About six years ago, the Colorado Supreme Court held that the Colorado Constitution’s “Freedom of Speech and Press” Clause required that search warrants seeking certain book store records meet a higher standard than ordinary warrants and subpoenas. [A federal district judge in D.C. had done something similar in 1998 when Independent Prosecutor Starr sought records of Monica Lewinsky’s book purchases from Kramerbooks, a prominent independent bookstore in Washington, DC.]

A few years later, Eugene wrote an article entitled “Deterring Speech: When Is It ‘McCarthyism’? When Is It Proper?”, which among other things criticized the court’s reasoning. In the article, Eugene argued that seeking bookstore or library records was directly analogous to seeking all sorts of records that implicate people’s speech. Subpoenas of bookstores and/or libraries are, he wrote, “simply special cases of a more general and well-established phenomenon, subpoenas of information related to First Amendment activities.” And so why should they be treated differently from the many other kinds of subpoenas seeking information about First Amendment activity, subpoenas that never result in a heightened standard? As always, Eugene’s logic was impeccable, but something about the argument nagged at me. Why -- as a descriptive matter -- do courts make the distinction that Eugene had so convincingly explained was no distinction at all?

The answer that struck me was what sent me to look at the Post Office; what the courts had done in making it harder to subpoena a bookstore (and/or a library) was to protect, not individual free speech rights per se, but instead an institution that -- in a broad sense -- furthered First Amendment values. So, to understand privacy of bookstore/library records, my research took me to privacy of postal correspondence. And that, in turn, led me to the articles that form the basis of the series of posts I’ve written the past week. Eventually, though, my hope is to build on this work on the Post Office to try to understand other institutional contexts -- such as libraries -- that shape constitutional jurisprudence.

Of course, the connection I’m positing may be all wrong. After all, as a doctrinal matter, privacy of postal correspondence is viewed through the lens of the Fourth Amendment, not the First, and one can certainly make plenty of arguments that bookstores and libraries bear no resemblance to the Post Office. But I figure the best way to find out is to try the idea out here, where -- if I am wrong -- the blogfather will be right there to let me know.

Thanks again to Eugene for sharing this space with me and to you all for reading.

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A Law Clerk's Ode to the Vinson Court: In the latest Green Bag, John Q. Barrett has this fun little article (with some classic pictures) on some amusing lyrics about the Supreme Court written by William Rehnquist when he was a law clerk for Justice Jackson.
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Why I Love the Law, Reason #362: Because judges can write 85 pages of very serious analysis on the constitutionality of moving a zipper on a jacket. See today's en banc Fourth Amendment decision by the DC Circuit in United States v. Askew. The en banc court ended up taking a different view than the original divided panel: My coverage of the panel opinion from April 2007 is here. There are some interesting conceptual issues in play here that I'll probably blog about next week, but for now I wanted to just flag the decision so everyone is up to date on the latest in zipper jurisprudence. Thanks to How Appealing for the link.
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More on Academics and Hostility to Religion:

In his excellent recent post, co-blogger Todd Zywicki cites some data that shed light on academics' attitudes towards different religious groups. Overall, I think the data confirm my theory that most academics are not hostile to religion as such, but merely to those religious groups that they perceive (for the most part correctly) as politically conservative.

The study Todd cites shows that 53% of academics have an "unfavorable" view of Evangelical Christians and 33% say the same of Mormons. By contrast, only 13% have an unfavorable view of Catholics and 3% towards Jews. As Todd points out, Evangelical Christians and and Mormons are generally seen as politically conservative, while Jews tend to be liberal, and Catholics somewhere in between. Todd may well be right that academics' views of Evangelicals and Mormons are based on stereotypes rather than personal experience. However, the stereotype that these groups tend to be politically conservative is actually correct. For example, a recent survey found that 47% of evangelicals describe themselves as "conservative," while only 14% call themselves "liberal." A Pew survey found that 72% of white Evangelicals voted for the Republicans in the 2006 congressional elections. The numbers for Mormons are similar (majority-Mormon Utah is perhaps the most reliably Republican state in the country).

With the exception of attitudes towards Evangelical Christians, the percentage of academics who view various religious groups unfavorable is actually similar to or lower than the percentages of the general public who feel the same way. For example, Todd expresses surprise that 13% of academics have an "unfavorable" view of Catholics. But a 2007 Pew Survey shows that 14% of the general public take the same view. The 33 percent of academics who have an unfavorable view of Mormons is only slightly higher than the 27% of the general public who gave the same answer in the Pew survey. And the Pew study shows that a much higher percentage the general public have an unfavorable view of Jews and Muslims than the percentage of academics who do so; 35 percent of the general public have an "unfavorable" view of Muslims and 9 percent have an unfavorable view of Jews. Among academics, the equivalent figures are 22% and 3%. The study Todd linked to also cites data showing that academics take a more favorable view of Buddhists than does the general public. The Pew study shows that 19% of the general public view Evangelical Christians unfavorably, which is of course a much lower figure than the 53% of academics who do so.

Thus, the evidence shows that those religious groups that are viewed more negatively by academics than the general public are the ones that are (for the most part correctly) viewed as politically conservative.

Todd nonetheless partially rejects my political bias theory of academic attitudes for the following reasons:

So what about Ilya's thesis that religious bigotry is a proxy for political bigotry? There may be some truth to this. I suspect that Evangelicals and Mormons are generally perceived as political conservative[s] and Jews are perceived as politically liberal. Other views, such as Catholics and Muslims, I suppose fall somewhere in the middle when it comes to such stereotypes. But I don't think this can explain it all either. For instance, I think that most academics are quite tolerant of conservative Jews. I also suspect that academics probably think that it is ok for blacks to be Evangelical or Southern Baptist, even if they dislike white Evangelicals.

My own experience is that politically conservative Jews are not viewed more favorably by liberal academics than are other conservatives. The reason why this doesn't translate into unfavorable attitudes towards Jews more generally is that conservative Jews are exceptional and also that most of them are not conservative because of their religious beliefs. By contrast, the majority of politically aware white Evangelicals and Mormons are conservative, and that conservatism is often at least partially dictated by their religious commitments. As for black Evangelicals and Baptists, the fact that academics may view them more favorably than whites of the same religion is entirely consistent with my theory. Black Evangelicals and Baptists tend to be liberal (or at least to vote Democratic), whereas white ones tend to be conservative Republicans. Politically conservative blacks, by contrast, are not popular in academia, whether they are religious or not. Although I don't have survey data to prove it, anecdotal evidence suggests that it is harder to be a conservative or libertarian black in academia than to be a white academic with similar views - perhaps because some leftists view black conservatives and libertarians as "traitors" to their racial group.

To say that academics' hostility to certain religious groups is based on political ideology is not to say that such hostility is justified. As a general rule, I don't think it's defensible to have a negative view of an entire religious group merely because the majority of its members disagree with you on political issues. Be that as it may, what we have here is more a case of political intolerance than religious bigotry. Significantly, the percentage of academics who have an unfavorable view of various religious groups is, in most cases, the same as or lower than the percentage of the general public who feel the same way.

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But what's the evidence from Scandinavia?

You'll be relieved to know that, according to an unofficial count compiled by the Sacramento Bee, opposite-sex marriages in California contain equal numbers of men and women:

Based on a tally of the licenses Thursday – using first names as a guide – 60 percent of the same-sex newlyweds this week are lesbians and 40 percent are gay men. Among heterosexual couples – to no one's surprise – the gender breakdown is 50-50.

(Thanks to David Link for the pointer.)

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Dartmouth Election Wrap-Up:

Some readers have asked how the Dartmouth Association of Alumni election turned out--the result was that the pro-parity slate was defeated. This probably means the end of the AoA's lawsuit to enforce the 1891 Agreement that promised parity between elected and appointed trustees. In February, Dartmouth's Motion to Dismiss the lawsuit was denied on all three counts.

Joe Malchow '08 has a new essay on Minding the Campus that summarizes the issues and results of the election, "How Dartmouth Thwarted Their Alumni."

Academia and Religion:

When it comes to the attitude of academics toward religion, I suspect that the truth is probably closer to the view articulated by Rick Hills or Ilya than to Eugene's more charitable view. In particular, what the data (and personal experience) indicate is that the views of academics toward religion is not uniform. In particular, academics have a highly negative view of Evangelical Christians and very little hostility to Jews.

According to a study by the Institute of Jewish and Community Research, 53% of professors have an unfavorable view of Evangelical Christians but only 3% have an unfavorable view of Jews. A summary of the study is here. 33% have unfavorable views of Mormons. Muslims, Atheists, and Catholics all score in double-digits. Who would've thought that 13% of academics have unfavorable views of Catholics?

Now let me say that again--53% of academics have an "unfavorable" view of Evangelical Christians. It is almost impossible to imagine any identifiable group of Americans today who would hold such a reflexively negative view of other groups of Americans. I can't imagine that any degree of racial bigotry by any group toward any other group would even approximate this degree of bigotry and prejudice. I also have to say that based on my personal observations this finding is completely plausible (note that it was a Jewish affairs organizaiton that conducted the study so one wouldn't expect that it had an axe to grind or was biased toward trying to find evidence of anti-Evangelical sentiment).

So what to make of this? Given that there are a divergence of views toward different subsets of religious groups, this does not seem to me to be consistent with Eugene's thesis that what is going on here is an incomprehension of a religious worldview. It is clear that bigotry toward Evangelicals and Mormons is much deeper than mainline protestants, Buddhists, and Jews. As Ilya suggests, it is likely that many academics simply know no Evangelicals (at least that they are aware of), so this seems to be pure bigotry based on some general prejudice. But I doubt many academics know many Buddhists either, yet very few hold negative perceptions of Buddhists. And I doubt that academics are any more informed about what "weird" views Buddhists hold than Mormons or Evangelicals. All of these views are based primarily on simple prejudice (in the descriptive sense) not on knowledge or experience.

So what about Ilya's thesis that religious bigotry is a proxy for political bigotry? There may be some truth to this. I suspect that Evangelicals and Mormons are generally perceived as political conservative and Jews are perceived as politically liberal. Other views, such as Catholics and Muslims, I suppose fall somewhere in the middle when it comes to such stereotypes. But I don't think this can explain it all either. For instance, I think that most academics are quite tolerant of conservative Jews. I also suspect that academics probably think that it is ok for blacks to be Evangelical or Southern Baptist, even if they dislike white Evangelicals. Ditto for other unusual religious groups, such as the Amish. My opinion on this score is based on hunch, not data, however, so I could be wrong--it may be that academics hate conservative Jews or black Southern Baptists as much as Evangelical Christians, but my instinct tells me that is not the case.

If that is true, then I think the answer must lie somewhere closer to Hills's thesis that what is really going on here is something closer to simple bigotry, hatred, or fear. The source of the bigotry, I suspect, is cultural in nature. Conservative Jews and black Southern Baptists are ok because their religion is seen as an extension of their cultural and ethnic background and academics look at those cultures through a multicultural mindset.

Moreover, I suspect that many academics would say that their negative stereotypes are justified because they have formed a perception that Christians are "hateful" people intent on imposing a theocracy on the United States. So they would say, "My hostility is based on their hostility, so it is fully justified."

Hills's experience reflects a really quite common mindset in my view. And the disbelief that is expressed is not that suggested by Eugene--"Really, how could he believe that?" What the disbelief suggests is, "Really, yet he seems like such a nice guy. How could he hold such [hateful] views?"

Finally, let me stress one final point--what is so surprising to me about all of this is that the views of academics toward Evangelicals and Mormons are likely based purely on stereotypes and ignorance. I doubt that many academics know any Evangelicals (that they are aware of) and few probably know many Mormons, nor do they likely have much but superficial knowledge about the views of many of these people.

Update:

A commenter notes that in the population at large there are subgroups who are also viewed unfavorably. Opinion polls show that indeed to be the case to some degree. According to this poll, atheists are viewed negatively by 45% of the population and scientologists by 52%. Evangelical and Fundamentalist Christians are viewed negatively by 23-25% of the population at large.

I have updated the post to reflect this.

Update:

Some readers have taken issue with my use of the term "bigotry." I used that term to try to capture the flavor of the response that Rick Hills heard in his friend's remark--"the academic’s irrational fear of, or intense discomfort around, theist and, in particular, Christian, beliefs." The flavor of the remark is that the friend had a negative prejudice against Christians such that he or she was surprised to learn that the person in question was a Christian. This is functionally no different from meeting someone who is inconsistent with one's negative stereotypical prejudices of a racial or ethnic group. I think the correct word to apply to that prejudice is "bigotry," but if there is a different word, then please suggest the correct word. I think that the term must be freighted with greater normative implications than I intended, as I intended it to be used descriptively, not normatively.

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Northwestern to Offer Two-year, Five-semester, Law Degree:

(Sketchy) details here. Northwestern will also require all students to take two new course, one in "analytic skills" (finance, statistics, accounting, etc.), and one in "legal services behavior."

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FISA Deal Reached: It took forever, but it finally happened: A deal on foreign intelligence monitoring. You generally can't rely on the press to report accurately on this sort of super-detailed legislation, but the Washington Post is reporting that the key moves of the new legislation are these:
Under the surveillance agreement, which is expected to be approved today by the House and next week by the Senate, telecoms could have privacy lawsuits thrown out if they show a federal judge that they received written assurance from the Bush administration that the spying was legal. . . . The legislation also would require court approval of procedures for intercepting telephone calls and e-mails that pass through U.S.-based servers -- another step that the White House and GOP lawmakers previously resisted.
  That sounds pretty sensible, although I'll need to read the language first to get a sense of what really happened. Stay tuned.
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Thursday, June 19, 2008

The Milton Friedman Institute and Ideological Intolerance in Academia:

The University of Chicago has decided to establish an economics research institute named after the late Milton Friedman. Normally, a university's decision to name an institute after it's most famous and successful professor would be a completely uncontroversial nonstory. However, over 100 University of Chicago professors have signed a letter protesting the decision. Essentially, they object to naming a research institute after Friedman because he was a libertarian rather than a liberal or leftist - even though Friedman's academic distinction is such that he clearly deserves the honor. It is inconceivable that you could find 100 academics at Chicago or any other major university who would sign a letter opposing the creation of an institute named after a liberal academic whose intellectual achievement's were as great as Friedman's.

The letter states that naming the center after Friedman would "reinforce among the public a perception that the university's faculty lacks intellectual and ideological diversity." This is a weak argument to say the least. No one assumes that universities endorse all the views of the people they name research centers or buildings after. For example, I teach at the George Mason University School of Law. That doesn't lead anyone to assume that I or the university as a whole endorse Mason's opposition to the Constitution or his other political views. Everyone understands that the university is named after Mason to honor his achievements, not to express agreement with his opinions. Universities - including Chicago - routinely name all sorts of facilities in honor of liberals or leftists without anyone even suggesting that this might lead people to think that the school lacks "ideological diversity." Even more to the point, the University of Chicago, like most universities, has entire departments overwhelmingly dominated by liberal or leftist ideological views. I doubt that many of the signers of the anti-Friedman letter are concerned about this, even though it leads to a real lack of ideological diversity as opposed to the mere "perception" thereof.

Some letter signers interviewed in the Chicago Tribune article linked above claim that the center will be a "right-wing" organization that, in the words of one, will cause "work at the university and the university's reputation [to] take a serious rightward turn to the detriment of all." There is no proof of this other than a sentence from the Institute's proposal which says that it will focus on the issues raised in "some of Milton Friedman's most interesting academic work." Obviously, focusing on the issues addressed in Friedman's work is not the same thing as automatically endorsing his conclusions. But even if the Institute does attract a disproportionate percentage of libertarian or (less likely) conservative scholars, so what? Plenty of academic departments and research centers are overwhelmingly left-wing. As long as the work produced by the Institute is of a high quality and is judged by objective standards, it should not matter if a disproportionate percentage of it is right of center. Since the Institute would be run by Chicago's world-class economics and business school faculty (including several Nobel Prize winner), it's highly likely that it will produce outstanding scholarship.

In my view, academia as a whole is in need of greater ideological diversity. But that doesn't mean that every single department or research center has to be internally diverse, merely that the academic world should be more diverse overall. Diversity across institutions is sometimes furthered by homogeneity within particular schools and departments. If the Milton Friedman Institute does end up producing primarily libertarian or conservative work, that would actually increase the overall diversity of the University of Chicago and the academic world as a whole, since both are overwhelmingly liberal (it's true that the Chicago Economics Department tends to be libertarian, but most of the university's other departments have ideological orientations similar to those of their counterparts at other schools - i.e., liberal ones).

In fairness to the University of Chicago, it should be noted that the 100 signers of the letter represent only 8% of the school's total full-time faculty. It's possible that some of the non-signing faculty sympathize with the signers' objectives. But the majority of the school's faculty - maybe even a majority of its liberal faculty - perhaps do not agree with the letter. By no means all liberal and leftist academics are ideologically intolerant. The majority, I think, are not. But there is obviously an intolerant minority that wields considerable influence.

NOTE: The article claims, incorrectly, that the University of Chicago Law School is "conservative." That isn't true, even if one defines "conservative" broadly to include libertarians. The University of Chicago Law School has historically had more libertarian professors than most other top law schools (and a few real conservatives as well). But it has always had a majority of liberal professors, at least since the New Deal. The fact that merely having a substantial minority of non-liberal scholars was enough to give the school a "conservative" reputation is itself an indication of the ideological imbalance in academia.

UPDATE: The text of the 100 scholars' letter is available here. All of their stated concerns focus on the Institute's supposed "neoliberal" ideology and the "harm" that that might supposedly do the University's reputation for "diversity." Read the letter and judge for yourself.

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You Know You're Blogging Too Much . . . . when you are writing a law review article and you instinctively end your paragraph and begin a new one by typing: < br > < br > & nbsp ; & nbsp ;
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Child of couple in civil union can receive Social Security insurance benefits:

So says the Bush administration's Office of Legal Counsel in an opinion letter interpreting the effect of the Defense of Marriage Act on the benefits eligibility of the child of a non-biological "second parent" in a civil union:

Although DOMA limits the definition of “marriage” and “spouse” for purposes of federal law, the Social Security Act does not condition eligibility for CIB [child's insurance benefits] on the existence of a marriage or on the federal rights of a spouse in the circumstances of this case; rather, eligibility turns upon the State’s recognition of a parent-child relationship, and specifically, the right to inherit as a child under state law. A child’s inheritance rights under state law may be independent of the existence of a marriage or spousal relationship, and that is indeed the case in Vermont. Accordingly, we conclude that nothing in DOMA would prevent the non-biological child of a partner in a Vermont civil union from receiving CIB under the Social Security Act.

There's a good summary of the opinion letter, the factual background, and the reactions of both supporters and opponents of same-sex marriage and civil unions at Law.com. Peter Sprigg of the Family Research Council, for example, is quoted as being "disappointed" that the administration did not take a "pro-family" position by denying benefits to the child.

I'm no expert on Social Security benefits, but the result seems right as a textual matter under both DOMA, which forbids federal recognition of same-sex marriages, and the Social Security Act, which defines an eligible child as one who has the state-law right to inherit from a parent regardless of the marital status of the parent. A contrary result would have put the federal government in the position of saying that not only is the parents' civil union created by state law unrecognized, but that the legal parent-child relationship created by state law is unrecognized. While it appears the legal parent-child relationship in the case arose from the parents' civil union, rather than from an adoption, the continued recognition of that parent-child relationship under Vermont law, including the inheritance right, is not dependent on the continued existence of the civil union.

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A Problem A Lot of Law Professors Would Like To Have: If your very first law review article is not only cited and but actually relied on by a majority opinion of the U.S. Supreme Court (see slip op. at 13), what do you do for an encore? After you're done talking to Nina Totenberg, that is. (Congrats again, Erica!)

Related Posts (on one page):

  1. A Problem A Lot of Law Professors Would Like To Have:
  2. Law Review Article Discussed At Oral Argument:
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The Limits of Fourth Amendment Injunctions: I have just posted a very short essay (12 pages), The Limits of Fourth Amendment Injunctions, for a symposium issue of the Journal on Telecommunications and High Technology Law. The essay is a response to the Sixth Circuit's still ongoing litigation in Warshak v. United States, the e-mail privacy case I have blogged about; the essay attempts to take the basic insights of my wannabe amicus brief and broadens it into a short scholarly article. Here's the abstract:
When is injunctive relief appropriate in Fourth Amendment cases? Should courts feel free to craft wide-ranging injunctive relief to avoid Fourth Amendment defects? Or is there something wrong, either as a matter of doctrine or policy, with crafting broad injunctions in Fourth Amendment cases?

This brief essay will suggest answers to these questions. The first part argues that as a matter of history and practice, injunctive relief has been used narrowly as an on-off switch for carefully-defined practices. The most significant doctrinal hook for this limitation is Article III standing: Injunctive relief requires a real and immediate threat of future injury to establish a case or controversy. The precise meaning of that requirement remains murky, but it arguably means that a plaintiff must show a real and immediate threat of a highly specific set of facts occurring.

The second part argues that as a matter of normative policy, any ambiguity in the current state of the law should be resolved against imposing broad Fourth Amendment injunctions. Crafting broad injunctive relief forces courts to assume duties that they are not competent to handle. Fourth Amendment doctrine is tremendously fact-specific: every fact pattern is different, and even the exceptions to the exceptions have their own exceptions. Courts are poorly suited to design broad injunctive relief in this setting. Courts should therefore decline to craft Fourth Amendment injunctions covering classes of facts instead of individual facts.
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A Nice Little Rant from Georgia Supreme Court Justice Joseph Lumpkin (1853):

He was writing in a case that considered whether the absence of a seal made a certain document void, but in the process touched on broader jurisprudential principles. I found the passage interesting and colorful, though somewhat one-sided, and thought I'd pass it along (some paragraph breaks added):

For myself, I am free to confess, that I despise all forms having no sense or substance in them. And I can scarcely suppress a smile, I will not say “grimace irresistible,” when I see so much importance attached to such trifles. I would cast away at once and forever, all law not founded in some reason — natural, moral, or political. I scorn to be a “cerf adscript” to things obsolete, or thoroughly deserving to be so.

And for the “gladsome lights of jurisprudence” I would sooner far, go to the reports of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three thousand miles in width, and then travel up the stream of time for three or four centuries, to the ponderous tome of Sidenfin and Keble, Finch and Popham, to search for legal wisdom. The world is changed. Our own situation greatly changed. And that Court and that country is behind the age that stands still while all around is in motion.

I would as soon go back to the age of monkery — to the good old times when the sanguinary Mary lighted up the fires of Smithfield, to learn true religion; or to Henry VIII. the British Blue-Beard, or to his successors, Elizabeth, the two James's and two Charles's, the good old era of butchery and blood, whose emblems were the pillory, the gibbet and the axe, to study constitutional liberty, as to search the records of black-letter for rules to regulate the formularies to be observed by Courts at this day.

I admit that many old things may be good things — as old wine, old wives, ay, and an old world too. But the world is older, and consequently wiser now than it ever was before. Our English ancestors lived comparatively in the adolescence, if not the infancy of the world. It is true that Coke, and Hale, and Holt, caught a glimpse of the latter-day glory, but died without the sight.

The best and wisest men of their generation were unable to rise above the ignorance and superstition which pressed like a night-mare upon the intellect of nations. And yet we, who are “making lightning run messages, chemistry polish boots and steam deliver parcels and packages,” are forever going back to the good old days of witchcraft and astrology, to discover precedents for regulating the proceedings of Courts, for upholding seals and all the tremendous doctrines consequent upon the distinction between sealed and unsealed papers, when seals de facto no longer exist! Let the judicial and legislative axe be laid to the root of the tree; cut it down; why cumbereth it, any longer, courts and contracts?

UPDATE: Whoops, got the date wrong in the original header; I for some reason recorded the date as 1845, but it was actually 1853, as the corrected header indicates. Thanks to Bill Raftery for setting me straight.

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Academics and Hostility to Religion:

Rick Hills claims that many academics have an "irrational fear of, or intense discomfort around, theist and, in particular, Christian, beliefs," which he labels "theophobia." I don't doubt that there are some academics who hold such views. But I think that most seeming academic hostility to religion is actually hostility to the association between religiosity and conservatism in current American politics. Academics are overwhelmingly left-liberal and some of them are not particularly tolerant of right of center political views, whether religiously motivated or not.

Certainly, most liberal academics have no objection to religiosity when it is associated with political causes they support. Many liberal and leftist academics are sympathetic to "liberation theology" and other efforts to associate religion with left of center causes. Martin Luther King is a hero to most liberal academics even though he was a Christian minister. Barack Obama's open religiosity doesn't seem to have hurt his image among academics either. The late Robert Drinan was a prominent left-wing law professor and also an ordained Catholic priest. His religion doesn't seem to have attracted any significant academic hostility.

On the other side of the ledger, I know of a considerable number of conservative and libertarian academics - myself included - who are atheists or agnostics. As far as I can tell, the hostility that we sometimes encounter in the academic world because of our political views is not significantly reduced by our lack of religiosity.

While there are probably some academics who are hostile to religion as such independent of its perceived association with political conservatism, this is a relatively minor phenomenon. Certainly, such generalized "theophobia" among academics is far less common than is generalized hostility to atheism in the general public. For example, as I discussed in this article, some 51% of the general public believe that "[i]t is necessary to believe in God in order to be moral and have good values" and 50% would refuse to vote for a "well-qualifed" candidate for president nominated by their party if he were an atheist. By contrast, I doubt that more than a tiny fraction of academics believe that you have to be an atheist or agnostic to "be moral" or would refuse to vote for a presidential candidate of their party merely because he was a religious believer. Indeed, the vast majority of academics are going to support Obama this year, apparently unconcerned by his religious beliefs. Admittedly, I don't have systematic survey data on academics' attitudes on these points and so would welcome correction from anyone who does have such data. But these are my impressions on the basis of many years spent in the academic world, and acquaintance with a wide range of left of center academics.

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"Theophobia":

Rick Hills (PrawfsBlawg) writes:

Just a few days ago, I was discussing a mutual friend with a former colleague. The latter was astonished by our mutual friend’s Christianity: “What’s up with that?!” he exclaimed, expressing bewilderment and even nervousness at the thought that a well-regarded -- indeed, by academic standards, famous -- professor could believe in the existence and beneficence of an omniscient and omnipotent God. If was as if our Christian friend had declared that the world was flat or was dabbling in alchemy. My former colleague even worried that, if a serious academic could believe in God, he was capable of believing in, or attempting, anything — attempting to walk across the East River unaided by a water taxi, gunning down students in hallways, speaking in tongues at a faculty meeting, you name it.

Hills goes on to label this attitude "theophobia" and explain why he disagrees with it, among other things because "there is no obviously persuasive reason to believe that religious belief as such has any more harmful consequences than lack thereof."

Here's my quick thought on the subject: I tend to agree that fear of religious belief as such (as opposed to of specific religious beliefs) is probably unjustified, for the factual reasons Hills mentions.

But I take it that many irreligious people who are bewildered by others' religious beliefs aren't afraid of the beliefs so much as they find them factually unfounded — much like they would find beliefs in astrology, ghosts, werewolves, or for that matter the Greco-Roman pantheon to be factually unfounded. For that matter, I take it that even many Christian academics would disapprove, on empiricist rather than theological grounds, of those who say they believe in Zeus, Xenu, the Zodiac, or vampires. Why should we be surprised that irreligious academics would take the same view, but as to factual claims of the existence of God as well as to the other factual claims? (Note that there were some very interesting responses to these arguments in the comments to this post of ours from late 2005.)

This is especially so as to beliefs "in the existence and beneficence of an omniscient and omnipotent God." So perhaps what Prof. Hills is seeing is more disapproval of those who are seen as unduly willing to believe in what the disapproving person sees as fairy tales, rather than disapproval of those who are seen as morally or practically threatening.

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"Public Hearing in ... [Sheriff's] Deputy Slaying Case Closed to Public" --

apparently without even any purported legal justification. From the Sacramento Bee:

A public hearing -– in which murder suspect Marco Antonio Topete was to be formally charged Wednesday in the slaying of a Yolo County sheriff's deputy –- was closed to just about everyone except the slain deputy's survivors and his law-enforcement colleagues [about 25 to 40 of them -EV].

Barred from the hearing were the defendant's wife, mother and sister, and members of the general public, including the media.... [D]eputies had locked the door and kept it locked during the hearing....

The Sheriff has now apparently admitted that the deputies' action "was 'a huge mistake.'" The judge in charge of the courthouse is quoted as saying that "The doors are supposed to be unlocked when court is in session. This kind of hearing should have been open to the public. There are no excuses. It shouldn't have happened."

Thanks to my student Jenny Macht for the pointer.

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Another Great Satire from The Onion:

Court Reverses Father's Decision to Ground Daughter by Keeping Her from a School Overnight Trip. I just love it how the Onion can take real practices and extrapolate them three steps forward to the utterly absurd.

The article is on what must be some mirror site for The Onion — something in Canada called TheGlobeAndMail.com. And it's odd, but the other stories on the site don't seem that funny. Well, here's an excerpt:

First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn't go on a school trip.

The girl took the matter to the court ... [and] Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn't discipline his daughter by barring her from the school trip....

Lucie Fortin, the lawyer representing the 12-year-old, said the judge found that depriving the girl of the school trip was an excessive punishment.

She said the girl has already been forbidden to use the Internet and her father also punished her by cancelling her participation in an extracurricular event.

In an odd twist for The Onion, the satire goes on to give some pretty humdrum and not very funny details. (Is The Onion losing its touch?) The story notes that the trip was a three-day outing marking the girl's graduation from sixth grade, and apparently not a part of the school's educational curriculum. The story also notes that the parents are divorced, and "[the girl's] father has legal custody but for the past month she has lived with her mother," but the story describes the matter as a dispute between the girl and the father, not a dispute between the two parents' judgment or a question about whether the mother should get temporary or permanent legal decisionmaking authority.

In any case, it's great humor, despite the excess of realistic detail. Thanks to Dennis Nolan for the pointer. I should note that there's a small chance that the story isn't a satire after all, but, really, given the absurdity, how likely is that?

UPDATE: Commenter David Malmstrom points to another news story that suggests the matter might indeed have been partly a dispute between parents: "The girl's mother allowed her to go on the trip, but because the school wouldn't allow the girl to go unless both parents consented, the girl, with the mother's support took legal action against her father."

But it seems to me the absurdity remains: It's absurd that a judge would step in to decide whether grounding a child from a school trip is "excessive punishment." If the mother petitioned for a change in custody, that would indeed justify (and require) a judge's intervention, because it would involve a major life decision, and would determine which parent should have disciplinary authority -- something the courts have to do in case of a divorce -- rather than whether a particular grounding decision was justified. But when the school policy is that both parents must consent, which is to say that each parent has veto power, and one parent does exercise his veto, it makes no sense for a judge to decide the matter for herself instead of leaving it to the vetoing parent's judgment.

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[Anuj Desai, guest-blogging, June 19, 2008 at 10:20am] Trackbacks
The Post Office and the Origins of the Constitutional Principle of Communications Privacy:

Today, I’ll describe my last example of the phenomenon of a constitutional principle deriving from an embedded characteristic of the Post Office: the Fourth Amendment right of communications privacy. As readers of this blog no doubt know, communications privacy issues have been big news for a long time. Orin Kerr, for example, has written extensively on the question of e-mail privacy, and of course, James Risen and Eric Lichtblau won a Pulitzer Prize — and perhaps Woodward and Bernstein treatment for the rest of their careers — for uncovering the NSA’s telecommunications surveillance program. Whole organizations are now devoted to the issue of online privacy, and whole law classes now focus on it. And, of course, just yesterday, the Ninth Circuit addressed the question of Fourth Amendment protection for text messages.

Modern Fourth Amendment privacy law is usually seen as deriving from Justice Brandeis’s seminal dissent in the 1928 case Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting), a case in which the Supreme Court held that wiretapping a criminal defendant’s telephone didn’t violate the Fourth Amendment. I argue, though, that we need to go further back than Olmstead, back to the eighteenth century. But — and this should come as no surprise if you’ve read my previous posts — rather than back to the drafting and ratification of the Constitution, we need to go back to early postal policy.

Thus, the crux of my claim is that the constitutional principle of communications privacy didn’t actually come from the Fourth Amendment or the Constitution at all; it came from eighteenth-century postal policy. Again, as with my two previous posts, I will discuss a little eighteenth-century history and then some constitutional law.

Early Postal History — Postal Privacy

So let me start with postal privacy, the idea that the government cannot open sealed mail without a warrant (even though it is of course the government that owns and operates the postal network). Where did postal privacy first come from? Though there is no simple answer and the ultimate embedding of postal privacy into the institution of the Post Office took time, postal privacy became a central feature of the legal regime that defined the American Post Office from its very beginning.

In fact, one of the most important moments in the development of postal privacy occurred with the establishment of the American Post Office as separate and distinct from the colonial post office during the Revolutionary War. I include lots of details in the second of the two articles, but the key point is this: the reason the Continental Congress first adopted its own postal network in 1775 was in large part that the rebels wanted a communications network that was free from British surveillance. Remember, these people were very likely viewed as traitors — even before the outbreak of the war — and they needed to communicate across long distances to plan their opposition to the British.

At the end of the war, this fear of government surveillance was then written into the law regulating the Post Office. The Continental Congress passed its first comprehensive postal Ordinance in 1782, and it included a prohibition on the opening of mail without a warrant. Eventually, the prohibition was written into the same 1792 Post Office Act I’ve mentioned during my past two blog posts. Over time, the statutory prohibition on opening mail became embedded into the fabric of the postal network.

Most important for my purposes, this entire development was independent of the drafting and ratification of the Fourth Amendment. [… although, in an interesting coincidence, Jefferson — as Secretary of State — officially notified the state governors of both the ratification of the Bill of Rights and the 1792 Post Office Act in the very same letter. See Bernard Schwartz, The Bill of Rights: A Documentary History (1971), vol. 2, at 1203.]

Constitutional Law — Communications Privacy and the Fourth Amendment

As I noted above, Justice Brandeis’s dissent in Olmstead — which would have held that warrantless wiretapping of a telephone violated the Fourth Amendment — is largely viewed as the intellectual underpinning for Berger v. New York, 389 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the two cases that form the backbone of the modern constitutional principle of communications privacy. [I want to emphasize here that I’m referring here only to the general principles embodied in Brandeis’s Olmstead dissent, since Orin Kerr has specifically argued that Olmstead has not been overruled.] [CORRECTION: In the comments, Orin corrects me here. I should have said that he has argued that the Court has never adopted Brandeis's Olmstead dissent. My mistake.] But Justice Brandeis’s dissent had its precursors too. Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson, 96 U.S. 727 (1878), the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy.

In Ex parte Jackson, the Court ruled, in dicta, that the Fourth Amendment prohibits the government from opening a sealed letter without a warrant. The details of Ex parte Jackson aren’t crucial. What is important, though, is that the Court simply announced this principle, and did so without citation to any cases or constitutional history. The remarkable thing about this is that the rest of the Court’s opinion — the case’s holding is that the Constitution permits Congress to prohibit the mailing of lottery advertisements — is littered with references to constitutional history.

Still, if the Court was inclined to rule on the Fourth Amendment question, we shouldn’t really be surprised that there is no reference to the drafting and ratification of the Fourth Amendment. As best I have been able to determine, there is no evidence to suggest that the Fourth Amendment was originally meant to encompass postal privacy. Modern scholars of the history of the Fourth Amendment debate a lot of different things, but no historian of the original meaning of the Fourth Amendment that I’ve found makes any mention of postal privacy, and the only scholar I’ve found who directly addresses the notion that Ex parte Jackson might be based on the original understanding, Telford Taylor, concludes that it isn’t.

So, in short, the statutory prohibition on opening letters became an institutional feature of the Post Office, which in turn led to Ex parte Jackson. The constitutional principle of communications privacy thus originally came not from the Constitution, but rather from postal policy.

Tomorrow, I’ll sketch out some concluding thoughts about the examples I’ve described the past three days.

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5-4 Split Watch:

The Supreme Court handed down five more opinions today. SCOTUSBlog has the details. Only one of the five, Kentucky Retirement Systems v. EEOC, was 5-4, and it produced an interesting line-up. Justice Breyer wrote the majority opinion, joined by the Chief Justice and Justices Stevens, Souter and Thomas. Justice Kennedy filed a dissenting opinion, joined by Justices Scalia, Ginsburg, and Alito. Also worth noting is that the Court's preemption holding in Chamber of Commerce v. Brown was written by Justice Stevens for a seven justice majority. Only Justices Breyer and Ginsburg dissented.

With today's decisions, the percentage of cases decided by a 5-4 margin this term is below 15 percent. With only ten more cases to go, it seems this term's level of unanimity, and relative lack of ideological division, may resemble OT2005 more than OT2006. Of course, some big cases remain in the queue, so we'll have to wait until next week to know for sure.

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Happy 40th Birthday to the Wiretap Act, which was born on June 19th, 1968, together with the rest of the Omnibus Crime Control and Safe Streets Act.
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Sue OPEC?

Thomas Evans suggests a new target for activist state Attorneys General: the member states of OPEC.

The attorneys general of the various states should sue OPEC as an alien or, pleading alternatively, as a foreign state. (A joint action by the attorneys general is the method the states used to collectively sue tobacco companies, Microsoft and health maintenance organizations.)

The states should contend that Article III of the Constitution outweighs the act of state doctrine. Respect for the sovereignty of a foreign government for acts “done within its own territory” does not, even if very liberally construed, protect decisions reached by a cartel based in Austria that directs 13 nations to sell their product at inflated prices to customers outside their boundaries. If the states won the case, the court could recover substantial damages based on assets and commercial activities of OPEC member nations in the United States.

Such a suit would face substantial obstacles, Evans notes, including separation of powers concerns, but he still thinks it is a good idea, even if only to focus public attention on OPEC's "illegal" activities.

I am sure some lawyers think litigation is an answer to nearly every problem, but I am not one of them. Assuming OPEC is a sufficiently strong cartel to be a major concern, I think there are better alternative courses than seeking to sue OPEC's members in federal court. Even assuming a lawsuit could bear fruit (and I doubt it could), I am inclined to think destabilization of OPEC makes more sense than confrontation. Cartels are notoriously difficult to maintain, all the more so when they face external competition. So, why wouldn't an increase in oil production and development in non-OPEC states undermine OPEC's influence? Increasing the dynamic and competitive nature of energy markets would seem to make more sense than trying to tie up sovereign oil producing states in litigation.

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Will Energy Woes Help Wind Power?

President Bush and Senator McCain have both called for renewed offshore oil and gas drilling. With gasoline prices inching above $4 per gallon, political opposition to such development may be on the ebb. What about opposition to offshore wind development? The WSJ investigates. While there is no formal moratorium against offshore wind power, environmentalist and NIMBY opposition has stalled every sea-based wind project proposed in the U.S. thus far. Europe, on the other hand, has over 20 offshore wind farms in operation.

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No Monopoly on Economic Nonsense:

In today's WSJ, Karl Rove observes both John McCain and Barack Obama are proving "that in close elections during tough economic times, candidates for president can be economically illiterate and irresponsibly populist." He criticizes Obama for embracing a Carter-esque windfall profits tax, and McCain for seeking to direct how oil companies invest their own profits. He concludes:

Messrs. Obama and McCain both reveal a disturbing animus toward free markets and success. It is uncalled for and self-defeating for presidential candidates to demonize American companies. It is understandable that Mr. Obama, the most liberal member of the Senate, would endorse reckless policies that are the DNA of the party he leads. But Mr. McCain, a self-described Reagan Republican, should know better.

Rove is not known for his mastery of energy policy or economic principles, but in this case he's right on target.

Related Posts (on one page):

  1. A Prize for McCain:
  2. No Monopoly on Economic Nonsense:
  3. McCain's Energy Speech:
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Underappreciated Advantages of US Pro Sports Over International Soccer:

The conjunction of the Celtics-Lakers NBA Finals and the European Soccer Championship led me to reflect on two important advantage of US pro sports over international soccer: soccer often promotes nationalist and ethnic violence and provides propaganda fodder for repressive or corrupt governments, while US pro sports (with extremely rare exceptions) do not.

European and Latin American soccer rivalries are commonly linked to nationalistic and ethnic antagonisms (e.g. - England vs. Germany, England vs. Ireland, Germany vs. Poland, etc.). Even the fan bases of teams in internal national soccer leagues often break down along ethnic lines. This conjunction of sports rivalries and nationalistic/ethnic rivalries often leads to violence. The most notorious example is the 1969 "Soccer War" between El Salvador and Honduras - a conflict which might have been funny except for the fact that 2000 people were killed and tens of thousands displaced from their homes. And there are many lesser cases of riots and other violence resulting from soccer games.

Many European and especially Latin American soccer teams are also closely associated with governments. This often allows repressive and corrupt regimes to obtain propaganda benefits from the teams' victories. For example, the repressive Brazilian and Argentinian military governments of the 1970s increased their public support as a result of their national teams' World Cup victories in 1970 and 1978. In Europe, Mussolini, Franco, and the communist government of the Soviet Union derived similar benefits from their teams' successes. On a lesser scale, incompetent or corrupt local governments in Europe sometimes benefit from the victories of local clubs.

In the United States, by contrast, pro sports rivalries are based on geographic divisions that have little or no connection to deeper social antagonisms over race, religion, or political ideology. As a result, even the most heated US sports rivalries, such as the Red Sox-Yankees rivalry, rarely result in violence between fans of opposing teams - and never in the form of the large-scale soccer riots that we sometimes see in Europe, Asia, and Latin America. The recent incident in which a Yankees fan killed a Red Sox fan was shocking in part because it was so exceptional. It would not have been nearly so unusual in the annals of European, Asian, or Latin American soccer. The key difference is that there is no broader Boston-New York conflict that goes beyond the sports rivalry, while the same cannot be said for many international soccer rivalries.

And because US sports teams have relatively few associations with government (with the important exception of indefensible government subsidies for sports stadiums), politicians don't benefit from their victories. The Red Sox and Patriots' championships in 2004 didn't do anything to help Massachusetts Senator John Kerry's presidential bid. This year's Celtics victory probably won't help Massachusetts Governor Deval Patrick overcome his political troubles. And President Bush isn't getting any political benefit from the Texas Rangers' recent offensive prowess.

Obviously, I'm not saying that there is anything intrinsically wrong with soccer as a sport. I enjoy baseball and basketball much more than soccer, but that is purely a matter of personal preference. Nor am I saying that Europeans and Latin Americans shouldn't root for their soccer teams. The problem is not soccer as such, but the social and political organization of the sport in much of the world.

US pro sports leagues are sometimes criticized for failing to engage the deeper loyalties of fans as much as soccer does in other countries. On balance, it's actually a good thing that they don't.

Related Posts (on one page):

  1. Underappreciated Advantages of US Pro Sports Over International Soccer:
  2. Championship No. 17:
  3. An Amazing Celtics Comeback:
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Scott Glover Defends His Description of Judge Kozinski's Files: In this very interesting radio program on the LA Times' story about Judge Kozinski's fileserver, there's an interesting moment in which the LA Times reporter who broke the story, Scott Glover, defends his description of the video of a man running away from a donkey as a "video of a half-dressed man cavorting with a sexually aroused farm animal." I apologize for blogging about the topic, as I gather most VC readers have had enough of this story, but Glover's defense strikes me as so completely absurd that I wanted to comment.

  In the radio segment, Glover argues that his description of the video does not in any way suggest that the video contained or suggested a sexual interest in animals. (Which it didn't, to be clear; I just watched it for the first time, and it's clear the man is trying his best to avoid such contact). Here's what Glover says, at around the 10:20 mark:
  Let's talk about the image of the farm animal, which I believe I described as a "video of a half-dressed man cavorting with a sexually aroused farm animal."
  This has caused quite a buzz, and I'm not sure why. If you look up "cavorting" in the dictionary, it talked about "to prance" or "to romp about." There's not a sexual connotation there. . .
  If I thought [the video] was an attempt at bestiality, I certainly would have described it as such if there was evidence to support that. I was just describing what is there, there was no attempt to make it seem like something else.
  That strikes me as a remarkably lame explanation. When used to describe a group acting together, the word "cavort" means "to have lively or boisterous fun; [to] romp." True, there are many uses of the term that have no sexual connotation. But a man running away in fear to avoid being sexually assaulted by a donkey is not cavorting: he is not enjoying himself. And it's hard to imagine nonsexual ways that a half dressed man could enjoy himself with a sexually aroused farm animal. It seems to me that the sexual connotation is obvious, and that Glover's defense is absurd.

  Thanks to Patterico for the link; he is also on the radio program together with blogfather Eugene.
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Championship No. 17:

For Boston sports fans, nothing will ever equal the joy that we experienced when the Red Sox Reversed the Curse in 2004. But this Celtics win is probably the second most satisfying Boston sports victory in my lifetime. It's great to see the franchise return to glory after all the anguish that it and the fans went through since the death of Len Bias. The Celtics set several records in the process, including largest margin of victory in a clinching game (second-largest in any Finals game), biggest comeback in a finals game (Game 4), most steals in a finals game (18 in Game 6); and most 3 pointers in an NBA finals series (Ray Allen, with 22 - shattering the previous record of 17). And of course it was great to do it against the Celtics historic rival - the Lakers. We don't hate the Lakers like we do the Yankees, and in fact I have great respect for the Lakers players, tradition, and organization. But - in part for that very reason - it still means more to win against them than any other NBA team.

It isn't a great time in politics, law, and public policy - my main areas of interest. But I take some small comfort in the recent successes of my favorite Boston sports teams, the Red Sox and Celtics. I'm only sad that Red Auerbach and Dennis Johnson didn't live to see this victory.

UPDATE: In the initial post, I accidentally stated that the Celtics' record comeback was in Game 2 rather than Game 4. The mistake has now been corrected.

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Wednesday, June 18, 2008

Interesting Background to the AP's Copyright Enforcement Story: Robert Cox has the scoop. The basic conclusion: "[T]he AP is not on some wild rampage through the blogosphere, lawyering up to to go after every blogger who quotes an AP story in any way. Yet that is how this story has been portrayed . . . " Thanks to Instapundit for the link.
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"What Did It Mean To 'Bear Arms' in 1791?"

Linguist Bill Poser, blogging at Language Log (one of my favorite blogs), comments on the Linguists' Brief filed in support of the collective rights view in D.C. v. Heller.

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Orin Is Too Humble To Mention This,

but the Ninth Circuit decision he blogged about cites his article, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004), prominently and repeatedly.

Related Posts (on one page):

  1. Orin Is Too Humble To Mention This,
  2. Ninth Circuit Finds Fourth Amendment Protection in Text Messages:
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Ninth Circuit Finds Fourth Amendment Protection in Text Messages: The Ninth Circuit handed down a very important decision today in Quon v. Arch Wireless Operating Company holding that users of text messaging services ordinarily have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Judge Wardlaw wrote the opinion, joined by Judge Pregerson and District Judge Ronald Leighton. It's a bit of a surprise that the panel decided the issue so squarely, given that it was only lightly covered at oral argument, but it's a noteworthy holding that I think is correct and very important.

  From the opinion:
  The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. Here, we must first answer the threshold question: Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network? We hold that they do.
  In Katz v. United States, 389 U.S. 347 (1967), the government placed an electronic listening device on a public telephone booth, which allowed the government to listen to the telephone user’s conversation. Id. at 348. The Supreme Court held that listening to the conversation through the electronic device violated the user’s reasonable expectation of privacy. Id. at 353. In so holding, the Court reasoned, “One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.” Id. at 352. Therefore, “[t]he Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at 353. . . .
  . . .
  In United States v. Forrester, we held that “e-mail . . . users have no expectation of privacy in the to/from addresses of their messages . . . because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus, we have extended the pen register and outside-of-envelope rationales to the “to/from” line of e-mails. But we have not ruled on whether persons have a reasonable expectation of privacy in the content of e-mails. Like the Supreme Court in Smith, in Forrester we explicitly noted that “e-mail to/from addresses . . . constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers.” Id. Thus, we concluded that “[t]he privacy interests in these two forms of communication [letters and e-mails] are identical,” and that, while “[t]he contents may deserve Fourth Amendment protection . . . the address and size of the package do not.” Id. at 511.
  We see no meaningful difference between the e-mails at issue in Forrester and the text messages at issue here.Both are sent from user to user via a service provider that stores the messages on its servers. Similarly, as in Forrester, we also see no meaningful distinction between text messages and letters. As with letters and e-mails, it is not reasonable to expect privacy in the information used to “address” a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.
  The reasoning here is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area. I ended up making this the critical distinction in my treatise coverage of these issues, see LaFave, Israel, King & Kerr, Criminal Procedure 4.4(c)-(d) (2007), and the Quon opinion further emphasizes the line.

  I worry that parts of the rest of the Quon opinion may trigger some confusion, because the court doesn't make entirely clear whether the Department's policies are relevant to the REP inquiry only under the special Fourth Amendment rules for public employment or under a standard that the court thinks applies more generally. To make a long story short, such policies are critical in the public employment context under O'Connor v. Ortega, but are not very important in the private employment context (except to the extent it provides third party consent rights for the employer).

In light of that, I think the Court should have clarified around the bottom of page 7021 that the employer's policies were relevant because under the Supreme Court's Ortega decision, Quon is a public employment case and special rules apply that make them relevant. Without that clarification, I suspect some readers will conclude that the Quon court thought policies are generally determinative of whether there is an REP in stored communications like text messages and e-mails. That's a position that I think is possible but actually quite novel; at the very least it's not a point to make casually.

  Two quick final points. First, the panel opinion has some interesting Stored Communications Act issues; the post is too long already, but the issues are worth noting and somewhat complicated for fellow SCA geeks out there. Second, by way of full disclosure, I vaguely recall that at some point early in the Quon litigation I was contacted by lawyers from both sides of the case and pointed both sides in the direction of some of the more obvious precedents raised by the facts.

Related Posts (on one page):

  1. Orin Is Too Humble To Mention This,
  2. Ninth Circuit Finds Fourth Amendment Protection in Text Messages:
44 Comments
Whelan to Marcus: Bring It On!

Washington Post columnist writes of her hope that the Supreme Court becomes an election issue this November.

Conservatives, seizing on the Supreme Court's ruling last week on Guantanamo detainees, want to turn the court into election fodder.

I hope they succeed.

At Bench Memos, Ed Whelan replies "Marcus grossly misestimates how a well-informed public would assess the relative prospects of McCain and Obama appointees to the Court."

Insofar as the judiciary has been a major issue in recent political campaigns, it appears to have worked to Republican advantage. The issue of judicial nominations motivates a key portion of the Republican base, and so-called "liberal judicial activism" appears to alienate a least a sliver of independents. Could Boumediene change this? I doubt it. I think Whelan is correct that the average American is to the "right" of the Court when it comes to the treatment of non-citizen enemy combatants. (Indeed, much of the public may be to the "right" of the Boumediene dissenters.) What about the other issues Marcus mentions? Here again I think she underestimates the public support for, say, allowing states to adopt more stringent abortion restrictions. I also think the issue of judicial nominations cuts in favor of Republicans when the subject turns to gay marriage, as even some who support gay marriage would like to leave the issue in the hands of state legislatures, and keep it out of federal courts. We'll see who is correct as the campaign unfolds.

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Damn the Neologisms:

From the Commercial Advertiser, Feb. 19, 1810, reprinting an article from the Freeman's Journal:

The Committee [of the House of Representatives] upon Mr. Fulton's Torpedo Project, reported that it would be proper for the house to adjourn from Friday to Monday, and appropriate the Hall of the House on Saturday to the purpose of affording Mr. Fulton a situation and opportunity to deliver a Lecture upon the practicability and utility of the Torpedo System, and to exhibit the said Torpedoes....

It would become the Legislature of the U. States to pay attention to the established importn of language, and not sanction deviations from it without important reasons. The term "torpedo" has been descriptive of the electrical eel, and it is not consistent with the dignity of the house to change its meaning, merely because a man of ingenuity or science has chosen to apply it to another subject.

Now look how the language -- and of course the dignity of the House -- has been degraded as a result.

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Who Values Money?

Some interesting findings in the association between ideology and things that make people happy, from Peter Schweitzer on his new book Makers and Takers:

Most surprising of all is reputable research showing those on the Left are more interested in money than Right-wingers.

Both the World Values Survey and the General Social Survey reveal Left-wingers are more likely to rate 'high income' as an important factor in choosing a job, more likely to say 'after good health, money is the most important thing', and agree with the statement 'there are no right or wrong ways to make money'.

You don't need to explain that to Doug Urbanski, the former business manager for Left-wing firebrand and documentary-maker Michael Moore. 'He [Moore] is more money-obsessed than anyone I have known - and that's saying a lot,' claims Urbanski.

How is it possible that those who seem to renounce the money culture are more interested in money?

One might suggest those on the Left are simply being more honest when they answer such questions. The problem is that there is no evidence to support this.

Instead, I believe the results have more to do with the powerful appeal of progressive thinking.

Many on the Left apparently believe that espousing liberal ideals is a 'get out of jail free' card that inoculates them from the evils of the money culture.

Cherie Blair, for example, never lets her self-proclaimed socialist attitudes stop her making money. She is even willing to be paid (as she was in Australia) to appear at charity events.

Such progressives, sure that they are not overly interested in money and possessions, believe they are then free to acquire them.

The article also notes some research by co-conspirator Jim Lindgren.

Via Powerline, which also has audio of a recent Schweitzer radio segment.

This story happened to catch my eye because one of the prevailing hypotheses about the demographic imbalance between "liberal" and "conservative" professors in the academy is that conservatives are "greedier," or place a higher value on money than do liberals, who are said to place a higher value on non-material goals. It is argued that this may explain why "conservatives" self-select out of academia. That hypothesis has never seemed exceedingly plausible to me and while this research doesn't answer the question directly, it sheds some light on the motivations of liberals and conservatives.

It also goes without saying that one can accept Schweizer's statistical findings without necessarily accepting his explanation as to what might explain it. Indeed, I don't find his hypothesis that this is a "get out of jail card" to be particularly plausible in many situations.

Without belaboring the point, my instinct is that attitudes with respect to the relationship between money and happiness are endogenous to broader worldviews about the existence of transcendent moral order and inherent notions of "the good" versus more relativist and materialist worldviews. Let me emphasize that I'm not suggesting one or the other view is right or wrong, I'm just observing that from a broader perspective I'm not as surprised by this finding as Schweizer, especially when read in the context of Schweizer's larger observations (which I think are actually not inconsistent with my intutions).

57 Comments
McCain's Energy Speech:

Yesterday John McCain gave a major speech on energy policy in Houston. His campaign will unveil additional details about his proposed energy policies in the coming weeks. In the meantime, I offer an initial critique of McCain's energy platform -- "Running on Half a Tank" -- on NRO.

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[Anuj Desai, guest-blogging, June 18, 2008 at 12:03pm] Trackbacks
The Postal Monopoly and the First Amendment “Right to Receive” Ideas:

Today, I hope to explain the connection between the Post Office as a monopoly on long-distance communication and the constitutional principle known as the “right to receive” ideas. Before doing so, though, I just want to mention one thing in response to some comments. After my first post, several commenters began a discussion about the basic legitimacy of the Post Office. The comments tended to revolve around whether the Post Office remains necessary and, in particular, whether the postal monopoly is — or, for that matter, ever was — necessary.

This is a legitimate and extremely important policy question. I can say unequivocally, though, that I am not taking a position on it. Nor do I take a normative position on the related question of whether, even if a monopoly were necessary as an economic matter (i.e. if the postal network were what economists refer to as a “natural monopoly”), the government ought to run it. My points throughout are purely descriptive. In any event, I mention this today because this question is tangentially related to today’s discussion, which is about the impact the monopoly has had on the First Amendment.

Okay then, to my main point. In contrast to yesterday’s example (and tomorrow’s), where the constitutional principle was borrowed directly from the legislative enactment, the Court never directly constitutionalized the government’s monopoly over long-distance communication. What the Court did do, however, was just as interesting. It shaped an important First Amendment principle — the “right to receive” ideas — around the fact that the Post Office was the principal means of long distance communication.

My basic claim, then, is that the Court’s perception of the Post Office as a monopoly — not as a legal matter, but rather as a practical matter — enabled the Court to read into the Constitution a “right to receive” ideas. Since you can probably see that this post goes beyond the bottom of your screen, I doubt you need a warning, but … well, let’s just put it this way, this won’t be fun if you’re reading on your handheld.

Early Postal History — Legal and Practical Monopoly

So, let me turn now to the historical origins of the monopoly. It is of course well known that the post office has always had a legal monopoly over the delivery of “letters.” That monopoly is currently found in what are known as the “private express” statutes (Chapter 6 of Title 39 of the United States Code, and 18 U.S.C. §§ 1693-1697), and the definition of “letter” is further refined in postal regulations. I discuss the origins of the postal monopoly in detail in the first article (pp. 696-699), but for now, all you need to know is that (a) the American Post Office has had a monopoly over what the law now calls a “letter” ever since the Articles of Confederation; and (b) not everything is a “letter.”

For my present purposes, though, the Post Office’s practical monopoly, its ubiquity through the early portion of American history, is more important. Again, lots of details in the article (pp. 700-04), but here’s a summary:

Through the early part of the nineteenth century, the Post Office grew profoundly. And its growth paralleled the population growth of the country, not simply its economic growth. How exactly did this happen? In part because of a seemingly unrelated debate taking place during deliberation of the same 1792 Post Office Act I mentioned yesterday, a debate about whether Congress or the Executive should have the power to designate postal routes.

Eventually, Congress decided to retain the authority to designate postal routes when it passed the 1792 Act, a decision that led to an expansion of the post office throughout the country, including particularly the transappalachian West. By leaving the authority in Congress’s hands, the 1792 Act helped change the assumption, prevalent in Great Britain and continental Europe at the time, that each individual postal route had to be self-supporting. That assumption effectively had to be abandoned as the power to designate post offices and post roads became the first opportunity for the dispensing of what we would today call congressional pork. In essence, the structure of the House ensured that the postal network would expand on the basis of population rather than commercial need since a post road and post office was something tangible that every federal Representative could bring his constituents.

The postal statutes throughout the early years actually listed the location of the roads and post offices in great detail. For example, an 1800 statute was so specific that it mandated that a new postal route in North Carolina pass by the house of either John Anders or William H. Beaty. Has anyone ever heard of these people? I certainly haven’t. I don’t mean to cast aspersions, but my guess is that their primary importance lay in having a friend in Congress.

The legal monopoly was thus augmented by a seemingly unrelated policy choice, one that embedded the post office into the social fabric of virtually every American community. Together, these early policy choices set the Post Office on a course towards which, as Justice Holmes put it in 1922, “habit and law combine[d] to exclude every other” means of long-distance communication. Leach v. Carlile, 258 U.S. 138, 141 (1922) (Holmes, J., dissenting).

Constitutional Law - The “Right to Receive” Ideas

The language of the First Amendment prevents the government from “abridging the freedom of speech, or of the press.” On its face, then, it doesn’t say anything about those who listen to “speech” or those who read the products of “the press.” The “right to receive” ideas is the First Amendment principle that grants rights to listeners and/or readers, rather than just speakers and/or writers.

Since by this point you have all no doubt picked up on my constant refrain, it should come as no surprise when I tell you that the first time the Court held that there is a “right to receive” ideas was in a case involving the Post Office, the 1965 case Lamont v. Postmaster General. Lamont involved a First Amendment challenge to a law that required a postal patron who was sent “communist political propaganda” in the mail to return a postcard indicating his or her desire to receive the materials prior to receipt – in essence, to tell the post office, “I want these materials that you the government deem to be communist political propaganda.”

The Court unanimously invalidated the statute. [As a side note, Lamont -- a full 174 years after ratification of the First Amendment — was the first case in which the Court invalidated a federal statute under the Free Speech and Press Clauses of the First Amendment.] The Court reasoned that the statute violated the First Amendment “because it require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights” (my emphasis). The details of the Court’s reasoning are not crucial, but what is important is that the Court nowhere explained why the “addressee,” the recipient of the mail, even has a First Amendment right. That task fell to Justice Brennan, who wrote a concurrence explicitly stating that “the right to receive publications is … a fundamental right,” the protection of which is “necessary to make the express guarantees [of the First Amendment] fully meaningful.”

So, what exactly does this very abstract principle mean? The crux of my claim is that the right to receive publications is effectively limited to the Post Office — that is, the Court’s understanding of the abstract “right to receive” principle was dependent on the institutional context of the case and, in particular, on the Post Office’s effective monopoly over long-distance communication. One way to see this is to see what happened when someone argued for this so-called “right to receive publications” in a very different institutional context, the public school library.

In a 1982 case, Board of Education, Island Trees Union Free School District v. Pico, the Court addressed a constitutional challenge by students to a local school board’s decision to remove several books from a school library. Because of the unusual break-down of the votes of the Justices, the case’s actual holding was very narrow, consisting of little more than a remand to reverse a grant of summary judgment in favor of the school board. But the principal opinion — by Justice Brennan — relies on Lamont, in essence concluding that the school board violated the students’ “right to receive” by removing the books. But it’s clear — and Brennan acknowledges this — that the “right to receive” can’t apply to library acquisition decisions (even though Brennan would have held that it applied to removal decisions): it would obviously wreak havoc on libraries if patrons could claim a constitutional “right to receive” a particular book.

The dissents in Pico (the library-book-removal case) illustrate how Lamont (the communist-propaganda-in-the-mail case) is dependent on unique characteristics of the Post Office. In one of the Pico dissents, Justice Rehnquist specifically criticizes Justice Brennan’s attempt to import the “right to receive” into the context of the school, and in doing so, he refers to Lamont as a case involving a “complete denial of access to the ideas sought” (my emphasis).

Now, this is no doubt an overstatement. For example, the law at issue in Lamont had huge exceptions, including for U.S. government officials, public libraries, and universities. Another exception was for first-class mail. If the “communist political propaganda” was sealed in an envelope, it could be sent without the need for the addressee to send the Post Office a postcard.

So literally, Justice Rehnquist was wrong. The law in Lamont did not involve a “complete denial of access.” Still, the basic point, I think, remains. And, in this, Justice Rehnquist was certainly correct. A restriction on postal distribution is very much like a “complete denial of access.”

The reason of course is that the American Post Office was like a “monopoly” in some abstract sense — that is, it is only where a conduit is a “monopoly” that an inability to receive materials through that conduit approximates a “complete denial of access.” But, it was not the Post Office’s legal monopoly, but rather its effective monopoly — its ubiquity in American life — that rendered the law restricting communist political propaganda the equivalent of a “complete denial of access.” It was thus this institutional feature of the Post Office that permitted the Court to hold that the First Amendment includes a “right to receive.”

But, of course, as I described earlier, that ubiquity was not natural. It was created by policy choices, in particular by the early policy choice to give Congress the power to designate postal routes.

If you’ve stayed with me until now, congratulations. Tomorrow I’ll talk about communications privacy, a principle that impacts virtually everyone. And, as was the case yesterday, the connection between the legislative choice and the eventual constitutional doctrine is much more straightforward and easier to see.

6 Comments

Tuesday, June 17, 2008

Ironic Claims of Irony Alert: Glenn Reynolds, Michelle Malkin, and Patterico have noted the apparent irony that the Associated Press quoted 154 words from one of Patterico's blog posts soon after threatening bloggers for quoting fewer words than that from Associated Press stories.

  I am no copyright lawyer — don't try this at home, kids — but I'm not sure I get the inconsistency. The 154 words that the AP quoted weren't words written by Patterico: They were words from Mrs. Kozinski that she then submitted for publication to Patterico. I am no copyright lawyer — note repeated caveat — but I would think that Patterico had an implicit license to publish Mrs. Kozinski's message but did not himself get the copyright in it. If that's right, copying from Patterico's blog didn't violate Patterico's copyright. But then as I said, I am no copyright lawyer. Any actual copyright lawyers care to weigh in?

  UPDATE: Over at Instapundit, Glenn responds:
In response to Orin Kerr, those words certainly belonged to someone, that someone wasn't the AP, and the AP nonetheless used them without permission. If that use is okay, then . . . .
  Two responses back to Glenn. First, I'm not sure we know the AP used them without permission. We know that the AP reporter called Mrs. Kozinski and confirmed the authenticity of the statement posted on the web; are we sure that this call did not include an explicit or implicit permission to the AP that they could reprint it? Second, fair use is always contextual and case-by-case. I am not a copyright lawyer (that makes four), but my understanding is that copying the statements of a person who is "trying to get the word out" is really different from a fair use perspective from copying the statements of a pundit or reporter. So while I realize that this sort of thing is like blogospheric catnip, I'm not sure there's much substance to it.
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Injunction Ordering Blogger To Stop Blogging About Someone,

reversed today (though on statutory grounds rather than First Amendment grounds) by the North Carolina Court of Appeals:

Plaintiffs alleged defendant had “posted information on her website stating that [E.K.] [Linda Ramsey's daughter] harasses other children and accused [E.K.] of being the reason kids hate to go to school.” Plaintiffs also alleged that on numerous occasions defendant had referred to [E.K.] on her website as “endangered,” “offspring,” “bully,” and “possum,” which caused [E.K.] to suffer emotional distress. At the hearing, defendant admitted publishing the following message on her website:

With all the bulling [sic] and harassing that goes on in our school system. Then the trouble that went on Friday at Madison Middle. The first student in that age group that came to mind was Linda [Ramsey]'s daughter. Wasn't this the student that harassed the Cantrell child? And we wonder why some kids hate to go to school.....

Defendant's website also featured: (1) a voice recording of plaintiffs' deceased mother and grandmother [possibly “an alleged threatening phone call defendant had received from plaintiffs' mother and grandmother” -EV] and (2) references to Linda Ramsey as being a “crow,” “idiot,” and “wack.” ...

[T]he trial court granted plaintiffs' request [for a temporary civil no-contact order] and ordered defendant to cease entering comments on her website regarding [E.K.] or other members of plaintiffs' family....

The trial court reviewed several of plaintiffs' exhibits including the following “blog” written by defendant and published on her website on 7 May 2007:

If anyone retaliates against anyones [sic] children - Let me know - I will report it and follow up at the state level- This is all the more reason to do this. Why do you think there is so much of a problem at the schools- when it comes to bullying? Because these children watch their parents. Fine example Linda Ramsey- one of the biggest bullys [sic] in this county. She gets it honest...

She learned from her mother and now she is teaching her daughter the ropes. This is fact and this county knows it. [] But it is going to stop and if you want change- WRITE THE LETTERS.... CH

The trial court found that defendant had harassed plaintiffs within the meaning of N.C. Gen. Stat. § 50C-1(6) and (7) and issued a civil no-contact order against defendant based, inter alia, upon the preceding message. Defendant was ordered to: (1) cease “cyber-stalking” plaintiffs; (2) cease harassment of plaintiffs; and (3) not contact plaintiffs by telephone, written communication, or electronic means. Defendant appeals.

I infer from the earlier no-contact order that the permanent order to stop "cyber-stalking" was, like the temporary order, an order "to cease entering comments on her website regarding [E.K.] or other members of plaintiffs' family."

The Court of Appeals concluded that this order wasn't statutorily authorized, because the statute applied only applied if the defendant intended to threaten (and there was no finding of that by the trial judge) or if the defendant "intended to and in fact caused plaintiffs to suffer substantial emotional distress."

“Substantial” is defined as “considerable in [] value, degree, amount or extent[.]” Black's Law Dictionary defines emotional distress as “[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person's conduct.” Applying the plain meaning of these terms, we hold that no substantial evidence waspresented that tended to showed defendant intended to and in fact caused plaintiffs to suffer substantial emotional distress to warrant issuance of a civil no-contact order.

And, "[w]ithout condoning the language used on defendant's website, the statute does not allow parties to implicate and interject our courts into juvenile hurls of gossip and innuendo between feuding parties where no evidence of any statutory ground is shown to justify entry of a no-contact order."

This conclusion made it unnecessary to decide whether the First Amendment barred such an order, or what another statutory requirement -- absence of "legal purpose" for the allegedly distressing speech or conduct -- might mean. (Even if an intent to inflict substantial emotional distress is shown, the statute applies only if the defendant acted "without legal purpose," though it doesn't define what constitutes "legal purpose.")

12 Comments
Religious liberty and SSM:

As wedding bells begin ringing for gay couples and families in California, opponents of gay marriage are turning up the volume on a relatively new argument: that same-sex marriage is a threat to religious liberty. Just today we have seen two passionate salvos. Maggie Gallagher, writing at NRO, warns that gay marriage means "the official harassment and repression (by our own government) of traditional religious faiths." Marc Stern, general counsel for the American Jewish Congress, writing in the L.A. Times, warns that "it is religious rights that are likely to be 'obliterated' by an emerging popular majority supporting same-sex relationships."

There was nothing very surprising in either of these op-eds. Maggie began pressing the religious-liberty argument against gay marriage at least three years ago. Stern has a chapter on "Gay Marriage and the Churches" in a forthcoming book of essays by several authors entitled Same-Sex Marriage and Religious Liberty. The book is being sponsored by the Becket Fund for Religious Liberty, which officially takes no position on gay marriage, but regularly files amicus briefs in gay-marriage cases warning of "looming conflicts" with religious freedom.

More surprising was a report broadcast yesterday by National Public Radio, which pointed to "signs of a coming storm" in the "collision" of two legal principles: "equal treatment for same-sex couples" and "the freedom to exercise religious beliefs." The radio version of the report offered two examples of this "collision" that have been widely circulated by gay-marriage opponents. A written addendum to the report offered several more. The most commonly cited examples, summarized below from the report, include:

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.

*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian. [UPDATE from Andrew Koppelman, with info not provided by NPR: "Right now the dispute is being litigated on a motion for summary judgment, so there's been no trial, but Benitez's allegations are on pp. 4-6 of her Supreme Court brief, which you can find at http://data.lambdalegal.org/pdf/legal/benitez/benitez-opening-brief.pdf. If she's right, then she had no choice but to go to that group under her health insurance plan, received significantly inferior health care for nearly a year, evidently because of the doctors' scruples, and was finally told, after wasting a year waiting for appropriate treatment, that she wouldn't receive treatment from that group at all."]

*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.

*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.

These examples, and others given in the NPR report and by gay-marriage opponents, illustrate many things. They show that there are indeed antidiscrimination laws that apply to those who provide services to the public. They show that these antidiscrimination laws sometimes require individuals and organizations to do things that these persons and organizations claim violate their religious beliefs. They show that conflicts between antidiscrimination laws and religious belief often wind up in court, requiring judges and other decisionmakers to decide how the conflict should be resolved under the law and the Constitution. They show that on at least some occasions antidiscrimination laws are held to trump religious beliefs and that, as a result, religious individuals and organizations must sometimes decide whether to comply with the law or to stop providing services to the public. They even show that many of these disputes arise in the context of religious actors who object in particular to gay relationships.

What these examples do not show, however, is that gay marriage is "repressing" or "obliterating" religious rights or that "a storm is coming" because gay couples are marrying. With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of them involve a claim of discrimination provided by the gay couples' status as married or as joined in a civil union or domestic partnership. All of the cases involve the application of state laws barring discrimination on the basis of sexual orientation that pre-date the official recognition of gay relationships. Neither the viability of the discrimination claim nor the viability of the religious objectors' desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples' relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance.

The most egregious abuse of these examples to undermine gay marriage is the Catholic Charities case, which involved the application of a 1989 antidiscrimination law. That dispute arose because the Catholic Church objected to complying with the law for the first time only after gay marriage was permitted in the state. It was a fortuitously timed conflict for gay-marriage opponents given that the state legislature was at that very moment considering a constitutional amendment to ban gay marriage.

So it is not true that (as NPR put it) gay couples "armed with those legal protections" newly provided by marriages, civil unions, or domestic partnerships, are suddenly challenging religious objectors. The conflicts between the law and religion that NPR points to have been around for a very long time. They go back some three decades, to the very first state and municipal laws that protected gay couples from discrimination in employment, housing, and education. (Indeed, conflicts between antidiscrimination law and religious objectors go back even further, to laws that forbade discrimination on the basis of race and sex.) NPR could have broadcast this same story using similar cases ten or even twenty years ago. But, apparently drawing on complaints by gay-marriage opponents, NPR chose to do so on the day California began to sanction same-sex marriages. That's misleading and irresponsible.

What Gallagher and many others in the anti-gay marriage movement are really objecting to is the extension of antidiscrimination law to gay people — at least insofar as this extension conflicts with someone's claim that their religious scruples require them to discriminate against homosexuals.

That's an argument we've been having for a long time, and it's worth continuing to have it. It is useful to continue to think about how antidiscrimination principles can accommodate religious faith. Religious freedom is a first and founding principle of this country. I think religious accommodation to private persons and organizations should be generously provided, even where not required by the Constitution. At the very least, accommodation should be made where it can be offered without harming the protected class. For that reason, I think an exemption should have been offered in several of the cases cited in the NPR report, including in the case of Catholic Charities of Boston (as I wrote at the time).

(In my view, public officials like the Vermont clerk cited in the NPR story, should be distinguished from private persons. As enforcers of the law and representatives of the state, they should be required to do their duty and enforce the law evenhandedly, regardless of their personal objections. While I'd be generous about accommodating the religious objections of private persons, I am very wary of introducing a system of exemption for public officers serving the public with taxpayers' money and charged with administering the law.)

In the larger national debate over gay marriage, the biggest problem for gay-marriage opponents has been to demonstrate what Eric Posner recently called it "impossible" to demonstrate: that recognizing gay marriage causes some tangible harm. They have tried many harm-based arguments but so far nothing has stuck. Not "evidence" of social decline from Scandinavia or the Netherlands. Not polygamy. Not population implosion.

So opponents of gay marriage are now using what is basically old news in the culture war as an argument to warn the country about the supposedly novel dangers "looming" ahead because of gay marriage. It is an attractive argument because it appeals to Americans' basic sense of fair play, their commitment to the country's fundamental principles, and of course their own deep religious faith. It casts good religious people as victims and gay couples as victimizers who care only about themselves. If you don't look at the complicated facts of the cases, if you disregard the applicable laws involved, if you ignore the difficulty of deciding how to administer exemptions in a consistent and principled fashion, this new harm-based argument is an appealing one.

Even the examples of conflict arising from antidiscrimination law are often exaggerated and oversimplified. The New Jersey beachfront pavilion case cited in the NPR report, for example, involves a plausible claim that the pavilion is quasi-public, not religious, property since the religious group got a $500,000 tax break after representing to the state that the disputed property would be open to the public. The group also reportedly gave up a degree of property ownership rights for the boardwalk and beach in the 19th century to avoid taxation. All of this is disputed, and the legal significance of these matters is open to debate, but it's hardly a straightforward case of a church being required to sanction a gay wedding on its own undisputedly exclusive and private property.

Now it's true that some states and cities (and to a limited extent, federal civil service law) protect people in various ways from "marital status" discrimination. It might be thought that such laws, where they exist, will provide more ammunition to married gay couples who face discrimination. But these laws already protect people even if they're single, much less if their marriage is a gay or straight one.

It's also true that we are likely to see a rise in conflicts between antidiscrimination law and religious objectors in the future. That's not really something gay marriage is "causing," though married gay couples will probably be most prominent among those complaining about discrimination. They don't see themselves as second-class citizens and are more likely to object when they think they're being treated as if they are.

Instead of gay marriage causing a collision, both gay marriage and religious conflicts with antidiscrimination law are themselves the product of a much larger trend that is moving the tectonic plates of our culture. That trend is the increasingly common view that homosexuality is a natural and harmless variation of human sexuality, that gay people are entitled to be judged on their merits and not on the basis of outdated opprobrium, and that these beliefs should to a significant degree be reflected in law.

Many people in our society object strongly to this trend. I think the law should make room for them to a considerable extent. It should be possible, in particular, to recognize gay marriage and to continue to protect religious faith at least to the extent we have already done so when religious views about marriage diverge from the secular law of marriage. Of course no religion should be required to change its doctrine to recognize gay unions. Of course no religious official should be required to perform a same-sex marriage (or an interracial wedding, as some once objected to, or a second-marriage wedding, as some object to now, or any other wedding he objects to). These things have never been required and nobody is asking that they should be.

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion — all without extinguishing religious faith.

Matters are more complicated when religious persons and organizations provide services to the public or ask for public funds while at the same time requesting to be exempt from the rules that apply to everyone else. These conflicts come up in a dizzying variety of contexts, where the equities vary wildly and the costs of allowing exemptions are sometimes great and sometimes small. No person of good will should have a one-size-fits-all approach to this — everybody gets an exemption all the time or nobody ever does, no matter the circumstances — and our courts and laws don't usually adopt a categorical approach. Let's think hard about the hard choices involved, but let's not exploit pre-existing conflicts to gain the upper-hand in the gay-marriage debate or scapegoat gay couples who want their families protected by the law.

UPDATE: There's an engaging exchange now between Robert Vischer and Dan Markel, both of whom support SSM, on the subject of exemptions for religious dissenters from antidiscrimination laws. See Vischer's post here and Markel's response here. Vischer is somewhat more concerned about the conflicts between religious liberty and SSM than I am; Markel is generally less willing than I am to indulge accommodations. At any rate, it's a very good exchange and worth a look.

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William Cobbett, Proto-Blogger:

I just ran across a fascinating pamphlet by William Cobbett (also known as Peter Porcupine), an indefatigable newspaperman, commentator, and occasional politician of late 1700s and early 1800s England and America. The pamphlet discussed at some length his prosecution in Pennsylvania for supposedly libeling the King of Spain and the Spanish Ambassador; and something about its style reminds me of some aspects of modern blogging. Perhaps it's the fisking of Judge McKean's grand jury charge; perhaps it's the nom de plume "Peter Porcupine"; but perhaps it's that the discussion of the bill of indictment struck me as quite similar to how bloggers speak about the nastygrams they sometimes receive from lawyers. Cobbett quotes the bill of indictment (which the grand jury refused to sign) in its entirety, and then adds:

This Bill of Indictment, however insignificant it may be in itself, has already made considerable noise in the world, and it will yet make a great deal more. Papers of this sort generally travel from the court to the clerk's office, and there they lodge in eternal sleep. But this Bill is certainly destined to another fate. Neptune will lend his waves and Aeolus his winds to conduct it over the deep. It will see climes that the inventors of it never saw, nor ever will see. Little did they imagine, that they were becoming authors, and authors of such celebrity too, as if it please God, I will render them.

Quote that next time you want to thumb your nose at your target's lawyers.

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[Anuj Desai, guest-blogging, June 17, 2008 at 12:58pm] Trackbacks
Postal Subsidies for News and the “Unconstitutional Conditions” Doctrine:

As I briefly mentioned yesterday, my principal claim is that eighteenth-century decisions about postal policy -- legislative decisions -- shaped judge-made constitutional doctrine much later. To put it simply, the judges interpreting the Constitution in my examples were effectively constitutionalizing legislation; they took earlier principles that came from policy choices made by Congress and embedded them into constitutional law. But these were not ordinary policy choices; rather they were legislative choices about the character of an institution -- and, in particular, an institution that serves values we now think of as “constitutional.”

Consider the process as four steps: (i) Congress passes a statute; (ii) The statutory provisions give an institution certain attributes; (iii) Over time, social practice embeds those attributes into the institution; and (iv) The courts then takes those embedded attributes and write them, in different ways, into constitutional doctrine.

So, let me turn now to some specifics. As I said, I will eventually describe three constitutional doctrines: (1) First Amendment restrictions on government subsidies for speech (i.e., First Amendment “unconstitutional conditions”); (2) the First Amendment “right to receive” ideas; and (3) the Fourth Amendment principle of communications privacy.

My claim is that the origins of these particular doctrines can be found in eighteenth-century postal policy. In particular, I will briefly describe the development of three important features of the early American Post Office: (1) government subsidies for newspaper delivery; (2) the Post Office’s legal and practical monopoly over long-distance communication; and (3) privacy of correspondence.

In this post and the next two, I’ll connect each of these features with a corresponding constitutional doctrine. Today, I’ll connect the eighteenth-century policy decision to subsidize postal delivery of newspapers with the “unconstitutional conditions” doctrine. [I will refer to it simply as the “unconstitutional conditions” doctrine, even though the concept of “unconstitutional conditions” is much broader than the First Amendment Speech and Press Clauses.]

Early Postal History -- Government Subsidies for News

So, let’s start with government subsidies for newspapers. In the first of my two articles, I go into great detail about the nature of these subsidies and how they developed -- relying heavily on the historians Richard R. John and Richard Kielbowicz -- but here, let me just highlight a few key points:

1. The subsidies were for newspapers, and they were paid largely by letter writers, most of whom were merchants and traders conveying market information. In the early years, the Post Office was largely self-sustaining. So the subsidies were effectively a direct redistribution from some users of the postal network to others.

2. The subsidies were huge. The price to send a letter was anywhere from six to sixteen times the price to send a newspaper (depending on the distance), and yet, as I said, the Post Office broke even. Given those two facts, it shouldn’t take very sophisticated math to understand the basic gist of the subsidies. As one illustration of the extent of the subsidies, consider the fact that, in 1794, newspapers made up 70% of the weight of postal delivery but only 3% of postal revenues. This meant of course that letter writers -- providing a mere 30% of the weight -- were funding virtually the entire cost of the postal system.

3. The subsidies were premised in part on the ideology of republican government, the idea that if the people -- not the Crown and not Parliament -- are to be “sovereign,” the people need to be able to share information with each other, especially news about public affairs. Given the geographically dispersed nature of the federal republic, this information sharing required long-distance communication. The newspaper subsidies were thus a way in which the federal government affirmatively promoted republican values.

4. Though it was clear to everyone that newspapers generally communicated different content from letters (and generally consisted also of one-to-many, rather than one-to-one, communication), the subsidies were granted solely on the basis of the format of the communication -- printed as opposed to hand-written -- not the content. They were thus premised on a form of neutrality -- not complete neutrality, but a form of neutrality nonetheless.

5. Most important, the subsidies were written into the 1792 Post Office Act and are nowhere to be found -- explicitly, at least -- in the Constitution. Thus, the Second Congress enacted a law that embodied the principle that the government can affirmatively promote what we would today call “political speech,” as long as the government did so in a “neutral” way.

Constitutional Law - "Unconstitutional Conditions" Doctrine

Now, let me turn to the “unconstitutional conditions” doctrine. The question in an “unconstitutional conditions” case is whether -- and, if so, when -- the First Amendment constrains the government when it acts as an allocator of resources. Usually “resources” means money, but it doesn’t have to. Theoretically, the broader notion encompasses use of government property or even government employment. [On this last point, think of Justice Holmes’s famous quip that a person “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”]

Under current doctrine, “the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech’ even if he has no entitlement to that benefit.” Bd. of Comm'rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Like most First Amendment questions, though, the devil is in the details. In recent years, we’ve seen the problem come up in cases involving government funding of, among other things, the National Endowment for the Arts, family planning clinics, the Legal Services Corporation, public television stations, and public libraries.

The first time the Court addressed the problem, though, involved -- yes, you guessed it --postal subsidies. During the nineteenth century, the newspaper subsidies I described earlier had expanded to other types of periodicals. At the same time, however, clever entrepreneurs had used the lower rates in ways that failed to comport with the public purpose the subsidies were meant to further (e.g. publications devoted entirely to advertising). So Congress attempted to define eligibility for the subsidized rates in ways that would exclude some publications, thereby resulting in postal employees having more discretion to determine eligibility.

Eventually, in 1946, the Supreme Court rejected the Postmaster General’s attempt to deny the subsidized rates to the magazine Esquire because of its sexually explicit content. In doing so, what the Court effectively did was to constitutionalize the “neutrality” characteristic of the early postal subsidies. As with the history I described earlier, you can find the details of the relevant cases in the first of the two articles, but the key point is that the Court’s decision in the Esquire case depends entirely on (a) the institutional context of the Post Office, and (b) the nature of the subsidized rates, as evidenced by their historical development, a development that began with a statute and that ultimately depended on an embedding of those subsidies -- including via several subsequent statutes -- into the fabric of the Post Office itself.

Finally, note also that the Court created First Amendment doctrine that has a “counter-majoritarian” aspect to it -- remember that the Court is invalidating an action taken by a presidential appointee, the Postmaster General -- and yet is simultaneously relying on postal statutes, albeit long-standing statutes. Of course, the Court also uses the language of the First Amendment, the “higher law” that purports to give it power to invalidate the Postmaster General’s decision, but at the same time, the First Amendment principle upon which it relies comes from the original Congressional -- i.e., majoritarian -- decision, a decision that was embedded over time into the fabric of the Post Office itself. I’ll have more to say on this broader idea in my last post.

Tomorrow, though, I’ll discuss how the postal monopoly -- both legal and practical -- helped give us a constitutional right to read.

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More Opinions on Ricci En Banc:

Via How Appealing I've learned that two more judges on the U.S. Court of Appeals for the Second Circuit have issued opinions respecting the court's denial of en banc review in Ricci v. DeStefano. Judge Calabresi concurred in the denial, and Chief Judge Jacobs dissented. As I suggested in my prior post, I think the dissenters have the better of the argument. Chief Judge Jacobs makes some particularly important points in response to his colleagues' reliance on the Second Circuit's "tradition" of denying en banc (or, as preferred in the Second "in banc") review.

The grant or denial of in banc review is governed by 16 Fed. R. App. P. 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of the Court’s decisions or “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a). Accordingly, the next subdivision of Rule 35 requires the petition to explain why the case falls within one or both of these categories. See Fed. R. App. P. 35(b).

This weighing calls for an exercise of discretion. . . .

No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying “no” by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position. . . .

The exercise of discretion to hear cases in banc is integral to the judicial process. The advisory notes emphasize that “an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts.” See Fed. R. App. P. 35, Advisory Committee Notes 1998 Amendments). In other words, issues of exceptional importance that may divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve.

I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. Of course, if an in banc poll discloses broad-based agreement with the panel opinion, in banc review may be a spinning of wheels. Under such circumstances, it may very well be an appropriate exercise of discretion to deny rehearing in banc. But to rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.

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Abramoff Associate Gets New Trial:

This morning the U.S. Court of Appeals for the D.C. Circuit overturned the conviction of David Safavian, former chief of staff of the General Services Administration and a figure in the Jack Abramoff scandals, and remanded the case for a new trial.

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Monday, June 16, 2008

Interesting Then, and Now: I was surfing about the Interweb recently and I came across this 2002 article by my colleague Jeffrey Rosen about the failed DC Circuit nominations of Allen Snyder in 1999 and John Roberts in 1992. I remember reading the article when it came out, but it's still pretty interesting to read six years later (in part because Roberts ended up in a relatively high-profile position in the end). Too bad Snyder was never confirmed, though: I thought he would have been an outstanding judge.
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Important Constitutional Issues Raised by Ricci v. DeStefano:

I share Jonathan Adler's and Judge Jose Cabranes' view that the Second Circuit should have given en banc consideration to the important issues raised in Ricci v. DeStefano, the case where the New Haven Fire Department set aside the results of a promotion exam for firefighters because of the racial distribution of those who would otherwise have been promoted. As Judge Cabranes (a liberal Democrat and Yale Law School [correction: adjunct] professor appointed by Bill Clinton) points out in his dissent to denial of rehearing en banc (available at the above link), the case raises important issues under both the Equal Protection Clause and Title VII of the Civil Rights Act. In this post, I note some additional constitutional issues that Judge Cabranes didn't focus on directly. If time permits, I will address the Title VII issues in a later post. The constitutional issues here are obviously important enough to justify en banc consideration or at least a published opinion by the three judge Second Circuit panel (which instead chose to affirm the district judge's unpublished opinion in a brief, unpublished summary judgment order).

I. The Constitutionality of "Race-Neutral" Decisions to Abolish Public Employment Opportunities out of Racial Motives.

A crucial issue raised by the case is the question of the range of situations whether a "race-neutral" denial of opportunities by government counts as an Equal Protection Clause violation if the government's action was motivated by racial considerations. Although New Haven's decision to deny promotions to those firefighters who qualified for them through the exam was motivated by racial considerations, it was facially "race-neutral" in the sense that it denied promotion to all those who would have qualified for it through the exam, regardless of their race. If there is a violation of the Equal Protection Clause here, it occurred only because the government's formally race-neutral decision was taken out of racial motives. The interesting additional twist here is that the action in question was not the establishment of a supposedly discriminatory promotion system, but the scrapping of one. Decisions to shut down a government program or benefit are usually much harder to challenge on constitutional grounds than decisions to set one up.

This situation is somewhat similar to the 1971 case of Palmer v. Thompson, where a closely divided Supreme Court refused to invalidate a Mississippi city's decision to shut down several public swimming pools rather than allow them to be racially integrated (as a previous court order required). The Court reasoned that the city was not required to provide public swimming pools in the first place, and that the decision to shut down the pools did not affect blacks "differently from whites." In Ricci, New Haven likewise is not required to provide exam-based promotions to firefighters in the first place, and it could be argued that its action affects all racial groups equally in the sense that firefighters of all races are now ineligible to gain promotion on the basis of the exam in question.

However, the public employment context differs from the public service context in a number of ways. In the famous 1976 case of Washington v. Davis (involving police promotions in the District of Columbia), the Court held that a race-neutral promotion system could be unconstitutional if plaintiffs could prove that it had been enacted for the purpose of disadvantaging particular racial groups. But it's hard to say to what extent this principle applies to a situation where a promotion system has been scrapped for racial reasons, as opposed to instituted for them.

Moreover, in Ricci, the city acted as it did precisely because it knew that white (and a few Hispanic) firefighters would otherwise gain promotion, while no black ones would. By contrast, in Palmer it was reasonable for the Supreme Court to assume that both black and white residents of the city would have used the swimming pools had they not been shut down. Be that as it may, it is far from clear whether Ricci falls in the same class of cases as Palmer or whether it falls under the rule announced in Davis. Therefore the Second Circuit should have considered the issue more carefully.

II. Strict Scrutiny and Racial Preferences in Government Employment Decisions.

If a court were to hold that New Haven's action in Ricci was a presumptively unconstitutional racial classification (thereby deciding that the case comes under the Davis rule rather than under Palmer), the city could still prevail if it could prove that its decision passes "strict scrutiny." In a wide range of cases, the Supreme Court has held that racially discriminatory actions by government are constitutional if they pass the test of "strict scrutiny," which requires them to be "narrowly tailored to the advancement of a compelling state interest." Many experts once believed that strict scrutiny is virtually always fatal to the challenged government policy. However, in the 2003 case of Grutter v. Bollinger, the Supreme Court held that affirmative action preferences in state universities can pass strict scrutiny if they are narrowly tailored to the advancement of the state's interest in educational "diversity," which the Court ruled was a "compelling state interest."

A crucial question is whether there is any compelling state interest that might justify affirmative action racial preferences in municipal fire department hiring. The district court found that New Haven was motivated, at least in large part, by a desire to promte "racial diversity" in the fire department. I can see a strong argument that there might be a compelling state interest in racial diversity in police department hiring, at least in some cases. A nearly all-white police department in a city with a large black or Hispanic population might not be able to gain the public trust it needs to do its work effectively. For example, minority citizens might be unwilling to give information about suspects and otherwise cooperate with investigations by a police department perceived as a "white" institution. Police brutality problems might also be greater in such a situation.

By contrast, it's much harder to argue that minority residents won't give adequate cooperation to an overwhelmingly white fire department. Owners and residents of burning buildings are unlikely to give much consideration to the racial identity of the firefighters who try to put out the blaze.

Obviously, I'm no expert on fire department policy, so it may be that there is some compelling interest in firefighter racial diversity that I'm missing. Even if there is a compelling state interest here, courts would also have to decide whether the use of racial considerations here was "narrowly tailored" enough. Either way, federal courts will have to consider the constitutionality of affirmative action preferences by government agencies in the wake of Grutter.

Related Posts (on one page):

  1. More Opinions on Ricci En Banc:
  2. Important Constitutional Issues Raised by Ricci v. DeStefano:
  3. Unpublished but En Banc Worthy:
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Law School Conference to Design Plan For Prosecution and (If Convicted) Execution of President Bush and Other Officials: I'm not positive that this is real, but I think it is. And if it is, Michelle Malkin is going to have a field day with it. And I wouldn't be surprised if the Secret Service finds it worth following up, too. Hat tip: Victor Steinbok.
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Unpublished but En Banc Worthy:

Last week, the U.S. Court of Appeals for the Second Circuit divided 7-6 over whether to hear Ricci v. DeStefano en banc. The case involves a challenge by several white and Hispanic firefighters to the New Haven Fire Department's alleged failure to use the results of two promotional exams because the NHFD did not like the racial distribution of the results. Denial of en banc review on the Second Circuit is hardly news. The close division of the court, on the other hand, is interesting, as is Judge Cabranes dissent from denial, which begins:

This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

The use of per curiam opinions of this sort, adopting in full the reasoning of a district without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional important," a majority of this Court voted to avoid doing so.

I respectfully dissent from that decision without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case.

Judge Cabranes' dissent (which begins on page 9 of the order) was joined by Chief Judge Jacobs, and Judges Raggi, Wesley, Hall, and Livingston. Those voting against en banc review were Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzman, and Parker. The original panel consisted of Judges Pooler, Sack, and Sotomayor.

Over at Bench Memos, Ed Whelan is dismayed by the court's "apparent shenanigans," which he suggests were motivated by a desire to avoid Supreme Court review of the case. Whatever the motive, the actions of the original panel, the failure to handle an issue of this significance in a published opinion in particular, are highly questionable, to say the least. The New York Law Journal reports further here.

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"Alleged Neo-Nazi's Kids Taken":

So reports the Winnipeg Free Press: "Child and Family Services recently seized two young kids from a Winnipeg home based on concerns their father -- an alleged neo-Nazi -- was filling their heads and marking their bodies with messages of hate, the Free Press has learned."

Child and Family Services is apparently arguing that "The children may be at risk due to the parents' behaviour and associates. The parents might endanger the emotional well-being of the children." (It's not clear who made the markings and why the girl didn't cover them up, but it is pretty clear that the parents were teaching the girl the message behind the markings.) CFS seems to be willing to return the children, but apparently just because the mother, something of a white supremacist herself, had "recent[ly] separat[ed] from [the white] supremacist husband."

Now the parents here may be poor parents for various reasons. Among other things, "[t]here are also concerns about parental drug and alcohol use in the home," and apparently a good deal of missed school supposedly caused by the parents' liking to sleep late.

Nonetheless, the article -- and other press coverage I'd seen -- does suggest that a big part of this matter turns on what the parents are teaching the children. (According to the CFS, "Religious (and) political practices that would be harmful to children and cause them to be at risk would be one of the considerations when assessing risk to a child," and CFS's definition of harm seems to go beyond imminent danger of physical harm, such as when a religious practice leads parents to refuse to treat their children's illnesses.) And while I agree that children can indeed be harmed by their parents' teaching them bad ideas, it strikes me as very dangerous for the government to be able to take children away from parents on these grounds. Imagine whom the government might decide to turn against next.

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Harris on How to Win At the Supreme Court: In the ACS panel I linked to below, the outstanding Supreme Court litigator Pam Harris had a very interesting presentation on the gap between law professor theories of constitutional interpretation and what arguments persuade the Justices. You can view her remarks starting at the 29 minute mark.
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Provocative Quote From the ACS Covention: From Professor Larry Tribe on constitutional interpretation:
All fundamental constitutional principles require an elaborate process of inference and construction far beyond anything that is simply deducible or even readily inferable from the fixed text.
Available here, at 7:25.

  In his remarks, Tribe suggests that judicial conservatives ("the Federalist Society") are also driven by a nontextual agenda. However, Tribe's evidence of this seems pretty weak. Tribe focuses mostly on the the Eleventh Amendment. While I agree that the conservatives on the Court have not taken a textual reading of the Eleventh Amendment, is Eleventh Amendment law really a big issue among judicial conservatives and the Federalist Society? I haven't thought so. My sense is that the Justices on the Rehnquist Court picked that one up (and then later mostly dropped it) on their own, without much of a movement behind it before or since.

  Of course, this doesn't mean that constitutional arguments popular on the right are all textual, or all consistent with original meaning. But Tribe's argument is that constitutional theories generally favored by the left are no less textual than constitutional theories generally favored on the right, which strikes me as a very weak claim.
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California gay marriages begin today

at 5 p.m. Pacific time (8 p.m. Eastern). You can watch live coverage from around the state at this TV station's website.

The first same-sex marriage legally performed in San Francisco, at 5:01 p.m. Pacific, will join Phyllis Lyon, 87, and Del Martin, 84. They have been together for 55 years.

Congratulations to the newlyweds!

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5-4 Split Watch:

The Supreme Court handed down two decisions today, one of which was a 5-4. As of today, that means that only five of the Court's 56 decisions have split 5-4 thus far. If one throws in the Court's 5-3 decision in Stoneridge and the Court's two 4-4 splits, that is still only eight decisions, or 14 percent of the Court's decisions. Only if the Court were to split 5-4 in all fourteen of its remaining cases could it reach last term's total of twenty-two 5-4 decisions, but this would still fall short of the 33 percent mark OT06.

Fourteen more 5-4 decisions is unlikely, but we will almost certainly see quite a few. (My guess is seven.) While it is typical for the Court to release a disproportionate share of 5-4 decisions at the end of the term, half of the pending cases are from the April term, and four more are from March, so not all of the cases remaining are close calls. In any event, with Heller (Second Amendment), Exxon (punitive damages), Kennedy (death penalty for child rape), and Davis (BCRA "millionaire's amendment) still in the queue, there will be plenty of opportunities for sharp disagreement among the justices.

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[Anuj Desai, guest-blogging, June 16, 2008 at 10:31am] Trackbacks
Hillary Clinton, the Post Office, and the Constitution:

Okay, I admit it, I used Hillary Clinton in my subject heading primarily to (a) pique your interest; and (b) get more search engine hits [Apparently, guest-blogging doesn’t give me access to Eugene’s metatags!]. I promise, though, that she’ll make an appearance … and soon.

But first, let me start with a thank-you to Eugene for inviting me to share my ideas in this space. It’s a real pleasure and honor to be here, not only among the regular “conspirators,” but also given the array of recent guest-bloggers including the likes of Cass Sunstein and James Q. Wilson. I’m afraid I won’t be able to reframe fundamental questions about the relationship between individuals and the state or empirically investigate the relationship between prison and crime, but I hope to say something in my own small academic corner. And, since I hope to build in the future on this work, I very much look forward to all of your comments and questions.

So now let’s return to Hillary Clinton. Back in October 2000 when she was first running for the Senate, the moderator at a televised debate asked for Clinton’s views on Bill 602P. Now, for those of you who’ve never heard of Bill 602P, you’re in good company: Clinton hadn’t either. What exactly was it? Yup, a tax increase: a proposal to impose a 5-cent tax on each e-mail message. Fortunately, as readers of this blog know well, Clinton is a tax-cutting crusader, and so she opposed the bill.

But who, you all might be asking, actually supported Bill 602P? Who could have been behind this plot to kill the goose of the Internet as it lays the golden eggs of diffusion of information? Clever readers with an economics bent will quickly intuit the answer. Who else but the evil monopolist whose business model was most threatened by the e-mail revolution: the U.S. Post Office.

Now, I hope it comes as no surprise that Bill 602P is an urban legend. But I use it because it tells us something about the perception of the Post Office in our so-called information age. The image of the Post Office in this story is one of a threatened monopolist and government bureaucracy with entrenched interests that seeks to retard the course of technological progress. In this vision one might even see the Post Office as Larry Lessig describes late twentieth century big media and telecommunications companies, as a dinosaur threatened by the Schumpeterian destabilizing impact of new communication technologies, only worse—a public dinosaur.

What I hope to do over the course of the week is to displace that image of the Post Office. I hope to convince you that the Post Office has -- like the Internet -- always been a medium of communications and that it served historically as a vehicle for a transformation in American society, just the sort that one imagines to be the result of a vast increase in the free flow of information.

More than that, however, I also hope to show you -- as Eugene pointed out in his welcome message -- that this relic of an earlier era shaped modern constitutional law. The basic idea is that choices about postal policy, made in the eighteenth century, eventually led to the shaping of three important constitutional doctrines: First Amendment "unconstitutional conditions," the First Amendment "right to receive" ideas, and the Fourth Amendment principle of communications privacy. On this, more details to follow. For now, though, I’m off to find a bunch of 42 ¢ stamps so I can send you all this “post.”

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Grand Jury Referral in U.S. Attorney Invetigation:

The Wall Street Journal reports:

Justice Department lawyers have filed a grand-jury referral stemming from the 2006 U.S. attorneys scandal, according to people familiar with the probe, a move indicating that the yearlong investigation may be entering a new phase.

The grand-jury referral, the first time the probe has moved beyond the investigative phase, relates to allegations of political meddling in the Justice Department's civil-rights division, these people say. Specifically, it focuses on possible perjury by Bradley Schlozman, who served a year as interim U.S. attorney in Kansas City, Mo. . . .

A grand-jury referral isn't an indication that criminal charges will be filed in an investigation. Prosecutors gather testimony from witnesses and can decide later not to pursue charges.

I have not followed this story all that closely, but this sounds like a potentially interesting development.

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Anuj Desai Guest-Blogging:

I'm delighted to report that Prof. Anuj Desai of the University of Wisconsin Law School will be guest-blogging this week about his articles The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, 58 Hastings L.J. 671 (2007) and Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553 (2007).

I had read the two pieces and found them to be fascinating and eye-opening stories about how the legislatively defined structure of a particular institution -- the post office -- has influenced the development of judge-made constitutional doctrine. I then asked Prof. Desai whether he might guest-blog about the articles, and he graciously agreed. I'm much looking forward to his visit.

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Is OT2007 Much of a Surprise?

Slate’s Dahlia Lithiwick offered her thoughts on the current Supreme Court term in yesterday’s Washington Post Outlook section in an essay titled “It Isn't Tilting in The Same Old Ways.” Lithiwick writes:

Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.
According to Lithiwick, “With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong” Really? As I recall, many court observers suggested last year’s disproportionate number of ideologically divided 5-4 decisions was an artifact of case selection and the Court’s docket. In an end-of-term wrap up for NRO, I noted that on many issues the Court was “closely divided, but not on traditional ideological lines.” I further explained:
Many commentators suggest that there was an unusual level of rancor and division in the Supreme Court this year. . . . Such claims, like the proclamations of a conservative ascendancy, are overstated.

Only one-in-four decisions was unanimous, and one-in-three was decided 5-4. This is hardly an unprecedented level of division, however. The level of unanimity was even lower during the 2004-05 session. That term the number of 5-4 decisions also reached 30 percent (as it did in the 2001-02 session). If anything was unprecedented it was the unusually high percentage of unanimous rulings (45 percent), and low number of 5-4 decisions (13 percent) during Chief Justice Roberts’s first term that inflated expectations. The 2005-06 unanimous rulings in cases challenging abortion restrictions and the Solomon Amendment were more unusual than the split decisions of the term just past.

This is not to deny the very real doctrinal divisions on the Court. The justices are closely split on many issues, ranging from criminal procedure and federalism to race and the status of unenumerated rights. SCOTUSBlog’s analysis of the “rate of dissension” — a measure of the number of dissents per case — found the 2006-07 term the most divided in recent years, barely edging out the 2001-02 term, 1.82 dissents per case to 1.81. This and other measures of the Court’s may be magnified by the Court’s ever-shrinking docket, however. Where once the High Court heard 100 cases a term, the justices only accepted 72 for 2006-07. As the Court grants fewer cases, those that remain on the docket may be more difficult, contentious, and closely fought on the margin. The oral statements from Justices Ginsburg and Breyer delivering dissents in high-profile cases may have been unusual, but they were decidedly mild compared to some of the fiery statements from prior years, as when the Court handed down its decisions in two abortion-related cases, Stenberg v. Carhart and Colorado v. Hill.

I was hardly alone in making these observations, or in predicting that OT2007 would look much different than OT2006. Some individual decisions may have been a surprise, such as the Indiana Voter ID case or Baze v. Rees, but the overall trend is much like many anticipated

In my opinion, much of what we are observing in OT2007 is precisely what we should have expected with the confirmation of Chief Justice Roberts and Justice Alito. Both are “conservative” justices, to be sure, but both are “minimalists” as well, eschewing sweeping statements of grand principle to focus on the narrow questions presented in each case. This approach also facilitates Chief Justice Roberts’ efforts to forge greater unanimity, as he did during his first term on the Court. Lithwick may think this is a “savvy” approach, and a “deflection,” of larger issues. In my view, however, it is a principled approach to judging that properly leads larger political and ideological disputes to resolution by the political process.

All this said, the degree of unanimity on the Court should not be overstated. There will still be bitter 5-4 decisions. We may see a few this week, perhaps even today. But there have always been such cases, and there always will be. But we should not expect ideological 5-4 splits to be the dominant story of the Roberts Court.

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Mrs. K for the Defense:

Marcy Tiffany, the wife of Judge Alex Kozinski, comes to her husbands defense. She notes many inaccuracies and distortions in media coverage about the contents of the Kozinski family server, and offers this bottom line: "The fact is, Alex is not into porn - he is into funny – and sometimes funny has a sexual character."

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Arrested for Cheering on Graduates at Graduation: This is a few days old, but I haven't seen it mentioned around our corner of the blogosphere:
  When school officials in Rock Hill, South Carolina, tell graduation ceremony crowds to hold their applause until the end, they mean it — Police arrested seven people after they were accused of loud cheering during the ceremonies.
  Six people at Fort Mill High School's graduation were charged Saturday and a seventh at the graduation for York Comprehensive High School was charged Friday with disorderly conduct, authorities said. Police said the seven yelled after students' names were called.
  I just thought they were going to escort me out," Jonathan Orr told The Herald of Rock Hill. "I had no idea they were going to put andcuffs on me and take me to jail."
  Orr, 21, spent two hours in jail after he was arrested when he yelled for his cousin at York's commencement at the Winthrop University Coliseum.
  Rock Hill police began patrolling commencements several years ago at the request of school districts who complained of increasing disruption. Those attending graduations are told they can be prosecuted for bad behavior and letters are sent home with students, said Rock Hill police spokesman Lt. Jerry Waldrop.
  I think this is a classic slippery slope problem. Imagine you let people cheer at graduation. It seems innocuous at first. People get used to it; it feels good. But the next thing you know, they'll start cheering at sporting events. Then they'll add in concerts. Then they'll cheer on their favorite contestants when watching American Idol. Before you know it, people will start expressing great joy all the time. Let's face it: Graduations are the gateway cheering event. I'm glad the cops are taking this seriously.

  Hat tip: Don't Tase Me, Bro.
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Sunday, June 15, 2008

Why No Fines for Cellphones Ringing in Movies and Concerts?: Over at the Chicago Faculty Blog, Saul Levmore asks an interesting question:
  Why do we see fines for littering but but not for cellphones ringing in the middle of movies and concerts? I'm afraid the question is better than any answer I have to offer. . . . [Consider a] fellow who "negligently" lets a paper bag and its contents fly out the window of his car. In that setting, we resort to fines rather than torts, though that must be in part because the littering is on public property. The cellphone wrong is often on private property, and littering is normally a misdemeanor on public property.
  [On the other hand, consider] smoking, where smoking is banned. . . . [F]ines for smoking are common both in public places and in private places subject to public regulation. Someone who smokes in a banned area, including a restaurant, in Chicago is subject to a $100 fine; the non-complying owner also faces a $100 fine for the first offense, and then $500 for a second offense.
  The problem is of course a trivial one as problems go. But it points, first, to the interesting set of behaviors that constitute negligence with no enforcement through tort law and, second, to the problems that generate political pressure for fines (publicly or privately stipulated), even though fines are less calibrated (to the level of injury) than are negligence suits.
  Having enjoyed going to the movies with Saul before (no ringing cellphones that I recall), I thought I would venture a guess. I think the main reason boils down to mens rea. Mens rea is Latin for "guilty mind," and is usually used in criminal law to mean the person's state of mind with respect to the underlying offense. It's a critical concept in criminal law, if not the critical concept, because an actor's state of mind with respect to a harm generally reflects his culpability. The basic idea is that intentional acts are most likely to justify punishment while negligent acts are much less likely to justify punishment.

  I suspect mens rea explains the different treatment here. Littering and public smoking are usually intentional acts. "I really need a cig," the smoker might say to himself. "Someone else can clean up," thinks the litterer. There may be exceptions, like someone who doesn't realize he is littering. But I suspect the exceptions are relative rare, and I would guess enforcement in that setting is low. On the whole, the conduct is intentional.

  On the other hand, a ringing cellphone is usually if not always an accident. I've never heard of someone intentionally ringing his cellphone in a movie or concert. The conduct we want to deter is the failure to exercise due care in making sure that your phone is off or set to vibrate just in case someone else decides to call you. The possible wrong is garden variety negligence, not some sort of intentional act, and is therefore considerably less culpable. So we let social norms take care of it, aided by the now-ubiquitous pre-show reminder to turn off cell phones that emphasize the norm and encourage people to follow it.

  UPDATE: As noted in the comment threads, it seems that New York City has such a ban, with a $50 fine.
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Sunday Song Lyric: Michael Rosman recommended Paul Simon's "Father and Daughter" for Father's Day, and I can't think of a better song for today. It begins:
If you leap awake
In the mirror of a bad dream
And for a fraction of a second
You can't remember where you are
Just open your window
And follow your memory upstream
To the meadow in the mountain
Where we counted every falling star

I believe the light that shines on you
Will shine on you forever
And though I can't guarantee
There's nothing scary hiding under your bed
I’m gonna stand guard
Like a postcard of a Golden Retriever
And never leave till I leave you
With a sweet dream in your head
The song, written for The Wild Thornberrys and was nominated for an Oscar. Here's the video and a live performance. Happy Father's Day.
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