The Cleveland Plain Dealerreports on the investigation into fraudulent and duplicate voter registrations submitted by ACORN, and notes that neither Democrats nor Republicans on the county's election board believes the bad registrations will compromise the election's results.
Even as Cuyahoga County digs deeper into possible fraud by a voter-registration group, election board members from both political parties maintain that any problems uncovered will not compromise the presidential election.
Board members say proof of voter-registration fraud does not mean illegal ballots will be cast on Nov. 4.
They said computer databases flag people who try to register multiple times, and Ohio voter identification laws exclude people from casting regular ballots when the board has not verified residency.
Still, the board is investigating suspicious registration cards submitted by ACORN, a national group that tries to register low- and moderate-income voters. . . .
The Cuyahoga County Republican Party has posted a news story about the local investigation of ACORN. But even Chairman Rob Frost, the second Republican member on the county's election board, said the potentially fraudulent registration cards do not jeopardize the fairness of the election.
"No, I don't have fear because we have a handle on problems caused by ACORN," he said.
Jennifer Rubin has some. I suspect that no matter how good a campaign McCain runs from now on, he's doomed unless the economic news suddenly takes a turn for the better.
Speaking of which, I have to give some credit to the powers-that-be. I remember in 1988, knowledgeable observers, but not the general public, were aware that the Savings and Loan crisis loomed, but no major figures in either party would talk about it, for fear of the political consequences. At least at the time, pundits suggested that putting off dealing with the crisis cost the nation tens of billions of dollars.
I don't know if it was even possible for Paulson et al. to try to cover up or paper over the extent of the crisis until after the elections, but, if it was, they certainly didn't try to do so. I'm not confident that the solutions at hand will work, at least without causing an inflationary backlash, but surely better to start dealing with the situation now than in January.
Finally, is there something fundamentally wrong with our banking system? Or is there something fundamentally wrong with the way we regulate (or don't regulate) financial institutions? Or perhaps the world's central banks are a lot less able to figure out how to manage the money supply than we think, sending false signals resulting in bubbles that in turn result in crashes? Or all three?
It seems that even in the U.S., we can't go more than a few years without a banking crisis of some type or other. Just within my memory, we had the crisis during the Reagan Administration of banks that made bad loans to bankrupt Third World countries, the S&L crisis, the threat of a financial system meltdown in 1998, and now the mother of all banking crises. And there have been other banking crises in other nations periodically as well, even in Japan, a country known for its conservatism (in a nonpolitical sense).
The Alaska legislature's report on Gov. Palin's "Troopergate" scandal was released yesterday. According to the Anchorage Daily News, Palin "abused her power in pushing for the firing of an Alaska state trooper who was once married to her sister, or by failing to prevent her husband Todd from doing so." From the story:
ranchflower's report contains four findings. The first concludes that Palin violated the state's executive branch ethics act, which says that "each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust." . . .
In the second finding, Branchflower says Monegan's refusal to fire Wooten was not the sole reason for his dismissal but that it was a "contributing factor." Still, he said, Palin's firing of Monegan was "a proper and lawful exercise" of the governor's authority.
The third finding says a workers compensation claim filed by Wooten was handled appropriately. Number four concludes that the attorney general's office failed to comply with Branchflower's Aug. 6 request for information about the case in the form of e-mails.
Branchflower writes that his investigation did not take into account late-arriving statements from several administration officials who, on the advice of Attorney General Talis Colberg, resisted subpoenas. They agreed to provide written statements this week, however, after a state judge upheld the subpoenas. Information from those statements was provided to the Legislative Council separately.
In a five-page response issued Friday night, Palin's attorney, Thomas Van Flein, accuses Branchflower and Democratic Sen. Hollis French, who oversaw the investigation, of using the probe in a partisan attempt to "smear the governor by innuendo."
During the brouhaha over some of my recent "Sarah Palin is an embarrassment" postings — I'm quite certain we set the Volokh Conspiracy record for number of comments on a single posting (419 at last count) — one dubious reader (who shall remain nameless - you can look it up easily enough if you're interested) asked "Are you a real law professor? which school?". Later on in the very same thread, a day or so later, the same reader wrote "I really want to know if Post is a real law prof, and if so, where." And he/she asked the identical question on a different comment thread attached to one of my other postings a couple of days later.
What's interesting about this is that the reader didn't, of course, really want to know where I teach law. If he/she really wanted to know that, he/she would have taken the 1.8 seconds it takes these days to answer questions like that; you go to Google, you type in David Post (or better - "David Post Bio"), and you find the answer to your question. (Not to mention that we have links on the side of the VC page directing you to our bios). No, he/she didn't want to know the answer to the question, he/she wanted everyone else to know that he/she was asking the question. Meta-communication, as it were — "by asking this question, I am signalling to you all that I think David Post is a dope."
There are many interesting things about this. It's one of the subtle ways that Google is transforming the way we talk to one another. I've noticed this same meta-communication thing — which should have its own name, I think — in my conversations with friends over the past several years. I participate in a very active, and quite marvelous, e-mail listserv with about 15 of my close friends from college. On the rare occasions we're together face-to-face, conversation will include questions like "What was the name of that retarded guy in To Kill A Mockingbird who was charged with the murder?", or "Was it Mondale? Bentsen? someone else? who came up with that "Where's the Beef" line in one of the debates a while back?", or "Was "I've Just Seen a Face" on Revolver or Rubber Soul?" We used to ask questions like that on the listserv, too — but no longer. They're only useful as meta-communication now — in the time it takes to write out the message, you can get the answer from the network, so why bother? Now that information-gathering is so easy, communication that once had an information-gathering function has to serve some other function, or it will disappear.
It's also interesting to ask whether, or in what circumstances, this might actually be an effective rhetorical device? Why might it be more effective to imply that David Post is a dope this way — hey, where does this guy teach, anyway? — than to just say it (hey, Prof. Post, you're a dope)? I suspect there's a tinge of elitism here — the reader was, presumably, hoping that the answer would be "Shitsville University Law School" so he/she could say — well, what do you expect from such a dope. But you wouldn't think it would be effective in this context, where all of the other readers have the same 1.8 second task if they want to actually get an answer to the question.
Mind you, I don't think this is a bad development, or a good development - it's just an "is" development, the way things now are to which we are all necessarily adjusting.
[Can't even wait 1.8 seconds to find out the answer to the question? Click here.
Sixth Circuit Sides with Ohio SoS; Vacates Injunction:
Last night, the U.S. Court of Appeals for the Sixth Circuit, 2-1, vacated the district court's injunction requiring Ohio Secretary of State Jennifer Brunner to make efforts to verify voter registration information. The Columbus Dispatchreports:
The three-judge panel of the 6th U.S. Circuit Court of Appeals said Brunner is not required to provide county elections boards with the names of voters whose personal information does not match state motor-vehicle or federal Social Security records, as ordered Thursday by U.S. District Court Judge George C. Smith of Columbus.
Brunner had sought an emergency order delaying Smith's order, and the appeals court agreed with Brunner that federal law does not require her to provide the names and that the Nov. 4 election is too close for major policy changes.
The panel noted that the process of matching voter information with state and federal records has been in place since 2007, and that the details about mismatches are available to counties on individual voter records, even if not in one list. . . .
Judge Richard Allen Griffin dissented, saying the three-judge panel should not have acted so quickly and that Brunner's "lack of concern for the integrity of the elections process is astounding and deeply disturbing."
Ross Douthat summarizes my main reason for fearing what now looks like a near-certain Obama victory. And it has nothing to with with Bill Ayers, Jeremiah Wright, or any of Obama's other personal foibles or past associations. It certainly isn't based on any great love for John McCain, who I have many reservations about. For what it's worth, I like the idea of a black president, believe that Obama is an admirable person in many ways, and have doubts about McCain's temperament similar to those expressed by George Will. Nonetheless, I fear that the conjunction of an Obama victory, a strongly Democratic Congress, and a major economic crisis will produce a massive and difficult to reverse expansion of government:
[W]hile success is never final, some successes are more final than others. The election of Franklin Delano Roosevelt in 1932 gave birth to an administrative state that has never been rolled back, and seems unlikely be rolled back in my lifetime. So that was a pretty final victory, as political victories go. Or again, while Ronald Reagan's election in 1980 had less enduring consequences than FDR's, at the very least it put its stamp on thirty years of American history in a way that, say, the election of Jimmy Carter or George H.W. Bush did not. And the convergence of an economic crisis and complete Democratic control of Washington should alarm even those conservatives eager to wash their hands of the GOP. The best reason for even the most disaffected right-winger to root for a McCain victory is simple: To the extent that much of the progressive agenda is a program in search of a crisis to justify its implementation, an election that delivers a liberal candidate who's adored by the media to White House, gives him huge majorities in both houses of Congress, and presents him with a worldwide state of emergency in which to govern, has the potential to be not just another loss for conservatives, but a once-in-a-generation defeat.
We know from past history that economic crises are a major opportunity for expansion of government power. Robert Higgs' book Crisis and Leviathan is a good discussion of the basic dynamics. We also know that divided government tends to impede the growth of the state, while united government facilitates it. The combination of united government and a major economic crisis is likely to lead to a great expansion of government, just as it did on several previous occasions such as the 1930s. It only remains to add that Obama - and most of the rest of the Democratic Party - tend to be very pro-government ideologically. As far as I can tell, Obama proposes major expansions of government regulation and spending on almost every big domestic issue, and doesn't propose to retract government in any significant way, except on military intervention in Iraq. Obama's record in the Senate (where he was the 10th most liberal senator) and in the Illinois state legislature (where he was more liberal than 73% of his fellow Democrats) shows him to be a big government liberal, not a relative moderate like Bill Clinton during his presidency.
I say this not so much to rally support for McCain (whose candidacy I think is nearly dead anyway), as to outline my fears about what is likely to happen over the next four years. I understand, of course, that none of this is a problem for those who want a major expansion of government power or are at least indifferent to it. But I do think it should be of concern to those libertarians or small government conservatives who welcome an Obama victory. It should also matter to moderates and liberals who recognize that massive expansions of government power in a time of crisis provide major opportunities for abuses of power and interest group power grabs at the expense of the general public - both of which happened on a large scale during the Great Depression.
Obviously, nothing is certain. It could be that Obama's agenda will be derailed by a massive political blunder on his part or by some unexpected event. It could be that the Republicans will somehow come back strong in the 2010 midterm elections. It could be that the economy will recover very quickly, curtailing Obama's window of opportunity. I'm not certain that a major expansion of government will actually occur if Obama wins. But I do think it's a strong possibility - certainly a greater than even chance.
With the financial crisis we are facing, an Obama Presidency combined with a strongly Democratic Congress would be much worse than the situation we were previously facing. Thus, it makes more sense to avoid it, even if it means electing McCain and all the damage that will do.
To put the point differently, before the financial crisis, there was a realistic chance that electing Obama and a Democratic Congress would be Jimmy Carter in 1976 or Bill Clinton in 2000 [correction: presumably he means 1992 - IS] — presidencies that soon led to Ronald Reagan and Newt Gingrich. But with the financial crisis, there is a much greater chance that electing Obama and the congressional Democrats will be like electing FDR in 1932. Obama could use the emergency to transform the country in a very bad way. And, given the crisis and Obama's political skills, it is quite possible that the country would reelect him, even if he does badly — which, after all, is what happened when FDR was reelected during the New Deal in 1936. (In 1936, the unemployment rate was still 17 percent.)
I haven't made up my mind yet. After all, McCain really is awful. But that is the way I am leaning.
I’ve read Obama’s books, and they are first-rate. He is that rara avis, the politician who writes his own books. Imagine. He is also a lefty. I am not. I am a small-government conservative who clings tenaciously and old-fashionedly to the idea that one ought to have balanced budgets. On abortion, gay marriage, et al, I’m libertarian. I believe with my sage and epigrammatic friend P.J. O’Rourke that a government big enough to give you everything you want is also big enough to take it all away.
But having a first-class temperament and a first-class intellect, President Obama will (I pray, secularly) surely understand that traditional left-politics aren’t going to get us out of this pit we’ve dug for ourselves. If he raises taxes and throws up tariff walls and opens the coffers of the DNC to bribe-money from the special interest groups against whom he has (somewhat disingenuously) railed during the campaign trail, then he will almost certainly reap a whirlwind that will make Katrina look like a balmy summer zephyr.
Obama has in him—I think, despite his sometimes airy-fairy “We are the people we have been waiting for” silly rhetoric—the potential to be a good, perhaps even great leader. He is, it seems clear enough, what the historical moment seems to be calling for.
So, I wish him all the best. We are all in this together. Necessity is the mother of bipartisanship. And so, for the first time in my life, I’ll be pulling the Democratic lever in November. As the saying goes, God save the United States of America.
Why So Many Law Professors are Former High School Debaters:
Notre Dame [correction: University of North Dakota] lawprof Eric Johnson notes that many law professors seem to be former high school debaters and suggests that this may be a common phenomenon. For what it's worth, I'm a former high school debater myself (1 year of policy, 3 years of L-D). My anecdotal impression is that there is a high representation of ex-debaters not only among law professors but also among other social science and humanities scholars.
Why do so many former debaters end up in academia? For the most part, it's probably correlation rather than cause. Both debate and academia tend to attract highly intellectual people with an interest in politics, law and related subjects. But there may be a causal connection as well. Debate played an important role in making me comfortable with public speaking - which turned out to be very valuable in later years. And for reasons I discussed here, it also led me to work much harder in school, thereby rescuing my floundering academic record and enabling me to get into an elite college (without which I might never have made it to Yale Law School later). These experiences may be atypical. But I suspect they parallel those of at least some other debaters-turned-academics.
During many semesters, I have my students do an anonymous mid-semester survey that evaluates the strengths and weaknesses of the course. Sometimes, the mid-semester survey reveals weaknesses in my teaching methods that are important for me to recognize, even if unpleasant for me to read about.
The most interesting finding of my mid-semester surveys is not about my personal strengths and weaknesses, but those of law school textbooks. Unlike most standard student evaluation forms, my midsemester surveys allow students to give a separate rating for the textbook. Routinely, those ratings are far from flattering to the texts. Cynics might suggest that the textbooks' ratings are driven down by my own ratings. To that reasonable conjecture, I respond that the textbooks' scores are routinely a lot lower than those the students give to me. Even when I have an unusually bad semester, the textbooks usually do even worse.
Why do so many students dislike the textbooks? It's hard to know for sure. On my surveys, students have an opportunity to write comments explaining their ratings. The most common complaints in the comments about the textbooks are that they are either boring or inaccessible (i.e. - don't explain the material very well).
Two caveats apply. First, I have only done these surveys with respect to textbooks in constitutional law and property. It may be that textbooks in other fields are more popular with students. I am fairly confident, however, that the ratings do accurately reflect the two fields I teach in, since the books I use are routinely among the market leaders at elite law schools.
Second, while I don't believe that my ratings are driving down those of the books (because they are actually much higher than the books' scores), I can't rule out the possibility that part of the problem is rooted in the interaction between my teaching style and the textbooks' approach. Perhaps students like the textbooks more with professors who "teach to the book" to a greater extent than I do. Ultimately, I doubt that such factors account for more than a small fraction of my students' dissatisfaction with their textbooks. But it's hard to know for sure.
To readers with relevant expertise, I pose two questions:
1. Is it in fact true that law students dislike law school textbooks, or is my experience idiosyncratic?
2. If so, why is that? Are boredom and inaccessibility the real culprits? Or is something else at work?
Particularly welcome would be systematic evidence of student attitudes to law textbooks, such as from large-scale surveys or experiments. Anecdotal evidence is useful, too, of course. But it's often hard to tell if it's representative of a broader trend.
Conservatism, Anti-Intellectualism, and the Political Failures of the Republican Party:
Jonathan Adler links to David Brooks' op ed arguing that conservative politics has gotten too anti-intellectual. Some of Brooks' points, are I think, well-taken. It is true that Republican politicians often engage in crude intellectual-bashing and that some conservatives embrace ridiculous unscientific ideas, such as denial of evolution in favor of more extreme forms of creationism. Jonathan, in turn, rightly points out that aspects of conservatism - including free market economics - will always have limited appeal to intellectuals.
At the same time, it is far from clear that conservatives are suffering politically because they have lost the support of the more educated classes, as Brooks contends. To the contrary, survey data continue to show that Republican voters, on average, have higher education levels than Democrats do. For example, the 2004 National Election Study (data summarized in Table 7.4 here), show that 45% of college graduates self-identify as Republicans or Republican-leaning independents, as do 44% of those with "some" college education. By contrast, only 38% of high school graduates and 20% of those with only a grade school education identify as Republicans. Self-identified "strong Republicans" also have, on average, higher levels of political knowledge than self-identified "strong Democrats." I hasten to add that I do not believe that Republicans tend to be more educated and knowledgeable because education and knowledge necessarily lead people to embrace conservative ideas. The most likely explanation for the correlation between education, political knowledge, and Republican identification is simply that education and knowledge are also highly correlated with income. And we know from many studies, such as Andrew Gelman's excellent recent book, that income is a strong predictor of Republican identification and voting.
Nonetheless, it's hard to argue, as Brooks does, that the Republican Party is slipping because it appeals mostly to the ignorant and uneducated. The real reason for the party's recent electoral setbacks is that voters from a wide range of income classes blame it (with some justice) for the mishandling of the Iraq War, the poor condition of the economy, and other policy failures. Republican politicians who think that political impact of these failures can be offset by ramping up their attacks on intellectuals and "coastal elites" are probably mistaken. But so too are those who think that the party's problems can be solved by increasing its appeal to what Brooks calls "the educated class."
Did Monitoring Satellite Phones in the Middle East Violate the Fourth Amendment?:
Over at Balkinization, Marty Lederman has a post arguing that the recently-discovered monitoring of satellite phones in the Middle East violated the Fourth Amendment:
The leading — indeed, virtually the only — case on the question indicates that the E.O. 12333 requirement that the U.S.-person target of such overseas surveillance be an agent of a foreign power, is also a Fourth Amendment minimum. That court held that such surveillance of U.S. persons overseas can be done without a warrant only (i) when authorized by the President or the Attorney General; (ii) when conducted primarily for foreign intelligence purposes; and (iii) when targeted at foreign powers or their agents, including American citizens believed to be agents of a foreign power. See U.S. v. bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000).
Assuming that some or all of that holding is correct, then the NSA activity described by ABC News would appear to violate the Fourth Amendment, too, even if it did not violate FISA.
I think Marty is wrong, and that the monitoring probably did not violate the Fourth Amendment even if you accept the bin Laden case.
(1) First, it appears from news reports that most of the monitoring was of members of the military using military-provided phones, and that users were notified that the phones would be monitored. This monitoring was clearly constitutional, as the notice waived an expectation of privacy under O'Connor v. Ortega and no warrant would be required under Title III, a precondition to FISA's warrant requirement.
(2) Second, monitoring of individuals who were not U.S. citizens, permanent residents, or otherwise had strong connections to the U.S. would not implicate the Fourth Amendment under United States v. Verdugo-Urquidez.
(3) Ok, but what about any U.S. citizens who were monitored abroad who were not in the military and not agents of a foreign power? At this point, it's important to keep in mind that the monitoring was of satellite phones, phones that work by broadcasting signals directly to communications satellites. There are no cases on how the Fourth Amendment applies to monitoring of satellite phones, but there are a bunch on how the Fourth Amendment applies to cordless phones. Here's what I wrote on the issue in my computer crime casebook:
In the 1980s, telephone companies began selling cordless telephones to consumers. Cordless telephones work by broadcasting FM radio signals between the base of the phone and the handset. Each phone has two radio transmitters that work at the same time: the base transmits the incoming call to the handset, and the handset transmits the outgoing call to the base. Before the mid-1990s, cordless phones generally used analog FM signals that were easy to intercept. Government agents would occasionally listen in on the cordless telephone calls of suspects without a warrant by intercepting the signals using widely available FM radio scanners. In your view, should such surveillance be prohibited by Katz v. United States or permitted by Smith v. Maryland?
Courts relied on Smith v. Maryland to reject claims of Fourth Amendment protection in the contents of such cordless telephone calls. Because cordless phone intercepting devices merely pick up a signal that has been “broadcast over the radio waves to all who wish to overhear,” the interception was held not to violate any reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236, 1239-40 (6th Cir. 1995). See also Tyler v. Berodt, 877 F.2d 705, 707 (8th Cir. 1989); Price v. Turner, 260 F.3d 1144, 1149 (9th Cir. 2001). Courts reached the same result when the suspect was using a traditional landline telephone, and happened to be engaged in conversation with someone who was using a cordless phone. See United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995).
Although there are no cases on it, I think there's a decent argument that the same argument would apply to satellite phones. There are arguments against, to be sure — arguments that I am certain commenters will make in the comment threads. But the reasoning of those cases is pretty broad.
Anyway, for those reasons I think the monitoring here probably didn't violate the Fourth Amendment, even if we accept Judge Sand's opinion in the bin Laden case.
David Brooks' column today is a must read, particularly for us right-wing, would-be-intellectual types. A few excerpts:
Modern conservatism began as a movement of dissident intellectuals. . . . William F. Buckley famously said he’d rather be governed by the first 2,000 names in the Boston phone book than by the faculty of Harvard. But he didn’t believe those were the only two options. His entire life was a celebration of urbane values, sophistication and the rigorous and constant application of intellect.
Driven by a need to engage elite opinion, conservatives tried to build an intellectual counterestablishment with think tanks and magazines. They disdained the ideas of the liberal professoriate, but they did not disdain the idea of a cultivated mind. . . .
But over the past few decades, the Republican Party has driven away people who live in cities, in highly educated regions and on the coasts. This expulsion has had many causes. But the big one is this: Republican political tacticians decided to mobilize their coalition with a form of social class warfare. . . .
What had been a disdain for liberal intellectuals slipped into a disdain for the educated class as a whole. The liberals had coastal condescension, so the conservatives developed their own anti-elitism, with mirror-image categories and mirror-image resentments, but with the same corrosive effect. . . .
The political effects of this trend have been obvious. Republicans have alienated the highly educated regions — Silicon Valley, northern Virginia, the suburbs outside of New York, Philadelphia, Chicago and Raleigh-Durham. The West Coast and the Northeast are mostly gone.
The Republicans have alienated whole professions. Lawyers now donate to the Democratic Party over the Republican Party at 4-to-1 rates. With doctors, it’s 2-to-1. With tech executives, it’s 5-to-1. With investment bankers, it’s 2-to-1. It took talent for Republicans to lose the banking community. . . .
And so, politically, the G.O.P. is squeezed at both ends. The party is losing the working class by sins of omission — because it has not developed policies to address economic anxiety. It has lost the educated class by sins of commission — by telling members of that class to go away.
I think Brooks makes several important and valid points about conservative anti-intellectualism. Just think about how otherwise intelligent conservatives embrace unscientific critiques of evolutionary theory and celebrate (instead of simply excuse) Gov. Palin's lack of academic credentials. It may well be the case that the smartest and most educated political candidates may not make the best political leaders, but this hardly makes the lack of formal education or intellectual curiosity a qualification in itself.
I also think Brooks overlooks something quite important. Some of the central ideas in modern conservatism — such as the impossibility of central economic planning, the nature of spontaneous order, and the idea that longstanding social traditions embody vast stores of social learning — are inherently hostile to certain intellectual conceits, particularly the idea that if only the right people were in charge (the intellectuals themselves) most social problems could be solved. Further, most modern conservatives embrace an economic system — free-market capitalism — that does not reward intellectual achievement at the level many intellectuals would prefer. Thus, while conservatism does not need to be (and should not be) anti-intellectual, there may be a limit to the extent to which intellectuals, as a class, will embrace modern conservative ideas.
The Connecticut Supreme Court has just ruled that the state must recognize gay marriages, making it the third state (all by court decision) to do so. The Connecticut legislature had already created civil unions for same-sex couples, so the question in the case was whether there was any basis in the state constitution to refuse to call these legally equivalent relationships "marriages." It was very much the same issue in the California marriage decision from last May. I have not yet seen the Connecticut decision, and will have more to say later if it seems worthwhile.
Needless to say, the timing of the decision is awkward for gay-marriage supporters trying to fend off SSM bans on the November 4 ballot in Arizona, California, and Florida. Stoking resentment of judicial activism, the Connecticut Supreme Court has at the very least probably increased the likelihood that Prop 8 will pass in California.
UPDATE: Orin has a link to the opinions below. The basis for the decision -- that some heightened scrutiny (here, intermediate) applies to classifications based on sexual orientation, and that the limitation of marriage to opposite-sex couples can't meet the heightened standard -- is similar to part of the California court's rationale. Connecticut becomes the second state to apply heightened scrutiny to discrimination against gays, a significant development independent of the gay-marriage ruling.
Connecticut Supreme Court Finds Same Sex Marriage Right in State Constitution:
The vote was 4-3, with a majority opinion and three dissents. Howard Bashman has the links here. From the majority opinion:
We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.
The Speculation Economy:
In light of the recent news on Wall Street, I've been reading my colleague Larry Mitchell's new book, The Speculation Economy: How Finance Triumphed Over Industry (also available soon in paperback). It's about the creation of the modern corporation and the rise of the stock market in the late 19th and early 20th century. Mitchell argues that changes at the time made stock prices and finance a higher priority than the health of companies, creating the seeds of a speculation-based economy. Mitchell is more more inclined toward market intervention than most VC readers will be, but it's still an interesting read and certainly a timely one.
Assessing the legal claims in the campaign for California's Prop 8:
There certainly seems to have been a recent reversal of fortunes in the ballot fight over California's Proposition 8, which would eliminate marriage for gay couples in the state if voters approve it on November 4. Supporters of Prop 8 are now more than $10 million ahead in fundraising. And where polling through September showed Prop 8 losing by as much as 14%, it now shows Prop 8 ahead by 47% to 43%. Even this probably understates the true support for Prop 8 since past experience shows that polls are about 5-10% off in measuring support for gay-marriage bans.
What happened? Credit is being given to the TV ads running in support of Prop 8. The first of these ads, and the one containing the most substantive legal claims so far, is this one:
Rather than attacking gay marriage itself, the ad focuses on the asserted collateral effects of allowing gay couples to marry. It's not that gay marriage itself is so bad, or is some sort of threat to the institution of marriage, it's what it might lead to that's terrible. To support such fears, the ad relies on a law professor, Richard Peterson of Pepperdine, who lends an air of legitimacy to the claims. It is his assertions, and the legal basis for them, that I want to examine here.
"People sued over personal beliefs"
The notion that people will be sued simply for believing — or even for publicly saying — that SSM is wrong is completely unfounded. There is no statutory basis for such a suit at either the state or federal level. If there were, it would be plainly unconstitutional under the First Amendment.
The ad implies a somewhat different fear: that people who act of their "personal beliefs" opposing gay marriage will face lawsuits. The only support for this softer version of the claim given in the ad is a recent decision from the California Supreme Court, North Coast Women's Care Medical Group Inc. v. San Diego Superior Court, which held that state-licensed doctors may not refuse treatment based on their religious objections to providing that treatment (in this particular case, to a lesbian seeking assisted reproduction). Whatever one thinks of the result in the case, or of the state statutory policy and constitutional principles underlying it, it had nothing to do with gay marriage. It was based on California's Unruh Civil Rights Act, which prohibits discrimination in public accommodations and services on the basis of sexual orientation. That law long predates gay marriage and will survive after November 4 no matter the outcome of the Prop 8 fight. Whether gay couples can marry, the only issue on the ballot, has nothing to do with whether people may be sued for their personal beliefs, or whether they may be sued for acting on them in the provision of services to the public.
We have now had gay marriage in Massachusetts for more than four years. There are no cases in which people have been hauled into court solely for their personal opposition to it.
"Churches could lose their tax exemption"
There is no basis for believing that gay marriage will cause churches to lose their tax exemptions. Recall that in exchange for agreeing not to be directly involved in elections, and agreeing not to endorse candidates for public office, churches are exempt from state and federal property and income taxes. Donations to churches are also tax deductible. If churches want to engage in direct electioneering, they are free to do so — but they must give up these huge tax advantages.
But what does gay marriage have to do with any of this? The ad cites only an article by Robert Dekoven in the Gay & Lesbian Times. DeKoven, a law professor at California Western, warned that if religious denominations became too heavily involved in the campaign for Prop 8 (and in another proposition battle in California dealing with abortion) they might lose their "public subsidy" on the ground that they are using it for political rather than religious and charitable purposes. I'm not sure whether Dekoven is right about that as a matter of tax law. But I am sure that the issue will be resolved — if it is even investigated by state or federal tax authorities — by reference to long-standing policies and practices regarding religious institutions' involvement in political campaigns regardless of the underlying substantive issues involved in those campaigns. In short, the continuing tax-exempt status of churches involved heavily in ballot fights will be decided independently of whether gay couples can marry, and independently of whether Prop 8 passes or fails.
Again, after four years of experience in Massachusetts, no church has lost its tax exemption because of gay marriage.
"Gay marriage taught in public schools"
Of the three charges made by Professor Peterson in the ad, this is the most explosive and the most resonant with the history of anti-gay discourse. The mix of children and homosexuality is politically toxic, drawing on very widespread parental anxieties. The unstated fear is two-fold: that children will be recruited or lured ("taught") into homosexuality and that homosexuality is itself bad/immoral/unhealthy.
Leaving discussion of those fears for another day, is there anything to the idea that California's schools will have to "teach" gay marriage if Prop 8 fails? The ad relies on a provision of the California Education Code, §51933, which it quotes as mandating that "Instruction and materials shall teach respect for marriage." Presuming that teaching respect for marriage will mean teaching respect for all legal marriages, including same-sex ones, we have then the teaching of gay marriage to all of California's schoolchildren, presumably against the wishes of many parents.
But there are numerous problems with this conclusion. No school district in California is required to teach anything about marriage to any child. The requirement, along with other provisions that mandate an emphasis on abstinence and consultation with parents about sexual matters, comes into play only if the school district chooses to have age-appropriate instruction on "sexual health education." The ad doesn't mention that the provision also mandates the teaching of respect for "all committed relationships" in addition to marriage, which presumably includes respect for committed same-sex relationships. Thus, regardless of the outcome of Prop 8, schoolchildren may already be instructed on the worth of gay families under existing policy. Even if the school district elects to to teach sex ed, the requirement to teach "respect for marriage" is vague and spacious. A school district or teacher could simply inform students that marriage is good and valuable and leave it at that, without mentioning what sorts of couples can marry or how their right to marry came about. That hardly constitutes a state requirement to "teach gay marriage" in the schools.
That's not all. Even if a school district in California elected to teach schoolchildren that gay couples can marry, a fact they are likely to have learned anyway from living in the state, parents are entitled to have notice that sex ed instruction will occur and are entitled to withdraw their children from such classes. Cal. Educ. Code §51937-51939. Under §51938, "A parent or guardian of a pupil has the right to excuse
their child from all or part of comprehensive sexual health
education, HIV/AIDS prevention education, and assessments related to
that education . . . ." This serves the legislative view that "parents and guardians have the ultimate responsibility for
imparting values regarding human sexuality to their children." Cal. Educ. Code §51937.
Furthermore, private religious schools are completely exempt from the general state eduction requirement that schools not discriminate on the basis of sexual orientation. Cal. Educ. Code §220.5.
In short, whether or not gay marriage continues, and whether or not Prop 8 passes, individual school districts and parents will retain ultimate control over whether and what children are taught about gay relationships and marriages. If they fail to exercise that authority in conformity with their beliefs, that failure can hardly be blamed on gay couples who want to be married.
It's true, as alleged in a second ad produced by supporters of Prop 8, that schoolchildren in Massachusetts have been informed that gay couples are permitted to marry. The second ad, also narrated by Professor Peterson, cites a First Circuit case rejecting parents' First Amendment and substantive due process claims to an exemption from classroom instruction. Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). That may or may not be right as a matter of federal constitutional law, but the underlying issue is the narrow exemption provided in Massachusetts law relating to parental notice and exemption from classroom instruction on sex education. In contrast to California, Massachusetts does not provide as much local school district control and does not include the same exemptions for discussion of marriage.
So, unlike in Massachusetts, whether California's little princesses are taught in schools that they have a right to marry other little princesses (a specter tenderly raised in the second Prop 8 ad) depends in the final analysis on whether that's what their individual school districts and parents permit them to be taught. In some school districts, say San Francisco, parents probably won't mind such instruction. In others, say Bakersfield, they will. Pluralism, not gay-marriage propaganda, will reign if that's what parents demand.
The ads supporting Prop 8 have apparently been effective at persuading some Californians who might not otherwise object to same-sex marriage that their religious liberty and the upbringing of their children are in danger. The exploitation of these fears in the Prop 8 ads continues a pattern in which SSM opponents falsely assert that "gay marriage" has caused some erosion of religious and personal liberty based on legal claims that have little or nothing to do with gay marriage. I discussed a number of such false assertions in a post back in June. As with the similar claims made back then, the ones generating fear in the Prop 8 campaign now are at the very least unfounded or misleading, and at worst, they are outright false.
ACORN is aggressively seeking to sign up new voters here in Ohio. In the process, they are also submitting many false, duplicative, or fraudulent registration forms — and there's nothing they can do about it, ACORN claims.
The Association of Community Organizations for Reform Now, or ACORN, has turned in at least 65,000 cards to the Cuyahoga County Board of Elections in the last year. The board has investigated potentially fraudulent cards since August.
The group has faced similar inquiries in other large Ohio counties. And Nevada state authorities recently raided ACORN's Las Vegas headquarters searching for evidence of fraud, according to the Associated Press.
Local representatives of the organization told Cuyahoga board members that they don't have the resources to identify fraudulent cards turned in by paid canvassers who are told to register low- and moderate-income voters.
It can't be stopped? How about not paying canvassers based upon how many people they register? How about telling canvassers not to pressure people to register multiple times? How about telling canvassers not to offer bribes — cigarettes, booze, rides, etc. — in return for registration? Of course actual voter fraud is more important than registration fraud, but registered dead people do vote sometimes, and absentee voter fraud is facilitated by voter registration fraud.
Meanwhile, a federal court has ordered Secretary of State Jennifer Brunner to implement a system to verify voter registration information when it fails to match up in database checks, and Palestra.net's Tiffany Wilson wants to know how Brunner will combat potential voter fraud here in the Buckeye State.
UPDATE: The New York Post reports on one mean in Cleveland who registered 72 times:
"Sometimes, they come up and bribe me with a cigarette, or they'll give me a dollar to sign up," said Freddie Johnson, 19, who filled out 72 separate voter-registration cards over an 18-month period at the behest of the left-leaning Association of Community Organizations for Reform Now.
"The ACORN people are everywhere, looking to sign people up. I tell them I am already registered. The girl said, 'You are?' I say, 'Yup,' and then they say, 'Can you just sign up again?' " he said.
Johnson used the same information on all of his registration cards, and officials say they usually catch and toss out duplicate registrations. But the practice sparks fear that some multiple registrants could provide different information and vote more than once by absentee ballot.
Chicago's Adler Planetarium (no relation) was not happy to have its request for a $3 million congressional earmark to fund a projector derided by Senator John McCain.
The first planetarium in the Western hemisphere, the Adler, took exception to it being used as an illustration of government waste in comments made by Republican presidential candidate John McCain during the Oct. 7 presidential debate.
When expressing opposition to earmarks, McCain said: “While we were working to eliminate these pork barrel earmarks he [Senator Obama] voted for nearly $1 billion in pork barrel earmark projects. Including $3 million for an overhead projector at a planetarium in Chicago, Illinois. My friends, do we need to spend that kind of money?”
The Adler issued a statement to clarify that the Planetarium made an unsuccessful request to several legislators for federal support to replace the projector in the 78-year-old public facility’s Sky Theater. The projector had been replaced just once before, in 1969.
“The Adler’s Zeiss Mark VI projector – not an overhead projector – is the instrument that re-creates the night sky in a dome theater, the quintessential planetarium experience,” the organization said in a written statement. “The Adler’s projector is nearly 40 years old and is no longer supported with parts or service by the manufacturer. It is only the second planetarium projector in the Adler’s 78 years of operation.”
I fully agree that it is a bit dismissive to characterize this as a request for an "overhead projector," and the Adler Planetarium is a premier facility (and has a great name), but I still think it is fair to ask whether this is something the federal government should fund.
On I-77 just south of Cleveland there is a billboard with a drawing of Senator McCain, his name, and "2 Old" in big block letters. The billboard says it is sponsored by a "Neo Neo Inc." in New York. I tried to find out more about the ad and its sponsor online, but have not yet turned up much of anything.
An idea that emerged from random conversations: pick the neighborhoods in the U.S. with the highest foreclosure rates, and give buyers a substantial tax credit--say 20-30%--on the purchase price after a fixed period--say five years--in which they hold and maintain the property. You can add features to prevent damaging speculation, like requiring a substantial down payment.
The basic idea is that property in a lot of these neighborhoods is already cheap, but people are afraid to buy for fear that prices will decline another 20% to 30%, and even that the neighborhoods will become dangerous ghost towns as foreclosed residents move out and aren't replaced. Provide a cushion against further decline, buyers will swoop in, prices will stabilize, foreclosures will diminish (and short sales will increase), and pressure on the banking system will be reduced. If politically necessary, you can also add features to prevent windfall profits, like taxing any future profits on these properties as ordinary income.
I understand that the crisis now goes well beyond U.S. domestic mortgages, but surely stabilizing that market couldn't hurt.
Is ABC News Confused Over Scope of NSA Program?:
ABC News has — or at least tries to have -- a big gotcha on the Bush Adminsitration about NSA surveillance:
Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia. Intercept operators allege the NSA is listening to citizens' phone calls. The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination. . . . "These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.
In testimony before Congress, then-NSA director Gen. Michael Hayden, now director of the CIA, said private conversations of Americans are not intercepted. . . . Asked for comment about the ABC News report and accounts of intimate and private phone calls of military officers being passed around, a US intelligence official said "all employees of the US government" should expect that their telephone conversations could be monitored as part of an effort to safeguard security and "information assurance."
This is a noteworthy story. This particular monitoring hasn't been public before: As a commenter points out, it is probably the ECHELON program at work, or at least something close to it. And besides, how often do NSA analysts talk about their work?!? But it seems pretty clearly incorrect to say that this story suggests that Bush and the intelligence heads were lying about the Terrorist Surveillance Program the New York Times first reported on in 2005. The problem is that this appears to be a different monitoring program than the TSP.
Recall that the TSP was controversial largely because the government appeared to be violating FISA: It violated FISA because the NSA was collecting information inside the U.S. through U.S. switches. But this program appears to be based on satellite monitoring of satellite calls from the Middle East, which FISA did not attempt to regulate until the latest FISA Amendments Act of 2008. So while it's still an important story, the link to the TSP strikes me as really weak.
The McCain campaign is unleashing attacks on Obama's judgment and trustworthiness, in particular by highlighting his ties to Bill Ayers. At first, voters aren't go to pay attention to this, because it seems like a silly distraction when we have an economic crisis on hand. On second thought... well, there's a comment on Ann Althouse's blog that reflects my thinking:
So the theory is "nobody cares about scurrilous charges against Obama" because they're too busy looking at their 401k's fall through the floor.
I don't know if I buy it. The voters want someone who they can trust to manage getting us out of this mess. That's a character question. Neither McCain nor Obama are financial market experts. It comes down to whose judgment do you trust more.
However, I'm not sure the answer isn't still "Obama," despite his fibbing about Ayers. Because I'm not so sure the erratic, impulsive and vindictive McCain wouldn't be worse.
Unfortunately, neither candidate strikes me as the obvious "steady hand in an economic crisis" candidate. Is it too late too start a write-in campaign for Warren Buffett?
Several Alaska state representatives wen to the Alaska Supreme Court seeking to shut down the state legislature's investigation of the so-called Palin "troopergate" scandal. This means the legislature's investigative report will be released tomorrow. The Anchorage Daily Newsreports:
The state Supreme Court rejected an appeal by Texas-based Liberty Legal Institute and Anchorage attorney Kevin Clarkson, who filed the lawsuit on behalf of the Alaska Republican state legislators opposed to their colleagues' investigation.
The state legislators whose names appeared on the appeal attempting to stop the investigation are Wes Keller, Mike Kelly, Fred Dyson, Tom Wagoner, Carl Gatto and Bob Lynn.
Their lawyers argued that allowing the investigation to proceed would threaten the right under the Alaska Constitution to a "fair and just" investigation by the Legislature. They allege bias among the legislators who are leading the investigation, and that the Legislative Council lacks the authority to order the probe.
The court issued a short order, and an opinion is forthcoming
While I never thought the "troopergate" story made for much of a scandal, the aggressiveness with which some are trying to shut down an investigation would suggest otherwise. I suppose we'll see soon enough.
On Tuesday, the WSJ ran two articles by Jess Bravin examining the approach to judicial nominations likely to be taken by each of the major presidential candidates. The articles provide a good side-by-side comparison of the candidates.
On legal matters, including Supreme Court appointments, an Obama administration would likely be shaped by its leader's strong convictions on constitutional law. As in other areas, Sen. Obama's jurisprudence points to a change from the "strict constructionist" philosophy advocated by Republican presidential contenders from Richard Nixon to John McCain.
Precedents, text and other legal tools can provide a just outcome in "95% of the cases," Sen. Obama said before voting against confirming chief-justice nominee John Roberts. But for the "truly difficult" cases that remain, the "last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." . . .
"I appreciate the temptation on the part of Justice Scalia...to assume" that if the 18th century text is followed "without question or deviation...all good will flow," Sen. Obama writes in his book, "The Audacity of Hope." "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document."
As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School.
In judicial nominations, Sen. McCain is likely to rely on advice from the Republican legal establishment, which has helped pull the court firmly to the right in recent years. Backers say that as president, Sen. McCain would use his "gut instinct" to make the final cut among qualified candidates.
"He's going to count on his advisers, people like Ted Olson [the litigator who won the Bush v. Gore case], to tell him that the person has a good law background," says Sen. Kyl. Sen. McCain likely "will be looking more at the kind of character the individual has."
Possible candidates could include federal appeals judges Janice Rogers Brown, Brett Kavanaugh, Priscilla Owen and William Pryor, former judge J. Michael Luttig and Paul Clement, a former Bush administration solicitor general. . . .
Sen. McCain's emphatic pledge to name committed, closely vetted conservatives to the bench aimed to assuage worries among conservative intellectuals that, faced with an opposition Senate, Sen. McCain might compromise with Democrats on judicial nominations.
The stories also contain some other interesting tidbits. for instance, Bravin reports that Senator McCain has pair relatively little attention to judicial nominations in the past, even deferring to Arizona's other Senator on district court judgeships. Bravin also cites Douglas Kmiec, a former Romney advisor, as among those supporting/advising Obama on legal issues.
I've been thinking about co-conspirator Eric Posner's analogy (see chained post) in regard to the recent Treasury Dep't moves in the banking bailout:
It is now clear that Treasury will take a more aggressive approach. Not only will it buy commercial paper; it will buy equity in banks. . . . People call this process “restoring confidence” in the financial system; but it really just replaces one financial system (a more-or-less private one) with another (a government-run system). It’s as if a hurricane hit a city and the national guard took over food distribution. We don’t say that the government is restoring confidence in the private food distribution system; we say that it is operating the food distribution system, and will do so until the private system recovers on its own. (my emphases)
Is the food distribution analogy the right one here? There is a difference between buying equity in banks [or food distribution companies] and sending out the national guard to do our banking/food distribution work. Among other things, we (i.e., the Treasury) participates in the upside (if there is an upside) in the one and not in the other. And more to Eric's point: it is not quite as absurd to call the former a "confidence restoring" move. Warren Buffett's purchase of Goldman Sachs equity was widely seen (correctly, imho) as a move that could "restore confidence" in Goldman, because buying equity is very stupid if the firm is going into bankruptcy but very smart if the firm is going to recover. The Treasury plan is not exactly the same, I realize, but calling it a move that might "restore confidence" in the banks doesn't strike me as so terribly over-the-top.
I've been teaching copyright law for more than a decade, but I just noticed something most peculiar in the Copyright Act that I'm not sure has a parallel anywhere else in the US Code. Here's the background. Section 101 of the Copyright Act defines a "Work Made for Hire" as either
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a writ-ten instrument signed by them that the work shall be considered a work made for hire.
If something is a "work made for hire," the consequence is that the employer (under clause (1)), or the person commissioning the work (under (2)) is deemed to be the "author" of the work (and therefore owns all of the copyright in it).
It's a very important provision — hundreds of millions, maybe billions, of dollars worth of copyrighted work fall within its provisions every year — and every year I spend a couple of classes on it. What I never really focused on before is the paragraph that immediately follows the definitions quoted above:
"In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, nor the deletion of the words added by that amendment--
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations."
?? I don't think I've ever seen a provision like that before. Here (thanks to a number of colleagues on the Ipprofs list who illuminated this for me) is the backstory. For many years, people in the recording industry had advanced the position that sound recordings were covered on the list of works made for hire as "audiovisual works." At the same time, they were trying to get the statute amended to add "sound recordings" to the list in paragraph 2. In 1999, on the eve of recess, they were successful in sneaking in a provision to that effect to an omnibus communications reform bill. When Congress reconvened, a number of representatives changed their mind (some claiming that they hadn't noticed the 11th hour amendment), and the provision was deleted.
Here's where it gets interesting. The recording industy folks were worried that now they'd be even worse off than they had been before the amendment was passed — because a court might reasonably interpret passage of the amendment as evidence that Congress did not believe that sound recordings were already covered in paragraph (2). So they added the provision quoted above to reassure the RIAA that deletion of the amendment would just, hopefully, restore the status quo ante.
What strikes me as odd in all this is the following: Can Congress tell courts not to "consider" certain things that incontrovertibly did happen in the past when they construe a statute? That is, the provision Congress inserted says to courts, in effect: "When interpreting the work made for hire provisions, you must not take into account certain facts about the world, namely the fact that in 1999 we amended the statute, and that in 2000 we deleted the amendment." I'm no constitutional law specialist, but that looks, to me, like it is encroaching on a core judicial function — the function of statutory interpretation; not just telling courts what Congress thinks a statute means (which Congress does all the time, via statutory definitions and the like), but telling courts what tools of statutory construction they may or may not use when interpreting the statute.
Update: Notwithstanding some off-topic comments, there's a pretty interesting discussion going on in the comments here. Among other things, there are a couple of law review articles on the subject which I didn't know about, and which appear, on the face of it, to argue opposite sides of the question: Linda Jellum's article in UCLA Law Review seems to lean towards my position (the provision is of questionable constitutionality), while Nick Rosenkranz's paper in the Harvard Law Review seems to point in a different direction on the question. DavidP
The original TARP idea was to hold reverse auctions for mortgage-backed securities. The government would hold them to maturity or resell them. Whatever one thinks of this plan, it puts relatively little burden on government decisionmakers. However, one criticism of the plan was that government agents would not be able to set the price correctly, whether through the auction mechanism or in some other way, and therefore end up underpaying (in which case the plan would not work) or overpaying (enriching greedy investment bankers).
It is now clear that Treasury will take a more aggressive approach. Not only will it buy commercial paper; it will buy equity in banks. It may well be that liquidating the market in MBS’s would not have been adequate, and more aggressive measures are needed. But if one has doubts about the ability or incentives of government agents to price correctly MBS’s, then one ought to have even more doubts about the new agenda. To buy commercial paper, you need to distinguish among the various companies that offer it, and pay no more than its value, which requires a good knowledge of the balance sheet and operations of the seller, not to mention the market in which it operates and the health of the economy and financial system. Sure, it’s short-term and therefore safer than other forms of debt, but it still needs to be priced correctly in light of its risk. To buy equity, you need to make similar judgments. And to exercise one’s rights responsibly, one needs to monitor the company, its market, and the economy, and exercise any rights one has – in the case of equity, to control the operations of the company. Good luck!
As the financial system collapses, the banks are increasingly becoming ventriloquist’s dummies for the government. They remain as shells but the government calls the shots. In the case of the commercial paper market, the fiction is not even being maintained: firms borrow directly from the government. People call this process “restoring confidence” in the financial system; but it really just replaces one financial system (a more-or-less private one) with another (a government-run system). It’s as if a hurricane hit a city and the national guard took over food distribution. We don’t say that the government is restoring confidence in the private food distribution system; we say that it is operating the food distribution system, and will do so until the private system recovers on its own.
Here's Gov. Palin during the debate with Sen. Biden:
"Now you [Biden] said recently that higher taxes or asking for higher taxes or paying higher taxes is patriotic. In the middle class of America which is where Todd and I have been all of our lives, that's not patriotic. Patriotic is saying, government, you know, you're not always the solution. In fact, too often you're the problem so, government, lessen the tax burden and on our families and get out of the way and let the private sector and our families grow and thrive and prosper."
Well, you heard it here first, folks: I have uncovered incontrovertible evidence that Sarah Palin has received hundreds of thousands of dollars of tax revenue and converted them to her own personal use!! Where the hell else does she think her salary comes from?
It may be foolish, or unwise, or even unreasonable to suggest that people pay higher taxes; sometimes it surely is all of those. But it is really irresponsible, outrageous, and insulting to say that it's unpatriotic. I dislike paying my taxes as much as anyone, and I dislike the general propensity of the Democrats to spend more and to tax more. But paying taxes (along with voting) is one of the most patriotic things I do. I don't pay my taxes because I'd go to jail if I didn't; I pay my taxes because that is the price we pay to live in the society in which we live, and it's insulting to suggest that somehow I'm being snookered into acting unpatriotically. If the government has things on which it has to spend money, it is sheer Knucklehead Conservatism to say "we need to spend the money — for a war against our enemies, for example, or to pay the medical costs of our retirees — but we won't ask people to pay any taxes to fund it." And it's thoroughly irresponsible of a candidate for high office to suggest that paying taxes is unpatriotic. If McCain and Palin are elected — increasingly unlikely, but just suppose — let's just stop paying our taxes, OK? It would be the patriotic thing to do.
Whoa, folks ... this firestorm of comments is a little more than I bargained for. A couple of responses to the many, many points raised in the comments:
1. If you think I'm such a fool, YOU CAN STOP READING MY POSTS. That's the good thing about the VC - there's lots of other stuff for you to read and argue about.
2. The most interesting comments were those (from the more reasonable ones) suggesting that I mistook "unpatriotic" for "not patriotic." That's a pretty interesting point. To begin with, I would've thought they were, in fact, synonyms. Undressed is the same as not dressed. Unbearable is the same as not bearable. Unkind is the same as not kind. Unintelligent. Unfair. Unreasonable. At least, in most contexts, and most usages.
3. Having said that, I can see the counter-argument that many of you are making here; Palin's not saying "Biden is being unpatriotic", she's saying "Biden is wrong to suggest that paying taxes is patriotic." It's what we lawyers call a "fine" distinction - not irrelevant, I grant you, but, in my opinion, not central to what she was trying to communicate. Look at what she said:
"Patriotic is saying, government, you know, you're not always the solution. In fact, too often you're the problem so, government, lessen the tax burden and on our families and get out of the way and let the private sector and our families grow and thrive and prosper."
So let me get this straight. It's patriotic to say "lessen the tax burden," but it's not patriotic (oops!! I almost said "unpatriotic") to say "raise taxes to pay for the things you're buying." That's what she's saying, folks. Her words, not mine. Now, many of you seem to think that makes perfect sense, and shows that Gov. Palin understands many things that have eluded morons like me. You're perfectly entitled to your opinion. But I still don't get it. It still looks outrageous, over-simplified, and irresponsible, to me. And if that makes you want to call me names, see Point Number 1, above.
4. I know that Gov. Palin knows that her salary is funded by taxes. That was meant as irony. If you didn't catch that, I should've made it clearer.
Update 2. A few of you have tried the interesting strategy of actually reading what I wrote and thinking about it. Here's courtwatcher:
I'm convinced David P is correct here. Palin said:
"In the middle class of America which is where Todd and I have been all of our lives, that's not patriotic. Patriotic is saying, government, you know, you're not always the solution."
Try replacing "patriotic" with any of the words David suggests. In these cases, the context and usage make clear that in those cases, "unX" = "not X":
In the middle class of America which is where Todd and I have been all of our lives, that's not reasonable. Reasonable is saying, government, you know, you're not always the solution.
In the middle class of America which is where Todd and I have been all of our lives, that's not intelligent. Intelligent is saying, government, you know, you're not always the solution.
In all these cases, it's clear from the context and usage that "not X" means the same as the compound word "unX" would mean. (Go ahead and explain why this is wrong - all 300+ of you. :-) )
I can see situations in which "unX" would not mean "not X," and commenters have correctly identified some of them. But this isn't one of them, and certainly it isn't obviously one of them. This part of David's post is completely reasonable even if some here disagree with it. To say it's obviously "wrong" or a failure of logic is just incorrect. It's stunning to see how unwilling people are to even imagine that someone might have a different view.
I couldn't (and, I guess, I didn't) say it better myself.
Now, once again — you might disagree with my assessment that Palin's statement was outrageous, or that it is irresponsible for a candidate for public office to make it. That's entirely fair game, and I'm even (though many of you will not believe it) open to persuasion on that. But to all of you who called me some pretty nasty names for making such a foolish logical mistake, maybe you're the ones who need to take a deep breath and look at the text on the page and think about it. Apologies can be sent to me at David.Post@temple.edu :)
Is the Palin E-Mail Hack Indictment Legally Flawed?:Here's the indictment. And here's the potential problem with the indictment. In order to charge the case as a felony rather than a misdemeanor, the government needed to claim that the intrusion was committed to further criminal or tortious activity. The statute, 18 U.S.C. 1030, states that the intrusion is a felony if the intrusion "was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."
Oddly, though, the indictment doesn't exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was "in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section lO30(a)(2)" But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime. Otherwise the felony enhancement is meaningless, as every misdemeanor becomes a felony.
I'm not sure if the indictment is facially defective based on that. It might be, because it effectively doesn't say what crime the government is charging (in that the the government must show the unauthorized access and also the crime that the access is in furtherance of -- if you're the defendant, how to you defend yourself against an unnamed crime?). But if the government is trying to make this a felony on the theory that the intrusion was designed to further the crime of the intrusion, that strikes me as an extremely weak argument.
Is Arizona v. Gant the Sleeper Crim Pro Case of the Term?:
About a month ago, I started a long post on Arizona v. Gant, a Fourth Amendment case argued yesterday involving the search incident to arrest power. I never finished the post, in part because I wasn't sure if the Court would see Gant as easy error correction under Thornton or an opportunity for Justice Scalia to pick up his pro-defendant Thornton concurrence and run with it. If it turned out to be the former, then the case wasn't worth the time. Based on the fascinating oral argument transcript from yesterday, however, it looks like the latter may be the case.
There's a lot going on in Gant, and I can't do it justice here: I have to catch a train out of town shortly for the Jewish holiday. But I did want to flag the transcript and suggest it's worth a read: You don't often see the Supreme Court consider overruling a precedent to expand constitutional protection by replacing a bright-line rule with a standard. (Please note: If you are a fan of the popular meme of "our Supreme Court is filled with conservative activists who want to take away our rights," you may want to avoid this case to minimize uncomfortable cognitive dissonance.) Anyway, I hope to blog more about it in the future.
An important bankruptcy opinion just down from the 1st Circuit in In re Nosek. The issue in the case was the practice of the lender (Ameriquest), of crediting the debtor's payments under a chapter 13 plan to missed payments first before crediting them to currently due payments. This is Ameriquest's practice outside bankruptcy and it continued to do the same inside bankruptcy.
The debtor complained, arguing that this payment allocation system violated the bankruptcy code. The practical effect (simplified) of the allocation system was that it meant that the debtor's account never appeared to be current in Ameriquest's system. Nosek claimed that she was going to try to refinance her mortgage but was, or would have been unable to do so, because of Ameriquest's payment allocation system. She never actually submitted an application (in light of the fact that this was 2004 at the heyday of subprime refinance lending, she should probably be happy that she was unable to refinance!).
The bankruptcy court initially awarded Nosek $250,000 for pain and suffering from the experience under section 1322(b) of the bankruptcy code. On appeal the district court reversed, saying that for damages to be awarded the court would have to proceed under section 105. On remand, the banrkuptcy court again entered judgment for $250,000 for pain and suffering but then added $500,000 punitive damages against Ameriquest. The court relied on the holding that Ameriquest violated section 1322(b) as the predicate basis for the award of damages under section 105. The district court affirmed.
The 1st Circuit has now entered judgment reversing liability and thus the award of damages. This is a hugely important case, because as bankruptcies rise--especially for homeowners--the underlying practice in Nosek is likely to recur. Affirmance would have required lenders to change their payment posting policies in bankruptcy, either requiring them to adopt new rules that would apply equally both inside and outside bankruptcy or to have two different systems depending on whether a debtor is in bankruptcy. Obviously, affirmance of such huge damages would also have spawned a race to the courthouse to challenge Ameriquest's practices across the country and probably many other lenders that post payments differently from how the bankruptcy court wanted payments posted here. When I spoke at the Tidewater Bankruptcy Conference last January, we dedicated a good portion of our panel to a discussion of the bankruptcy court's holding in the case.
The court wrote:
Analyzing § 1322(b) with these background principles in mind, the bankruptcy court found that Ameriquest had violated the Bankruptcy Code by failing to adequately distinguish between Nosek's pre-petition arrearages and her ordinary post-petition mortgage payments. The court stated:
The system [Ameriquest] was using has design flaws that inevitably lead to a showing that [Nosek is] behind in her payments. It did not distinguish between pre- and post-petition obligations which contradicts with [sic] 11 U.S.C. § 1322(b) which provides for the curing of any default over the course of the plan, a plan which is binding on [Ameriquest]. . . .
With this language, the court implied that Ameriquest's accounting threatened Nosek's opportunity to cure her pre-petition default pursuant to § 1322(b) and the Plan. Ameriquest contests the bankruptcy court's conclusion that the company defied the text of § 1322(b). It argues that the language of § 1322(b) does not impose obligations on any party, let alone a lender. We agree. The plain language of § 1322(b), relied upon by the bankruptcy court to find a violation of the Code, does not impose any specific duties on a lender. It merely lists elements that a Chapter 13 debtor may include in her plan. Accordingly, there is no basis for concluding that Ameriquest violated the text of § 1322(b).
The court held that for there to be a violation of section 1322(b), the lender has to violate an express provision of the debtor's chapter 13 plan. That didn't happen here because neither the code nor Nosek's plan speaks to the issue of how payments should be posted to the debtor's account. So there was no violation of section 1322:
The Plan language says nothing about how Ameriquest must account for pre- and post-petition payments during the course of the repayment period if payments are short, late, or not made at all. Simply put, the terms of the Plan itself do not provide the specificity required to invoke the enforcement authority of § 105(a).
As the plaintiff alleging a violation of the Bankruptcy Code or a related court order, Nosek had the burden of establishing that her cure rights pursuant to § 1322(b) and the Plan were violated or at risk of being violated by Ameriquest's accounting practices. Yet the bankruptcy court concluded that Nosek had not shown any economic harm resulting from Ameriquest's accounting,
whether in the form of late fees, finance charges, or an improper notice of default. In addition, the court also rejected Nosek's claim that the Payment History she received prevented her from refinancing her loan. Addressing this issue in the context of Nosek's various state law claims, the bankruptcy court found that any damages based on Nosek's inability to refinance her loan on
more favorable terms "would be mere speculation." The court found that Nosek "did not provide a basis to award actual damages. No documents were offered as evidence of the proposed refinancing. No testimony was proffered refinancing was even offered; there was no evidence of the terms of a refinancing which [Nosek] could expect to receive."
Notwithstanding Nosek's failure to prove actual damages sufficient to sustain a Chapter 93A claim, the bankruptcy court concluded that Ameriquest's accounting practices violated Nosek's cure rights pursuant to § 1322(b) and her Chapter 13 Plan, providing a predicate for a damage award under § 105(a). In essence, the court found that Ameriquest's slowness in crediting Nosek's payments to the proper account and its failure to distinguish between pre- and post-petition payments constituted violations of the Bankruptcy Code and her Plan. This conclusion was erroneous. Although a debtor need not show proof of economic damages to establish that her cure rights have been violated, she
must at least establish that her right to cure the pre-petition default provided by the Chapter 13 plan has been impaired or threatened by the creditor's actions. Nosek's subjective fear of such impairment, based on a document prepared by Ameriquest for internal purposes only, and in the absence of any evidence that the company regarded her as in default on the basis of its accounting practices, does not suffice. Indeed, Ameriquest stated that its
internal records showed that Nosek was considered current in her payment history. The Payment History document, provided only to Nosek on her request and admittedly difficult to decipher, did not show to the contrary. Nosek offered no other documentation indicating that her cure rights were at risk.
The court concludes:
Notwithstanding these legal conclusions, we are not unsympathetic to Nosek's predicament as a debtor seeking to satisfy the terms of her Chapter 13 Plan and stave off foreclosure of her home. Her circumstances are all too common today.15 Given their prevalence, it is troubling that Ameriquest had not established a more efficient and accurate way of handling the accounting issues revealed by this case at the time of trial. We fully understand the bankruptcy court's concerns about the practices that it described.
Nevertheless, the bankruptcy court's legitimate concerns did not justify the remedy that it invoked. Nosek did not demonstrate here that Ameriquest's accounting practices caused her any economic harm or threatened her right to cure her pre-petition default. Morever, even if such a threat had been demonstrated by those practices, there was no language in Nosek's Plan, as it was confirmed, or in § 1322(b), that addressed how Ameriquest was to apply the payments it received from Nosek or from the trustee. Under such circumstances, the Plan would have to be amended to prescribe the accounting practices necessary to protect Nosek's right to cure before Ameriquest could be sanctioned for a violation of an order of the bankruptcy court. In the absence of such specificity, there was no violation of § 1322(b) or the Plan and
therefore no basis upon which to award Nosek damages under § 105(a). Because the bankruptcy court's judgment in the adversary proceeding is vacated, the order confirming Nosek's Third Amended Plan, which was based on the erroneous damages award, also must be vacated.
I had an error in the facts when I originally typed this. I meant to say that Nosek claimed that she was unable to refinance as a result of Ameriquest's actions, rather than that she was unable. So she was not rejected for a refi; in fact, she never actually applied. I've corrected the text.
The SNL skit on the bailout legislation was temporarily removed from the web so as to edit out potentially objectionable content as well as to protect Rep. Barney Frank, or so it seems from this report.
In an interview with Gold, the show's executive producer, Lorne Michaels, said the Sandlers were distraught but had not demanded the changes. He noted the "People who should be shot" line was deleted as was a reference to their "corrupt activities."
But a comparison of the two versions shows that actually a little more than that was cut. What also was excised was any mention of the involvement of Massachusetts' Rep. Frank in the Sandler subprime mess.
Frank is the influential chairman of the House Financial Services Committee and an ardent political protector of Fannie Mae and Freddie Mac, which participated in the subprime problem.
In the original skit Sandler addresses Frank, saying, "And thank you Congressman Frank as well as many Republicans for helping block Congressional oversight of our corrupt activities."
To which Frank replies enthusiastically, "Not at all!"
All that's gone in the new version, which Show Tracker has posted here.
I suppose the most charitable interpretation is that the dig against Rep. Frank had to go if SNL was to edit out any reference to the Sandler's "corrupt activities" — but why was this excised in the first place? As I noted in my prior post, the "people who should be shot" line was the only aspect of the skit potentially warranting any revision at all.
UPDATE: The New York Times TV Decoder blog reports:
Explaining the move, NBC said in a statement: “Upon review, we caught certain elements in the sketch that didn’t meet our standards.”
The couple had expressed their anger to Lorne Michaels, the executive producer of “SNL,” who told the Los Angeles Times that he did not realize the characters were real people until Monday. “When I spoke to them, I can assure you this: ‘They are very, very real,’” he said. “I think they were angry, I think distraught, I think they were not expecting to turn on the television and see that.”
He said the couple did not specifically request that changes be made to the video. Nonetheless, the graphic and a reference to “corrupt activities” were removed.
NBC yanked the video off its Web site sometime early Monday. It appears NBC acted because it feared a lawsuit from the Sandlers, who are prominent funders of such left-wing groups as Air America and MoveOn.org. While no legal threat was received from the couple, Mr. Sandler did tell the Associated Press the skit was "crap."
Apparently, NBC acted pre-emptively to appease the Sandlers. It explains that the sketch did not meet its "standards." It has now reinstated the missing sketch on its Web site, having removed the "people who should be shot" line as well as a reference to "allegations of corruption" against the couple.
Veteran Hollywood journalist Nikki Finke says "NBC surely could have handled this better." While broadly accepting its explanation, she notes that "today's action may or may not silence critics like conservative commentator Michelle Malkin."
In my view, NBC may have acted appropriately, but its hasty response to liberal outrage over the sketch is likely to have a chilling effect on the network's future satire of leading liberals -- especially if Barack Obama is elected president.
I am with Fund up until the last half of that last sentence. If this incident has any effect on NBC, I think it will a) cause the network to explain moves like this more promptly and thoroughly, and b) cause the show to be more reticent to make fun of those (like the Sandlers) who are not obvious "public figures." Once the Sandlers-should-be-shot angle arose, it seemed pretty clear that this, and not any political motivation, was the primary force behind NBC's actions.
[I]f market conditions continue to deteriorate, [Treasury] could make use of another tool at its disposal: investing directly in troubled companies.
Treasury has the power to directly inject capital into a failing firm by taking a significant equity stake. In an unusual statement issued Monday, the President’s Working Group on Financial Markets, noting that “conditions in the U.S. and global financial markets remain extremely strained,” said Treasury could “directly strengthen the balance sheet of individual institutions.”
The article, however, does not tell us where Treasury’s authority comes from. Thom Lambert asks, “What gives? Did the ultimately enacted bailout legislation permit the sort of direct investment Prof. Bebchuk advocated? Or does Treasury possess independent authority to purchase securities issued by ailing financial firms? Or is Treasury just exaggerating the scope of its authorization?” A good question: the main objection to the bill among critics was that it failed to give Treasury this authority, instead authorizing it buy up mortgage-related securities, a more indirect approach to the crisis.
Let’s look at the statute.
True, section 101(a)(1) seems to authorize Treasure merely “to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution….” But, as always, the work is done in the definitions. Look at section 3(9):
The term ‘‘troubled assets’’ means—
(A) residential or commercial mortgages and any securities, obligations, or other instruments that are based on or related to such mortgages, that in each case was originated or issued on or before March 14, 2008, the purchase of which the Secretary determines promotes financial market stability; and
(B) any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability, but only upon transmittal of such determination, in writing, to the appropriate committees of Congress.
Only section (A) refers to mortgage-related assets. Section (B) refers to any other financial instrument – more or less full stop. That would presumably include preferred stock issued by a distressed firm in return for a capital infusion from Treasury. It sounds odd to call the purchase of newly issued equity the purchase of a “troubled asset,” but there you go.
So while commentators were complaining that the bill did not give Treasury sufficient authority to make equity infusions, it did so right under their noses.
Closed-end mutual funds, which have a fixed number of shares and are traded on stock markets, have been absolutely clobbered by the turmoil in the financial markets. Not only have their underlying net asset values gone done, but many of them are trading at historically high discounts to net asset value. There are even some municipal bond funds that normally trade at premiums that are currently trading at 25% or so discounts (in part because they are leveraged, but still, a 25% discount on a fund that will likely eventually regress to its historical mean of a small premium leaves a lot of room for error).
I'm not a fortune teller, so I don't know whether this is a good time to invest or not. But I do know that if I owned an open-end fund, especially if I had a tax loss I could take, I'd be shopping around for a similar closed-end fund with a massive, historically unprecedented discount. For example, why own an open-end emerging markets income fund when you can own EDD at a 32% discount? (Disclosure: I don't own this fund.) Why own an open-end corporate bond fund when a couple dozen closed-end corporate bond funds are selling at >25% discounts? And so on.
Two good websites for closed-end funds: www.cefa.com and www.etfconnect.com.
Repeatedly calling me and everyone else in the United States "my friends" is extremely annoying. In part, it's just an irritating phrase. Beyond that, I'm not your friend. I don't know you, and, from what I know of you, I don't even really like you. Sorry to focus on such superficialities when the world economy is going to Hell, but you probably lost more votes with your constant repitition of "my friends" than from anything Obama said.
How Will Harvard and Stanford Grades Affect the Clerkship Market?:
The announcement that both Harvard and Stanford Law Schools are dropping letter grades and moving to a H/P/LP/F system raises a really interesting question: How will the switch impact the market for law clerks? Harvard and Stanford students are often major players for very competitive clerkships. How will the judges who are evaluating applicants respond to having less information about candidates from these top schools?
I think the the answer depends in large part on where the schools draw the cut offs. What percentage of students will get Honors? Will it be 30% or so, like at Yale? Or will it be only 10%? Or 20%? Put another way, will the line between H and P be like the old line between A and A-, or A- and B+, or something else?
I would think that where the line is drawn is going to have a major impact on the clerkship hiring process. Here's my thinking. When I was a student at Harvard in the mid-1990s, the common wisdom I heard was that a B+ average was usually needed to be competitive for district court clerkships; an A-/B+ average (that is, the midpoint between the two) was usually needed to be competitive for the less sought-after circuit court clerkships; and an A- average was needed to be competitive for the more prestigious circuits (like the DC Circuit). If you wanted to clerk for a feeder and be in the running for a Supreme Court clerkship, you needed between an A- and an A. Of course, actual results varied based on the judge and the candidate, sometimes a lot. But that was the rule of thumb I heard at the time.
Now let's assume that the "H" of "High" grade is given to only 10% of the class, making it roughly equivalent to a straight "A." Under this system, a lot of judges are going to have a hard time figuring out who to hire. Imagine a student with all A- grades under the old system. In the old days, that student would be interviewing with top judges. But under the new system, that student will have a transcript with all P's, exactly the same transcript as a total slacker who never went to class and went through the semester mostly drunk and high. If the only information judges have is who had a top 10% grade and who was in the rest of the class, they won't have the information they used to use to find clerks.
On the other hand, imagine that the H grade is given to the top third of the class, more like A- and A grades together, which I understand (based on what I have been told) is pretty much what happens at Yale. This is still hard for District Court judges, because they have no way of distinguishing a straight B- student (who wouldn't get a clerkship) from a straight B+ student (who would be in the running). But this would give most judges more information they need, because now they have at least some capacity to distinguish the kinds of students with grade ranges they are more likely to see.
At the same time, such a cutoff would make the clerkship process harder for the feeder Judges and Supreme Court Justices who are looking for the best students. They don't have any real way to distinguish the student who would have had all "A-" grades (good, but not a SCT clerk) from the the Sears Prize winner who was first in her class. The grades no longer tell them whether the candidate rocked law school or was just quite good, which is information that the feeder judges and Justices would want to have. All the Judges and Justices know is that students were consistently in the top third of the class. (This may in part be made up for with the "book awards" that the schools are planning; To the extent those book awards can tell the judges and Justices who the best students in the class are, that may be the new "A". I'm not sure.)
What will the impact of the change be? Assuming Stanford and Harvard adopt the Yale model, which seems likely to me, I suspect the real difference will be a slight shift in focus from grades to recommendations. If grades tell judges less, professors need to make up the gap. I suspect the new system will make impressing a connected professor who knows the judges and Justices an increasingly important part of the clerkship process. The recommendation from the connected professor will help tell the judges and Justices that the student with all or mostly "H" grades is really top law clerk material.
More broadly, I tentatively suspect that this shift will slightly favor Stanford over Harvard in the competition for top clerkships. Stanford is smaller, and the chances that a student will have a close relationship with a professor are greater than at Harvard. Harvard is large, and at least in the past has been infamously impersonal. Faculty enthusiasm for helping students has traditionally not been the school's forte; at least when I was there, the attitude was more than you were supposed to succeed on your own. Perhaps that has changed with Elena Kagan as Dean? I don't know. But in a wold in which personal relationships are the key to scoring a top clerkship, I would think the advantage goes to the smaller school with a better student/faculty ratio.
Anyway, those are some general thoughts. It's really hard to tell the specifics without knowing what the cutoffs are and how many "book prizes" will be awarded. It's possible that those lines will provide most of the information that grades provided, in which case you would expect the switch wouldn't make much difference as soon as judges adjust to it.
UPDATE: Stanford 1L Josh Patashnik writes in: "I thought I'd pass along what they've told us: That the 'honors' designation will be given to around 30-35 percent of students in each class, left to the professor's discretion within that range. Helpful to know."
This year's Ig Nobel Prizes have recently been announced. The Chemistry Prize winner one is perhaps my favorite among this year's selections:
Teenagers, do not take heed: Coca-Cola is an effective spermicide. Sharee A. Umpierre, Deborah Anderson and Joseph Hill mixed four different types of Coke with sperm (in test tubes, mind you), and found that Diet Coke is the most lethal sperm killer. No sperm was left standing after its wrath. New Coke wasn’t so deadly: it destroyed only 59 percent of sperm. Again, we can’ emphasize this enough: teenagers, don’t not try this in real life.
Liberal Democratic Massachusetts State Representative Pushes Legislation Restricting Eminent Domain:
The Boston Globe has an interesting article about liberal Democratic State Representative Martha "Marty" Walz, who is sponsoring legislation to restrict eminent domain that recently passed the Massachusetts House of Representatives and is now stuck in the state Senate:
State Representative Marty Walz says she only has to gaze out at the towers of luxury housing that occupy the area where a vibrant working-class neighborhood once stood to be convinced of the danger of unchecked government power to seize private property.It was 50 years ago that the city forced thousands of residents out of their homes in the old West End neighborhood to make way for the Charles River Park apartments that were touted as the kind of economic shot in the arm Boston needed to bring fresh vitality - and wealth - to its downtown residential base.
Walz, whose Back Bay-based district includes the West End, worries that such a thing could happen again, and her effort to rein in eminent domain powers has caused a tempest among municipal officials and development types.....
[N]othing in recent years has stirred the passions of those concerned about creeping government authority in this area quite like the Kelo ruling issued three years ago by the US Supreme Court.
In the Kelo case, brought by a New London, Conn., homeowner facing the loss of her house, the court upheld the right of the coastal Connecticut city to take the property as part of plans for a massive mixed-use private development. In a 5-to-4 decision, with the court's more liberal members in the majority, the justices ruled that job creation and an expansion of the city's tax base constituted a "public purpose" in keeping with the Constitution's idea of public use....
The issue defies easy ideological pigeon-holing. Although the losing challenge to the Connecticut land-taking was supported by the court's four most conservative members and was filed by a national libertarian legal rights firm, the NAACP filed a brief on behalf of the aggrieved homeowners.
Like the civil rights group, Walz, a liberal Democrat, finds herself in the company of strange political bedfellows on the issue, but she evinces no qualms about that. "Aren't liberals supposed to protect the politically powerless against the politically powerful?" she says.
Massachusetts is one of only 7 states that has failed to pass any new law limiting eminent domain in the aftermath of the Supreme Court's 2005 decision in Kelo v. City of New London. As I discuss in this article, many political liberals have joined libertarians and conservatives in opposing "economic development" and "blight" takings because such condemnations often target the poor and politically weak for the benefit of the wealthy and politically powerful (see also here and here). Since World War II, several million people (mostly poor and ethnic minorities) have been forcibly displaced by such takings.
Kelo has focused public attention on this issue and state governments have had to react to appease public opinion. Unfortunately, as I explain in more detail in this article, the majority of the new laws passed by 43 states impose few or no meaningful restraints on takings, and seem to be meant to appease public opinion without actually addressing the underlying problem.
Representative Walz's bill (text available here), seems to effectively ban takings for "economic development." However, at least in the text I have been able to find, It does not address the problem of "blight" takings. In Massachusetts law, as in many other states, "blight" is defined so broadly that almost any property can be declared blighted and condemned.
Still, Representative Walz's bill may be better than the status quo and is a useful example of a cross-ideological coalition in defense of property rights. As I explained in the last part of this paper, such coalitions are essential if we want property rights to be better protected in the long run. As Walz puts it, we all need to do more to " protect the politically powerless against the politically powerful."
Oral Argument in Herring v. United States:
The transcript is here. It was very engaging argument with two excellent advocates, Pam Karlan for Herring and Michael Dreeben for the United States, and the Justices were in top form. Karlan did her best in her opening argument, but Roberts, Alito, and Scalia were relentless. Mid-way through Dreeben's argument, it was looking like the case was over: The Justices were debating the best way to write the opinion to affirm. (When AMK starts asking what specific words the Court should or shouldn't use, it's usually a sign.) Pam had 8 minutes left for her rebuttal, but it was hard to get any traction by that point. Anyway, no major surprises on the merits: I thought the Justices focused on exactly the right issues. As I had suggested before, I think once the Justices really delve into the issues, it becomes a pretty clear win for the government.
Latest news is that the Fed will take over the commercial paper market. Big corporations raise funds by selling debt securities as well as borrowing from banks. But no one wants to buy these securities—“commercial paper”—because no one knows whether the corporations can pay them back. So big corporations like GE suddenly find themselves unable to obtain the funds that they need to meet payroll, make investments, and so forth. In steps the Fed. The Fed will buy up the commercial paper for the time being. If all goes well, the Fed will hold it to maturity or sell it if anyone ever decides to buy it, and the government will not lose any money. If all doesn’t go well, the Fed can wallpaper its offices with trillions of dollars of notes.
As David Zaring notes, the commercial paper market, worth $1.6 trillion, is even bigger than the $700 billion borrowing authority contemplated by the bailout bill. Yet no one seems to think that the Fed needs new statutory authority to risk trillions, rather than merely hundreds of billions, of dollars. Why not?
Section 13(3) of the Federal Reserve Act authorizes the Fed to lend money to businesses in “unusual and exigent circumstances.” This section was the same one that the Fed used for the AIG deal. There may be some uncertainty whether it is proper for the Fed to make unsecured loans to businesses (and apparently to avoid the appearance of doing so the Fed is lending to a new entity that will buy the commercial paper rather than buying the paper itself), though the statute appears to permit it. But section 13(3) would also permit the Fed to buy up mortgage-backed securities from firms. So the question is, if section 13(3) is the all-powerful authority for everything, why did the Fed bother with the bailout bill? As far as I can tell, the bailout bill was necessary because the Fed and Treasury put their heads together and decided that Treasury should buy the MBS’s, and for that, a statute was needed. But was it worth such hullabaloo to give Treasury authority that the Fed already had?
We are in the realm of psychology, maybe political psychology, not law, and not even economics. The Fed, and maybe Treasury, already have all the authority they need to take over the banking system—or I should say the functions that the banks and investment banks once served. It was important for the Fed and Treasury to get to the markets some signal that Congress backed them, but it really didn’t matter what exactly Congress authorized, as long as its authorization bore some relationship to whatever it was that the Fed and Treasury would eventually decide to do. After all, only Congress has the authority to raise money to pay back U.S. government debts, so it would be nice to know that Congress is more or less on board. On this view, the great debate about the bailout bill – what it did, and did not do, and what it should have done, or not done – entirely missed the point. Treasury and the Fed will decide how to address this financial crisis. A broad congressional endorsement is nice, but Congress had nothing of substance to contribute to policy. Other than the handouts to special interests, I will bet my portfolio of mortgage-backed securities that nothing in that statute will have any impact on how the financial crisis is addressed.
Federalist Society Lawyer's Convention:
This year's Federalist Society lawyer's convention is November 20-22, and the line-up looks interesting as always. In case you're wondering, four five VC bloggers (Eugene, Todd, David B, Jim, and Jonathan) will be speaking. Registration is available here.
The official theme of the Convention is "The People and the Judiciary." I believe they wanted to make the official theme either, "Wow, We Did it Again," or "We Are Seriously Screwed Now, Eh?", but they needed to print the pamphlets before November 4th.
Brutsche v. City of Kent:
Imagine the police execute a lawful warrant but cause more damage than they should have caused when executing the warrant. In particular, they used a battering ram to break down the door when (at least arguably) they didn't need to. The homeowner sues the police for the damage: What's the legal standard for determining the officers' liability? And on what theory can the civil action be brought?
You might think there are lots of cases on this, but there aren't: It actually arises only very rarely. Last week, the Washington Supreme Court became one of the relatively few courts to opine on the question in Brutsche v. City of Kent. The majority adopted the following rule:
We adopt Restatement (Second) of Torts § 214 and conclude that liability in trespass may arise if by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant and thereby damage the property, or by executing the warrant in a negligent manner and thereby damaging the property, law enforcement officers exceed the scope of their privilege to be on the land to execute a search warrant.
The majority concluded that under this standard, there was insufficient evidence for a jury to conclude that the officers were liable. As a result, the homeowners were not entitled to damages.
Justice Richard B. Sanders, one of the most libertarian state Supreme Court Justices (watch him address a CATO crowd on the police power here, Real Player required), wrote a very interesting dissent. Sanders argued that the damage to property should be a taking requiring just compensation under the Washington State Constitution. Sanders cites everything from CATO publications to our own Randy Barnett, and I suspect many VC readers will enjoy giving the opinion a read.
Is the reason for the shift "a television ad campaign that features footage of San Francisco Mayor Gavin Newsom proclaiming same-sex marriage is here to stay 'whether you like it or not'"? Or is there no real shift, given the margin of error and given the broader possibility of variation based on factors such as who tended to be at home when the pollsters called? In any case, this is just a reminder not to put too much stock in pre-election polls.
Last Saturday, SNL ran a funny skit about the passage of the bailout bill. It poked fun at the President, House Speaker Nancy Pelosi, Rep. Barney Frank, George Soros, and others. (Transcript and screenshots here.) Now the skit has vanished. (It used to be here.) It is the only skit from last week's show that is no longer available on SNL's website (or other sites at which SNL skits are available), and questions about the skit have apparently been removed from NBC message boards. It's also been pulled repeatedly from YouTube due to copyright concerns.
What's going on? Michelle Malkin suspects that NBC was subject to political or legal pressure, possibly from Herbert and Marion Sandler, a couple portrayed in the skit who owned a mortgage company that aggressively promoted subprime mortgages and was sold to Wachovia for over $20 billion in 2006. Even if the Sandlers objected (see also here), I see no reason for SNL to pull the skit. If, as Jeff Mapes suggests, it was pulled because the skit identified the Sandlers as "people who should be shot" in text along the bottom, that could be easily scrubbed. And if SNL pulled the skit for such reasons, why wouldn't they release an explanation? Perhaps one will be forthcoming.
UPDATE: Just to be clear, I do not think any reasonable person would view the skit as "inciting violence" against the Sandlers. But even if the brief appearance of one line of text could be viewed in such a fashion, it would be easy to remove without deleting the entire 6-7 minute skit.
SECOND UPDATE: According to this story, NBC edited the skit to take out the screen shot calling the Sandlers "people who should be shot."
"Is Professor" Versus "Is A Professor":
When describing a professor's academic position, it is common to say that the person "is professor" rather than "is a professor." That is, you might say, "John Doe is professor of chemistry" rather than "John Doe is a professor of chemistry."
I'm curious, why is that? We don't say, "Sarah is doctor," we say "Sarah is a doctor." We don't say, "Edward is accountant," we say "Edward is an accountant." Is the idea that academic titles are more formal, so we drop the article much as we would when describing a formal title (as in, "John G. Roberts is Chief Justice of the United States.")? Either way, it always sounds odd to my ear.
District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances:
The statute is 18 U.S.C. § 922(g)(3), which bans possession by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act." The case is U.S. v. Yancey (W.D. Wis. Oct. 3), and the relevant analysis is:
As this court noted recently, Heller stands only for the proposition that the District of Columbia cannot constitutionally ban handgun possession in the home for use in self-defense by persons not otherwise prohibited from gun possession. United States v. Kilgore, 2008 WL 4058020 (W.D. Wis. Aug. 26, 2008).
Heller did not address a state’s right to impose restrictions on handgun possession. Indeed, the Court said explicitly that its opinion was not intended to suggest that all gun laws and firearms restrictions are unconstitutional. Id., at 2816-17 ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ...["]). As this court held recently in affirming the constitutionality of 18 U.S.C. § 922(g)(1), which criminalizes firearm possession by felons, Heller did not make the firearm restrictions of 18 U.S.C. § 922(g) constitutionally suspect. Instead, this statute contains just the sort of longstanding prohibitions on firearm possession that Heller allowed. Kilgore, 2008 WL 4058020.
Since Heller was decided, no court has found the firearm restrictions in 18 U.S.C. § 922 to be unconstitutional, even under an individual rights interpretation of the Second Amendment. Instead, courts have repeatedly affirmed the constitutionality of the statute’s prohibition of firearm possession by felons, E.g., Kilgore, 2008 WL 4058020; United States v. Robinson, 2008 WL 2937742 (E.D. Wis. July 23, 2008); U.S. v. Brunson, 2008 WL 4180057 (4th Cir. Sept. 11, 2008); United States v. Irish, 2008 WL 2917818 (8th Cir. July 31, 2008); United States v. Gilbert, 2008 WL 2740453 (9th Cir. July 15, 2008)); persons convicted of domestic violence offenses (United States v. Booker, 2008 WL 3411793 (D. Maine Aug. 11, 2008); United States v. White, 2008 WL 3211298 (S.D. Ala. Aug. 6, 2008)); and illegal aliens (United States v. Boffil-Rivera, No. 08-20437(S.D. Fla. Aug. 12, 2008)). Although to my knowledge no court has confronted the provision defendant challenges, which prohibits firearm possession by an unlawful user of a controlled substance, the provision’s constitutionality is not suspect. Rather, it is another example of a longstanding prohibition on firearm possession that Heller permits.
If the government proves, as it has charged, that defendant is an unlawful user of a controlled substance and that he was in knowing possession of a firearm, a jury could find defendant guilty of violating 18 U.S.C. § 922(g)(3). Such a conviction would not violate the Second Amendment to the United States Constitution. Nothing in Heller restricts the federal government from criminalizing the possession of firearms by unlawful users of controlled substances.
The U.S. Court of Appeals for the D.C. Circuit today issued a brief opinion in Committee on the Judiciary v. Miers. The Judiciary Committee is seeking to obtain records and testimony from Harriet Miers and Joshua Bolten. Both Miers and Bolten asserted executive privilege, prompting a contempt order from the committee, which then filed suit to force the production of records and their testimony. The District Court held that Miers was required to testify before the committee, but could assert executive privilege in response to specific questions that seek privileged information, and also ordered both to produce non-privileged records sought by the committee. Today's D.C. Circuit opinion granted Miers' and Bolten's motion for a stay of the district court judgment pending appeal, and denied the motion for expedited briefing of the case. The per curiam opinion was issued on behalf of Judges Ginsburg and Randolph. Judge Tatel wrote a separate opinion "concurring in the disposition of the motions."
A number of newspapers noted that the major stock market indices closed at their lowest levels since 2004. What I think is more remarkable is what this means for 10-year trailing returns. As of yesterday's close, the S&P 500 increased by a paltry 6.25% over the last 10 years -- roughly a .45% return per year. (The Russell 2000 index did better, reflecting small cap stocks' outperformance of large caps over the last 10 years.) And what's really striking is that October of 1998 was a trough in the market, and the S&P 500 rose 50% in the following two years (before, of course, precipitously falling). The bottom line is that, over a 10-year period, you would have been better off investing your money in just about anything other than the stocks of major U.S. corporations.
Which One of These Is Not Like the Other:
(Apologies once again to readers for occupying the main space with this exchange. Feel free to skip if you're not following it.) In response to David's "analogy game" below, I'm just befuddled. As I explained earlier, Obama was making the point that he has personal relationships with other people who have views that he finds abhorrent, and that his personal relationship to them does not mean he agrees with their views. As an example, he picked his friend Senator Coburn, who has argued that abortion doctors should receive the death penalty.
In response, David points out that Obama could have pointed out his personal relationship with three people Obama never met: John Brown, who died in 1859; Justice Hugo Black, who died when Obama was a boy; or Timothy McVeigh. What does it tell you, David asks, that Obama did not choose Brown, McVeigh, or Black as examples of personal friends of his who have abhorrent views? Maybe I'm missing a trick question, but I'm guessing it tells you that he is not personal friends with them.
UPDATE: In his update below, David argues that Obama's comment is also objectionable because "it tells us that he simply didn't understand that his connection with Ayers was under attack not primarily because Ayers currently has radical views that one could, perhaps, analogize to Coburn's, but because unlike Coburn, Ayers was a terrorist who tried to kill innocent Americans, and he is not only proud of it, but feels he didn't do enough." But why does it tell us that Obama lacks that understanding? In my experience, sometimes politicians running for office do not come out and say things that would hurt them with voters. They try to put the best spin on things, presumably on the theory that it will help them win the race. Given that, it seems a bit odd to say that Obama's failure to volunteer an adverse point must mean that he doesn't understand it, and that his failure to understand it shows how out of the mainstream he is.
Let's play an analogy game. A debate moderator asks you about your relationship with unrepentant domestic terrorist Bill Ayers. The analogy you choose to draw with Ayers is:
(a) Justice Hugo Black, who joined a terrorist organization in his youth, but later contributed greatly to liberal reform;
(b) Timothy McVeigh, because he is another domestic terrorist who was proud of his actions;
(c) John Brown, another freedom fighter accused of being a terrorist for challenging an oppressive system with violence, but who was later rehabilitated; or
(d) Senator Tom Coburn, because his right-wing views on abortion are similarly offensive to Ayers' radicalism, and pointing out that you are willing to be friendly with the like Coburn shows that your coziness with Ayers doesn't mean that you endorse his views.
Obama chose "d". Surely that tells you something about where he's coming from (in particular, that he fails to understand that the reason that his relationship with Ayers is troubling to many is because of Ayers' lack of remorse for his terrorist past, not because he has views today that some would find radical), just as his choice of (a), (b), or (c), would have told you something about his perspective.
UPDATE: Orin writes that he doesn't understand my point, because Obama only knew one of these men, and he was trying to make a point about how he is friendly with people whose ideas he vehemently disagrees with. But that assumes that Obama had to respond the way he did. Obama could have chosen A, which would have meant acknowledging that Ayers had a terrorist past, he was aware of it, but thinks he has overcome it with good works. He could have chosen B, and added (if true) that he no longer speaks to Ayers because he found him to be unrepentant in private conversation and public statements. He could have chosen C, which implies that he agreed with Ayers' violent acts, because they were justified to stop the Vietnam War.
Instead, he chose (d), from which, contrary to Orin, we can surmise several things. It tells us that he tried to give a weaselly politician's answer, instead of directly telling people what he thinks of Ayers' past and present. (Not really surprising for a politician, however.) It tells us that he thinks that it's a sign of one's open-mindedness that one is willing to be friendly with colleague who has some rather harsh anti-abortion views, which is probably true of someone who travels in his circles, but would strike many people who are friendly with vehement pro-lifers as an odd conclusion to draw.
And most important, it tells us that he simply didn't understand that his connection with Ayers was under attack not primarily because Ayers currently has radical views that one could, perhaps, analogize to Coburn's in their "unmainstreamness," but because unlike Coburn, Ayers was a terrorist who tried to kill innocent Americans, and he is not only proud of it, but feels he didn't do enough. Some commenters have pointed out that in the elite liberal academic culture I've been referencing, violence on behalf of "revolutionary" goals is not only not shocking to many, it's often affirmatively romanticized, as with the ubiquitous Che t-shirts, and the inexplicable love affair many in the academy have with Fidel Castro. Again, it's not that Obama himself romanticizes such violence, but that he is a product of a culture in which being disturbed by a lack of remorse over the "revolutionary" violent actions of the Weathermen 30+ years later is just not on the cognitive map.
And commenter Jerry F. adds:
Now, perhaps Professor Kerr is right and, when Obama initially brought up Coburn, he meant only that he can be friends with people who have views that Obama strongly disagrees with. I suppose only Obama knows what he had in mind then. Assuming this was what Obama meant, however, he was completely missing the point, since commentators who expressed concern about his relationship with Ayers (for the most part) did not argue that he agreed with Ayers' most noxious views.
But I think that a more reasonable interpretation of Obama bringing up Coburn (regardless of what Obama may have said as an explanation after the fact) is that he finds Coburn to be more or less the equivalent of Ayers on the right. In any event, I don't see on what ground someone can argue that this interpretation is less reasonable than Professor Kerr's charitable interpretation. The truth, of course, would be that Coburn is, at most, *Obama's* equivalent on the right (assuming Coburn is the most conservative member of the Senate), not Ayers' equivalent on the right.
And Jerry F. (no, not my sock puppet!) adds, in response to Orin's (and some commenters') doubts that Obama didn't understand how toxic Ayers is:
Because if Obama had that understanding, he would have dumped Ayers years ago.
Is this really so hard for you people to understand? If Obama actually appreciated how normal people will respond to a Rev Wright or Bill Ayers, he would have got them out of his life before he started running for President. He would have "Sister Souljahed" both of them, rather than "that's not the Rev Wright I knew" and "Bill Ayers, he's just some guy down the street."
Think of how much damage to his campaign Obama could have avoided if he'd left Trinity two years ago. Think of all the lies and cover-ups Obama could have avoided if he'd totally separated himself from Ayers after getting elected to the US Senate. Why didn't he do that?
A Reply to David:
Sorry to turn this blog briefly into the Orin/David show, but here's a quick response to David B's reply below:
1) David B argues that his best evidence that Obama is a "product" of that culture is Obama's "failure to recognize the harm that his association with Ayers, and his much closer association with Rev. Wright, could do to his presidential ambitions." He writes: "These guys are mainstream figures in Hyde Park, and wouldn't raise many eyebrows in Cambridge or Morningside Heights, but they are toxic in most other parts of America."
I really don't get this argument. Barack Obama is the surprise Democratic nominee for President. (Recall that, a year ago, everyone thought Hillary would be the nominee.) Further, Obama now has a lead in the polls over his Republican rival with less than a month to go. If Obama actually made a calculation years ago about the impact of his connection with Ayers and Wright on his Presidential ambitions, as David imagines, isn't the best evidence that Obama was quite accurate in his calculation?
2) David next argues that " I think it's clear that Obama thought that pointing out that he is willing to be friendly with a colleague who vehemently opposes abortion shows him to be an especially open-minded, non-judgmental guy," and that anyone who thinks that being friends with someone who is pro-life is somehow notable is just out of the maintstream.
This argument misrepresents what Obama said. Obama did not point out Coburn because Coburn is pro-life. He pointed out Coburn because — in Obama's own words — Coburn "said that it might be appropriate to apply the death penalty to those who carried out abortions." In other words, Coburn didn't just express the pro-life position. Rather, he advocated executing doctors who provide them. It is that view that Obama sees as outside the mainstream, not the view that providing abortions should be a crime.
UPDATE: In his update below, David states, "Obama is neither the leftist caricature that some critics assert, [but] nor is he the postideological, nonpartisan advocate of change his campaign would like to portray." I agree. At the same time, I don't understand what that has to do with his connections to Wright and Ayers or his view of Coburn. It seem to me that there is a lot of room for liberal partisanship beyond the "intellectual culture" of New Haven or Cambridge.
Orin suggests that I'm "connecting Obama to radical views." Well, connecting is a bit ambiguous, but I did specify quite strongly (and sincerely) that I don't think that Obama shares the views of people like Ayers or Wright.
I do, as Orin says, think that Obama is the product of a particular (and, to most Americans) peculiar liberal culture, centered in elite universities (like Obama's alma maters, Columbia and Harvard) and university towns (like Hyde Park), where the typical American political spectrum is skewed. Individuals who would be considered fringe leftists according to the ordinary spectrum are considered more-or-less mainstream "progressives," while run-of-the-mill conservatives are considered to be fringe "reactionaries."
Orin fails to note the best evidence I've presented that Obama is a product of that culture: his failure to recognize the harm that his association with Ayers, and his much closer association with Rev. Wright, could do to his presidential ambitions. These guys are mainstream figures in Hyde Park, and wouldn't raise many eyebrows in Cambridge or Morningside Heights, but they are toxic in most other parts of America.
Orin says that Obama proved himself not to be a product of that culture because he treated conservatives at Harvard fairly. But there is no inconsistency between treating someone fairly, and thinking that his views are on the fringe; this just shows Obama is a decent person.
Indeed, the praise heaped on Obama for treating conservatives fairly, if anything, suggests that he accepted the prevailing view about conservatives, but nevertheless treated them fairly. If Obama had rejected the prevailing culture, it would have been unremarkable that he would not treat conservatives like pariahs. Could you imagine someone saying of an old-fashioned, working-class style liberal like Tip O'Neill, "he showed his openmindedness by treating Republicans with the same respect as he treated members of the Communist Party, USA?"
Orin and I can agree to disagree about the significance of Obama's analogizing of Ayers' past as a Communist domestic terrorist to Coburn's present as a vehemently anti-abortion Senator. But, putting Ayers aside for a moment, I think it's clear that Obama thought that pointing out that he is willing to be friendly with a colleague who vehemently opposes abortion shows him to be an especially open-minded, non-judgmental guy.
Here's what doesn't compute for me. Even though I strongly believe that abortion should be legal, it has never occurred to me that the fact that I am friendly with various people who think that abortion is murder and want to criminalize it is a sign of special tolerance on my part. Perhaps that's because I realize that this position is fairly widely held in the United States, often by people who are sincere, thoughtful, and a far cry from the intolerant fanatical theological zealots of many pro-choicer's imagination (just look at what some have assumed about Sarah Palin, solely because of her anti-abortion views). That Obama would publicly state on his own behalf that "some my (not-so-best) friends" vehemently oppose abortion--even if he weren't analogizing this particular friend to an unrepentant terrorist--suggests to me that he is, indeed, a product of an insular liberal intellectual culture. (And let's not forget the attitude toward rural, less educated American who "cling to guns and religion).
UPDATE: By the way, while some pro-Obama commenters seem to think I'm being horribly unfair to Obama, commenters on right-wing blogs that linked my previous posts seem to think I'm being much too charitable for not recognizing Obama as the radical red they think he is. Some pro-Obama commenters have asked what the point is of these posts, if I'm not demonstrating that Obama is some horrible pro-terrorist monster. Well, whoever said that I thought Obama was a horrible pro-terrorist monster? And since when is it against blogging ethics to try to draw a reasonably subtle (critical) portrait of a presidential candidate? Obama is neither the leftist caricature that some critics assert, nor is he the postideological, nonpartisan advocate of change his campaign would like to portray.
Obama and Liberal Culture -- A Response to David B:
In his post below, my co-blogger David Bernstein argues that Obama "is the product of a particular intellectual culture that finds the likes of Wright and Ayers to be no more objectionable, and likely less so, than the likes of Tom Coburn, or, perhaps, a Rush Limbaugh." I won't be voting for Obama in November, but I don't see the evidence that Obama is part of that "intellectual culture."
David offers two pieces of evidence in support of his claim. The first is that Obama went to Harvard Law School at a time when David went to Yale Law School, and in his experience Yale Law had such an intellectual culture. There are a bunch of problems with this argument, I think. The most obvious is that conservatives who worked with Obama at Harvard saw him as distinct from the "intellectual culture" that David describes. Unlike others, Obama gave conservatives a fair shake.
David uses the "fair shake" comment to effectively connect Obama to the fringe. He reasons that the comment shows that Obama was at a place where it was unusual to treat conservatives fairly. Thus, by implication, Obama is part of an intellectual culture that does not treat conservatives fairly. I think the more relevant point is that Obama himself stood out from that culture, though, not that he was a part of it.
Second, David notes that in distancing himself from Ayers, Obama pointed out that he was good friends with Tom Coburn. David construes that as effectively equating Ayers and Coburn. But I read Obama's comment very differently. In the first part of the answer, Obama distanced himself from Ayers. He then added one sentence about Coburn, which is this: "The fact is that I'm also friendly with Tom Coburn, one of the most conservative Republicans in the United States Senate, who, during his campaign, once said that it might be appropriate to apply the death penalty to those who carried out abortions."
Obama's sentence is inarticulate, because he does not say why this "fact" is relevant. If you read the entire quote in context, though, I think the most natural way to construe that comment is much more innocuous. Obama was just saying that a lot of people have taken crazy or disturbing views, and it makes no sense to assume from Obama's conections to that person that the person's crazy or disturbing views reflect Obama's values. He not only knows Tom Coburn, but he is actually a friend, and yet Coburn's comment in favor of killing abortion doctors doesn't somehow "rub off" on Obama. Similarly, the fact that he knows Ayers doesn't mean that Ayers' views "rub off," either. If you read the full answer to the question, I think you'll see that this is probably what he had in mind.
Like David, I think Obama is very liberal. My sense is that Obama is the most liberal major party candidate for President since George McGovern in 1972. Like David, I won't be voting for him. Still, I don't see the point of connecting Obama to radical views without evidence that Obama himself personally held them.
More on Obama as a Product of a Particular Liberal Culture:
On Saturday, I wrote that Obama's ties to Ayers and Wright, and his apparent lack of self-consciousness about these ties and how they might affect his political career, "suggest to me NOT that Obama agrees with their views, but that he is the product of a particular intellectual culture that finds the likes of Wright and Ayers to be no more objectionable, and likely less so, than the likes of Tom Coburn, or, perhaps, a Rush Limbaugh."
Some readers might be a bit mystified as to what I was getting at. Well, consider Obama's years at Harvard Law. I attended Yale Law School the same years that Obama attended Harvard, and I had friends at Harvard, so I have some idea about the general intellectual culture that the institution (which was not dissimilar to Yale's culture).
That culture considered extreme leftists (known as "progressives") to be within mainstream political discourse, but run-of-the-mill conservatives (known as "reactionaries") to be, at best, on the fringe. Consider that conservative lawyer and Obama Harvard Law classmate Brad Berenson praised Obama as president of the Harvard Law Review because "Whatever his politics, we felt he would give us a fair shake". Are there many places in America where mainstream conservatives like Berenson have had to worry about being treated fairly because of their politics, and where a "boss" will get praise simply for not treating them like pariahs? But Obama won support and praise simply for giving conservatives a "fair shake," with no question that people on the extreme left were entitled to such treatment.
Now consider Obama's answer when asked at a debate about Ayers:
"George, but this is an example of what I'm talking about. This is a guy who lives in my neighborhood, who's a professor of English in Chicago who I know and who I have not received some official endorsement from. He's not somebody who I exchange ideas from on a regular basis. And the notion that somehow as a consequence of me knowing somebody who engaged in detestable acts 40 years ago, when I was 8 years old, somehow reflects on me and my values doesn't make much sense, George. The fact is that I'm also friendly with Tom Coburn, one of the most conservative Republicans in the United States Senate, who, during his campaign, once said that it might be appropriate to apply the death penalty to those who carried out abortions."
So, it seems that in Obama's mind, he's an open-minded guy because he's as willing to be friends with a law-abiding conservative Republican senator as with an extreme leftist unrepentant former domestic terrorist--just as he was considered open-minded at Harvard for treating a mainstream conservative Berenson as a non-pariah. It is this attitude that is a reflection of the political culture of elite liberal east coast schools, and liberal univeristy ghettos such as Hyde Park, and is also reflected in Obama's infamous "clinging to guns and religion" remark.
Being in the academy myself, I know many people who share Obama's outlook, or who are even more left-wing. Many of them are fine individuals, write thoughtful and interesting scholarship, are a pleasure to engage with in conversation, and respect my work and my ideas, even if they think some of my views are rather loony. Like them, Obama may very well be a fine, thoughtful, individual, willing to engage with people and ideas despite his natural instinct to recoil. But that doesn't mean I'd want to be governed by them, or him, and Obama's 100% liberal voting record in the Senate is likely a far better indication of his underlying ideology than his willingness to be polite to Berenson and Coburn.
FURTHER UPDATE: No, commenters, I haven't enjoyed being governed by Bush, the Republican Congress, or the Democratic Congress, and I'm not looking forward to a McCain Administration, either. But there's a good reason that liberals are especially excited by the prospect of Obama winning--he will be the first president to come out of the post-1970s elite liberal university culture that dominates modern liberalism, for better or for worse. Since this culture is antithetical in many (though not all) ways to my own views, I don't see any reason to share this enthusiasm.
Unconstitutional Los Angeles Ban on Ritual Animal Sacrifice:
I hadn't known this until today, but L.A. apparently has an unconstitutional ban on animal sacrifice, in Municipal Code § 53.67:
(a) No person shall engage in, participate in, assist in, or perform animal sacrifice.
(b) No person shall own, keep, possess or have custody of any animal with the purpose or intention of using such animal for animal sacrifice.
(c) No person shall knowingly sell, offer to sell, give away or transfer any animal to another person who intends to use such animal for animal sacrifice.
(d) Nothing in this ordinance shall be construed to prohibit any person or establishment lawfully operating under the laws of this city and state from lawfully engaging in the slaughter or ritual slaughter of animals where the preparation or killing of such animals is primarily for food purposes.
(e) For the purpose of this section, the following words and phrases are defined as follows:
“Slaughter” means the killing of any animal for food purposes;
“Ritual slaughter” means the preparation and killing of any animal for food purposes in accordance with California Food and Agricultural Code Section 19501;
“Animal sacrifice” means the injuring or killing of any animal in any religious or cult ritual or as an offering to a deity, devil, demon or spirit, wherein the animal has not been injured or killed primarily for food purposes, regardless of whether all or any part of such animal is subsequently consumed.
This is impermissible under Church of Lukumi Babalu Aye v. City of Hialeah, since it expressly bans religious conduct precisely based on its religiosity. Lukumi also involved evidence that the city council was intentionally trying to go after a particular religion — Santeria — but that wasn't necessary to the analysis: If the statute on its face bans religious conduct based on its religiosity, it's presumptively unconstitutional, and even if that presumption can be rebutted in extraordinary cases, there's no reason to think that it would be here.
If the city had banned certain kinds of killings of animals without regard to the killings' religious nature, that wouldn't violate the Free Exercise Clause even if it ended up barring some religious rituals. But we're not dealing with such a religion-neutral ban here. (Whether applying such a religion-neutral ban to religious conduct would presumptively violate the California Constitution's religious freedom provision is still an open question in California.)
This is in the news, by the way, because of a ritual called kapparot, which is practiced by some Orthodox Jews:
Kapparot is a custom in which the sins of a person are symbolically transferred to a fowl. It is practiced by some Jews shortly before Yom Kippur. First, selections from Isaiah 11:9, Psalms 107:10, 14, and 17-21, and Job 33:23-24 are recited; then a rooster (for a male) or a hen (for a female) is held above the person's head and swung in a circle three times, while the following is spoken: "This is my exchange, my substitute, my atonement; this rooster (or hen) shall go to its death, but I shall go to a good, long life, and to peace." The hope is that the fowl, which is then donated to the poor for food, will take on any misfortune that might otherwise occur to the one who has taken part in the ritual, in punishment for his or her sins.
Apparently the fowl is at least sometimes slaughtered before being donated to the poor.
UPDATE: Here's another interesting poll, this one on opinions toward Congress:
Only half (49%) [of respondents to the poll] believe that the current Congress is better than individuals selected at random from the phone book. Thirty-three percent (33%) believe a randomly selected group of Americans could do a better job and 19% are not sure.
Are Male Bloggers in it For the Women? Revisiting the Blogosphere Gender Gap:
There has been a lot of debate over the issue of why there are so many more male political bloggers than female ones. Glenn Reynolds/Instapundit has his own explanation:
Men are genetically programmed to try to stand out through action, in the hopes of attracting women. It's true, of course that blogging is a relatively ineffective way of doing that — but so are many other ways this urge manifests itself, like extreme Star Trek fandom. The point is the genetically programmed urge, which isn't programmed into women in the same manner.
I don't doubt that men (at least heterosexual ones) have a strong genetic drive to attract the attention of women. I'm a bit more skeptical, however, of the claim that this explains the predominance of male political bloggers. Looking at the demographics of political blog readers some 72 percent to 80 percent of them are men themselves. Since political blogging reaches an overwhelmingly male audience, it probably isn't a very efficient way to attract women. It may not be quite as irrational a dating strategy as trying to attract women through "extreme Star Trek fandom," but it's probably less effective than checking out to Ladies' Night at the local bar. If you spend a lot of time blogging, you probably could have devoted that time to other activities where meeting women would be more likely.
What then explains the prevalence of male political bloggers? Many factors may be involved. But one crucial one is probably the fact that women generally have a lower average level of interest in politics than men. The gender gap in political blogging is just one of many manifestations of the broader gender gap in political engagement.
Numerous studies show that women on average pay less attention to politics and have lower levels of political knowledge than men do. I summarize some of the data in Part VI of this 2004 article. In the blog context, it is telling that men are the overwhelming majority of blog readers, as well as bloggers themselves. While it's at least superficially plausible to believe that male bloggers are trying to attract the attention of women, it's hard to argue that this is true of the readers.
Presumably, part of the gender gap is due to lingering effects of the traditional sexist view that politics is an exclusively "masculine" sphere. At the same time, however, it is striking that the gender gap in political knowledge has not diminished much over the last forty years despite the rise of feminism and other social changes that have weakened the grip of traditional sexism. Persistent sexism is surely a piece of the puzzle, but probably not the only piece.
The Dow Jones industrials skidded more than 800 points and fell below 10,000 for the first time in four years, while the credit markets remained under strain. Financial markets took a despairing view of the future Monday, seeing contagion in a credit crisis that threatens to cascade through economies globally despite government efforts to provide relief.
Investors around the world have come to the sobering realization that the Bush administration's $700 billion rescue plan won't work quickly to unfreeze the credit markets. Global banks, hobbled by wrong-way bets on mortgage securities, remain starved for cash as credit has dried up.
Industrious v. Cauley (E.D. Ky. Oct. 1), rejects yet another Second Amendment challenge to felon-in-possession laws -- a result that is correct under D.C. v. Heller, and also seems justified in this particular case on various procedural grounds that the court mentions. But at the end, the court says -- citing the D.C. Circuit decision that Heller affirmed, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), and that petitioner relied on more than he did on Heller --
Finally, the Court notes that the Parker decision concerned gun restriction laws and the unique legal status of the District of Columbia, as opposed to the status of “States.” See Parker, 478 F.3d at 406 (“The Second Amendment’s “character and aim” does not require that we treat the District as a State. The Amendment was drafted in response to the perceived threat to the “free[dom]” of the “State[s]” posed by a national standing army controlled by the federal government .... Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of “States” do not apply to citizens of the District.”). Parker does not assist Industrious in this § 2241 proceeding.
But the quote from Parker is from the dissent, not from the majority opinion. The majority expressly held that the Second Amendment did apply to citizens of the District. And more broadly, the majority's reasoning recognizing an individual right to possess guns was not limited to D.C. residents, or tied to "the unique legal status of the District of Columbia" -- it applied equally to federal laws affecting U.S. citizens throughout the country, as does the Heller decision, which affirmed the D.C. Circuit majority opinion. (Note that the Industrious case involved a conviction for violating a federal law.)
As I said, this doesn't affect the bottom line, given Heller's assertion that bans on felon possession of guns are constitutional, and given the apparent procedural barriers to Industrious's claim (I assume the district court is right about those). But it does show a pretty serious error in the district court's interpretation and citation of the Parker decision, and in the district court's understanding of current Second Amendment law.
Zak Moore notes the newest buzzword on college campuses in the context of Dartmouth's presidential search:
The first questioner, a student, opened with a question about sustainability. His concern the “future green leader of our Big Green.” The manner of questioning and pre-planned question was very trite, and someone humorously commented to me that “hearing ‘sustainability’ today is like hearing ‘proletariat’ when I went to school.”
BTW, Dartmouth alumni who would like to suggest names or criteria to guide our search can do so here. These comments are forwarded along to the trustees in due course and I know that I, for one, read them.
The Supreme Court opens the 2008-09 term today. SCOTUSBlog has details on today's Order List and oral arguments. For those who haven't read enough OT2008 previews yet (e.g, WP, NYT,Legal Times), here's the one I wrote for NRO.
President Bush will be in Cincinnati on Monday at a Federalist Society event on "The Presidency and the Courts" where he is scheduled to deliver an address. His speech will coincide with the opening of the Supreme Court's 2008-09 term. Other parts of the program include a speech by former Attorney General Edwin Meese, and panels featuring the likes of former SG Paul Clement, Ed Whelan, and Professor Michael Gerhardt of UNC, among many others. The event is sold out, but should be available by webcast here.
I am not sure how significant the President's speech will be — he seems to be a particularly lame duck at this point (unless he thinks the Supreme Court will give him a third term) — but the rest of the conference looks potentially interesting.
UPDATE: The text of the President's speech is here.
Ohio Secretary of State Must Accept Absentee Apps:
Last week, the Ohio Supreme Court unanimously issued a writ of mandamus enjoining Scretary of State Jennifer Brunner from refusing absentee ballot applications on which applicants failed to check an unnecessary check box. The per curiam order is here, CPD coverage here, and links-n-stuff here.
Why do many economists prefer nationalization (or some more modest version where government takes control of financial institutions) to the bailout approach? Under the bailout approach, Treasury purchases mortgage-related securities from banks in a reverse auction. Currently, these securities are not being traded even though they clearly are worth something (they give holders the right to a fraction of mortgage payments, which is worth some amount greater than zero unless homeowners will default immediately and their houses are worth nothing in foreclosure). It is a bit of a mystery why no one will buy or sell them; apparently, they are too hard to value and holders don’t want to dispose of them for minimal amounts because their price might rebound. So the toxic waste remains on their balance sheets, making it hard for outsiders to evaluate the solvency of financial institutions and thus reluctant to advance funds to them.
There seem to be two distinct objections to the bailout plan:
1. It’s inefficient. If Treasury buys up an entire class of securities, it will buy them from solvent institutions as well as insolvent institutions. These solvent institutions don’t need help from the government; only the insolvent institutions do. It would make more sense for the government to lend money to the insolvent institutions, or allow them to fail and take on (some of) their liabilities, while leaving the solvent institutions alone. To be sure, if the government pays the “right” amount for the mortgages, it doesn’t subsidize the solvent institutions; but then it will also not help the insolvent institutions which will remain insolvent.
2. It’s unfair. If Treasury wants to help insolvent institutions, it will have to overpay for the securities. But the government gets nothing in return for this money, which will end up in the pockets of shareholders to the extent that it exceeds what is necessary to return these firms to solvency. Meanwhile, the solvent institutions that sell their securities at a high price get money for nothing, which ends up in the pockets of rich shareholders (of course, not all of them are rich).
Under the nationalization approach, the government gives money to institutions in return for equity, which makes the government a part- or full-owner of the institution. The government doesn’t buy up healthy institutions, just insolvent or near-insolvent institutions. If these institutions recover, the government makes a profit; if not, at least their shareholders get nothing. Meanwhile, as institutions become healthier, they will become more willing to trade their mortgage-related securities (why, exactly?) or at least they can hold them until maturity without failing. The nationalization approach is more efficient than the bailout because it focuses government resources on the institutions that need help. And it is fairer because taxpayers don’t subsidize healthy institutions and they obtain a return if failing institutions recover.
I have two questions about this argument. I haven’t found answers on the web or in the academic literature, and would grateful be if commenters would answer them or point me to relevant discussions.
1. In both cases, the degree of unfairness and inefficiency is a function of the competence of the government regulatory authorities, not the design of the law itself. If the government pays the correct prices under the bailout, it won’t end up subsidizing the healthy institutions; if the securities are worth more in the government’s hands, then taxpayers will make a profit when they mature. To be sure, the correct pricing won’t help rescue insolvent institutions; it will just make them easier to value; but the government retains the option to lend to these institutions, buy them, or help them in other ways, under its existing legal authority. So the bailout has to be accompanied by equity infusions, but no one has claimed that it wouldn’t be. If we can’t trust regulators to price securities correctly, that bodes ill for nationalization as well. The government has to price the equity correctly. The government has to supervise the firm competently. And it has to sell the firm eventually. If the government can’t determine the correct prices for purchasing mortgage-related securities, why do we think it can determine the correct prices when it sells off businesses? If it charges too little, it will end up transferring taxpayers’ money to a class of rich investors. Bottom line: do the critics of the bailout make assumptions about the competence of regulatory authorities that is inconsistent with their support for a nationalization plan?
2. As I noted above, the government already has authority to conduct rescues of failing financial institutions, which makes one think that the critics overstate the contrast between the bailout plan and the nationalization alternative. The bailout plan gives Treasury (new) authority to buy certain securities. Otherwise, the Fed would have to buy and dispose of these securities (under existing authority). I gather that Bernanke does not think the Fed should get into this business and thinks Treasury could handle the job more efficiently. The various descriptions of the nationalization plan that I have seen do not explain why existing statutory authority is inadequate for nationalization at some level. The Fed (and FDIC) already can (in effect) take over financial institutions, as we saw with AIG. Does the nationalization proposal boil down to the parallel claim that Treasury rather than the Fed should be handling this business? Otherwise, can’t nationalization or some version of it proceed alongside the bailout, with more AIG-like transactions? If so, what exactly are the nationalizers unhappy about? As far as I can tell, they don’t seem to oppose the bailout in principle, just the idea that it is the only thing to do. But no one claims that it is.
Perhaps, critics of the bailout plan are mainly distressed that the Bush administration has been insufficiently aggressive about nationalizing firms, and the whole question of what the statute says is a red herring. From what I can tell, it seems that the Fed and Treasury are taking an ad hoc approach. They want to buy up mortgage-related securities and take over firms, as circumstances dictate. Of course, they can’t nationalize in the old-fashion sense of coercively taking over solvent firms, but that course was not taken even in Sweden. In Sweden, it was not the case that all banks were nationalized; only those that accepted the government’s terms were, and not all did. These were the insolvent banks—the same type of institution that the Fed and the FDIC can take over under current law. Bottom line: I can’t tell whether the critics of the bailout statute are criticizing Congress for failing to compel regulators to take a more aggressive line; are criticizing regulators for failing to ask Congress for authority that they need in order to take the optimal course of action; or are criticizing regulators for failing to take the optimal course of action even though they already have authority to do so. I suspect that the last alternative is most likely, in which case they should leave off criticizing Congress, and stop criticizing Paulson and Bernanke for failing to ask for authority they don’t need, and tell us which institutions the Fed and the FDIC should take over now. If it is the first or second alternative, then the critics should point out the gaps in existing law and how they should be plugged.
A final point. Many opponents of the bailout compare it to bailing out the software industry after the Internet bubble popped or bailing out the steel industry or the automobile industry. If it’s unwise to bail out industries generally, what’s so special about finance?, they argue. But these same opponents have no problem with FDIC insurance or the Fed’s historical role of pumping liquidity into the financial system when lending freezes up. The argument that the financial industry should be unregulated was lost long ago, and the argument now is just about means.
The Wyoming chapter of the ACLU contends that the U.S. Forest Service has been harassing the annual gatherings of the "Rainbow Family" gatherings. Why would they do that? Haven't they read Judge Dave and the Rainbow People.