pageok
pageok
pageok

Saturday, January 17, 2009

SHOT Show Report:

I returned last night from the SHOT Show (Shooting, Hunting, and Outdoor Trades), in Orlando. SHOT is the annual trade show for the firearms industry, and it also attracts lots of exhibitors for hunting clothing, archery, law enforcement gear, knives, and so on. The mood is not unlike the mood at the 1993 SHOT Show, when the Clinton administration was taking power. Retailers, wholesalers, and manufacturers were happy that they had been making lots of money (because of concerns about the administration) but there was also great trepidation about the future.

One important difference is that the firearms industry is much better-organized and politically-informed than in 1993. The 1994 ban on so-called "assault weapons," plus the wave of anti-manufacturer lawsuits filed by mayors in 1998-99, has made the industry much more aware of its need to defend itself politically. The National Shooting Sports Foundation (NSSF) is a much, much more effective organization than it used to be.

Because the Show is held in January or February, and because it has such enormous needs for space, the Show tends to be held in one of the fairly small number of southerly cities which has a massive convention center. The people of Orlando were very, and the convention center was well-run. But the conventional wisdom is that the favorite for most people is Las Vegas, to which the Show will return in 2010.

The SHOT Show has a sort of Brigadoon feel to it. For several days, you're living in a small city (population 50,000+) where almost all your time is spent on a convention floor, or in receptions where you're talking with other gun people. One thing I like about Las Vegas is that whenever you step outside the convention, you're on (or near) the Strip, which is another zone of non-standard reality. If the Orlando Convention Center were next to Magic Kingdom, there would be a similar effect.

No-one knows for sure in exactly what way and how quickly the Obama administration will start its assault on Second Amendment rights, although there is little doubt that the assault is inevitable. (I mean "Second Amendment rights" in the normal sense of the word, not in the Obamaspeak by which banning handguns, banning lots of other guns, outlawing self-defense with a gun, outlawing concealed carry, and banning all guns stores within five miles of a school or park is consistent with the Second Amendment.)

There are some reports, from reliable journalists like as Michael Bane, that the effort to ban so-called "assault weapons" (that is, guns which differ cosmetically from other guns) may come very soon--partly as a tactic to appease hard-left activists who have been disappointed by some of Obama's appointments or what may be a relatively moderate approach to foreign policy. I'm not so sure that this would make political sense, since although gun control is popular with much of the MSM and the celebrity elite (e.g., Huffington Post), it doesn't strike me as a very important issue from the point of view of Daily Kos readers or under-35 activists.

Back in 1989-94, when there was the first federal push for an "assault weapon" ban, the ban advocates had to exempt the Ruger Mini-14 rifle, because it was so widely owned that a ban which encompassed it was politically impossible. Making things worse, from the pro-bna viewpoint, the AR-15 rifle and its many variants is probably the most popular rifle in the country today, with about five million owned, and new guns being purchased as fast as the factories can make them.

Accordingly, my guess is that any serious campaign for a new ban will not outlaw guns by name (unlike the 1994 ban), but will give the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) administrative authority to ban guns. This approach allows the Mini-14 and the AR-15 to be banned eventually, but saves Congress from having to take an explicit vote on outlawing those particular guns. The "assault weapon" bans which have been introduced in the last several Congresses have taken this approach.

Unless you're in the industry, or in media that covers the industry, you can't attend the SHOT Show. But if you're interested in what's going on there, outdoor writer Jim Shepherd has some good video of interviews with exhibitors of some of the interesting new products.

70 Comments

Does Holder’s “waterboarding is torture” comment implicitly commit him to prosecuting Bush administration officials?

Ever-hopeful observers say yes, but Holder’s statement that waterboarding is torture is hardly news; his soon-to-be boss has said the same thing. The chances of prosecution remain slim for diverse reasons.

1. Prosecutors have enormous discretion; this is a fixture of American law. Why didn’t the Justice Department prosecute Eliot Spitzer for consorting with a call girl? Because it didn’t feel like it, that’s why. The DOJ has more pressing concerns; it cares more about public corruption and money-laundering than interstate prostitution. This is a purely political judgment; if the public’s attitudes toward purchased sex changed today the way it did toward drugs in the 1970s and 1980s, we would see a similar reallocation of prosecutorial resources away from other things and toward prostitution. The Justice Department has no more obligation to prosecute waterboarders than the purchasers of sex.

2. But torture is a more serious crime than prostitution, isn’t it? The practical question is one of political seriousness, not moral seriousness, and both Obama and Holder have stated that they do not want to start a war with outgoing Republicans. They have good political reasons to avoid such a battle: it would disrupt political cooperation in areas that Obama cares about. Although many people believe that Obama has his priorities wrong, or that Obama can prosecute former Bush administration officials without interfering with ongoing political cooperation, the tea leaves so far suggest that Obama and Holder have more-or-less made up their minds to the contrary, though, like all good politicians, they do not yet want to tie their hands, in case political circumstances change and become more auspicious for prosecution.

3. There are other more mundane reasons that will allow Justice Department officials to persuade themselves not to investigate and/or prosecute that are not connected to politics. Prosecutors prosecute when they believe that they will win. To do otherwise is to waste public resources that could be used to put people in jail. Any experienced prosecutor would engage in the following train of reasoning (even putting aside the immunity provisions in the Military Commissions Act). The waterboarders themselves will testify that they received assurances from superiors and lawyers that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The superiors, up to Bush himself, will testify that lawyers assured them that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The lawyers will testify that they honestly believed that waterboarding is not torture—it caused “pain” but not “severe pain,” in the language of the statute—and that in any event statutes need to be interpreted narrowly to avoid a conflict with the president’s commander-in-chief powers. The jury will believe all these people and it will refuse to convict or, at best, it will hang, prolonging everyone’s agony. It might refuse to convict because it doesn’t believe that anyone has the requisite mens rea; because it doesn’t understand the law; or because (most likely) it just doesn’t believe that people should go to jail when they are trying to protect the nation and the law in question is confusing or ambiguous.

4. Back to politics. One can easily imagine the defense strategy, which will start by calling to the stand various Democratic senators and representatives who had been informed of the interrogation tactics and did not publicly object to them at the time. The testimony would surely be entertaining, as the politicians would be put in the impossible position of either admitting their moral complicity, which would make the entire trial look like a political show trial designed to punish Republicans but not Democrats, or looking like cowards who knew that the government was breaking the law but despite their oath to the Constitution were unwilling to do anything about it. Do Obama and Holder really want to put leaders of their own party in Congress in this position?

5. Finally, just what is Holder’s position on these issues? Has he really committed himself to anything? What about the all-important issue of executive power (I’ve added emphasis to certain sentences in the transcript excerpts below)?

LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.

HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.

FEINGOLD: … First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?

HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.

It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think — I'm not a constitutional scholar — but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.

FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?

HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.

It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.

HATCH: … Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?

HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.

OK. But back to our prior point, is the president's inherent authority under the Constitution — can that be limited by a statute?

HOLDER: The president's inherent authority. Well...

HATCH: Right.

HOLDER: ... it's...

HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.

HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.

There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...

HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that even a statute cannot vary.

HOLDER: Well, sure. The...

HATCH: Do you agree with that statement?

HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.

***

Holder himself can’t dispute the central premise of the Bush DOJ’s war-on-terror memos; at best, he can say that (in his words) “There’s always the tension in trying to decide where that balance is struck” when the president’s and Congress’ constitutional powers conflict, and that he would have struck it differently. A jury will convict on that basis?

Obama has no reason to “rule out” ordering criminal investigations and prosecutions of Bush administration officials. After all, some people may well have gone beyond the authority given to them and would be prosecuted even by the Bush administration. And a long and inconclusive investigation might be the best way to make the issue go away. But Obama has no legal obligation to prosecute and has overwhelmingly strong political reasons to make this issue die: not just to avoid short-term disruption of his political agenda, but to avoid the long-term damage to his own power as president. Will Holder try to stand in his way? Nothing in the transcript indicates that this is likely.

Comments

The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error:

Every year the Denver University Law Review publishes a Tenth Circuit Survey. In the forthcoming issue, the lead article is my examination of the Tenth Circuit's record on the Second Amendment issues. My conclusion:

The Tenth Circuit’s three-decade record of Second Amendment cases was a disgrace to the rule of law.

It was not a disgrace for wrong results. Almost all the decisions involved restrictions on narrow classes of especially dangerous weapons, or the prohibition of gun ownership for people who had proven themselves to be dangerous. Most of these results are presumptively valid under Heller, and most of the rest are in no worse than a gray zone of validity. Even pre-Heller, almost all the decisions could, as Judge Kelly observed in Parker [a 2004 case, in which a concurring opinion by Judge Kelly criticized the overbreadth of previous Tenth Circuit opinions on the Second Amendment], have been written on the narrow grounds of upholding legitimate, narrowly tailored restrictions on the Second Amendment.

The Tenth Circuit jurisprudence was not a disgrace because it adopted a militia-only theory of the Second Amendment....The Tenth Circuit’s jurisprudence cannot be called a disgrace because it ultimately ended up on the "4" side of a 5-4 Supreme Court decision. Although militia-only was a weaker theory, it was not a preposterous theory, or a theory bereft of any intellectual support.

The reason that the Tenth Circuit’s Second Amendment cases are a disgrace is that they barely had any reasoning. If you take everything that the Tenth Circuit wrote about the Second Amendment in Oakes (1977) and the 25 years of cases thereafter, the whole thing combined would not add up to a mediocre student Note in a secondary journal at an unaccredited law school.

Even the lowliest of student Notes must at least attempt to address the most important arguments on the other side. Especially when those contrary arguments come from the U.S. Supreme Court's explication of the very text that is at issue. Or from enactments of the Congress of the United States. Or from the Yale Law Journal, the Michigan Law Review, and or Larry Tribe, Akhil Amar, and Sanford Levinson. A mediocre student Note would not address all these sources, but it would address at least a couple. The Tenth Circuit spent a quarter century pretending there were no serious contrary authorities.

Nobody forced the Tenth Circuit to propound a grand theory of the Second Amendment without being able to make a serious intellectual defense of the theory. As Judge Kelly pointed out, almost all the Second Amendment cases that came to the Tenth Circuit could have been handled simply by addressing whether they involved legitimate restrictions on the right. It was a deliberate choice of the Tenth Circuit to reach out in Oakes, and to, in effect, declare that an entire Amendment to the Bill of Rights was a nullity, insofar as its protection of 99.9% of the American people.

It was the choice of the Tenth Circuit to continue to declare its Second Amendment decisions in the sweeping, nullificationist terms of Oakes. If the Circuit were determined to proceed on such a broad front, then the Circuit owed the American people a real justification of its actions. Not the pompous ipse dixit of Haney, Oakes, and the other cases, but a serious explanation. An explanation which addressed the best arguments on the other side.

That the Tenth Circuit never did so perhaps reflected a lack of intellectual self-confidence. The Tenth Circuit is a good example of Sanford Levinson’s observation that some elements of the legal elite refused to intellectually engage with the Second Amendment because of "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
VC contributors have often posted thoughtful comments which have improved my draft articles. I look forward to similar comments here.

41 Comments

Cape Wind Clears Hurdle:

Yesterday the Minerals Management Service (MMS) released its final Environmental Impact Statement (EIS) on the proposed Cape Wind offshore wind power development in Massachusetts, concluding that the project will have no significant negative environmental consequences. Release of the final EIS clears the way for the MMS to lease a portion of Nantucket Sound to Cape Wind, but it hardly makes the project a done deal. Cape Wind will still need to obtain additional permits and clear additional reviews from the Federal Aviation Administration and U.S. Coast Guard. Project opponents also promised litigation and other efforts to prevent the erection of wind turbines in the Sound. Senator Kennedy, for one, voiced his continued opposition and predicted any lease to Cape Wind would be overturned.

The Cape Wind experience illustrates how existing regulatory regimes are not particularly welcoming to alternative energy development. MMS offshore lease regulations, for instance, were designed for offshore oil and gas development, not windfarms. Cape Wind has had to face numerous regulatory reviews and overlapping requirements at various levels of government. If wind power and other alternative energy sources are to ever make a significant and cost-justified contribution to the nation's energy supply, the regulatory thicket will need to be cleared. The Bush Administration showed little interest in such an undertaking, despite its stated commitment to less onerous regulation and technological innovation. Perhaps the Obama Administration will recognize the need for innovation-enhancing regulatory reforms.

23 Comments

Inaugural Oratory:

It will be interesting to see whether Obama yields at all to the demands of the weather in his inaugural address. It's been brutally cold in Washington the last few days, and while it should warm up some by Tuesday, it's going to be pretty crisp out there, and many people in the crowd will be hoping that the new President moves things along in his speech. [Fortunately, for those standing in the cold, there are "Constitutional safeguards" ensuring that at least the portion of the events leading up to the swearing-in will proceed on schedule; the 20th Amendment provides that the new President's term in office begins exactly at noon, and and a result the swearing-in really has to be complete by then, or we don't have a President].

On the other hand, you know that Obama's instinct here is to rise to the occasion with a real blockbuster, and that it's hard to make a brief speech a blockbuster. In any event, I don't know about you, but I'm very much looking forward to seeing if he can pull off something special on Tuesday. I cannot for the life of me remember a single inaugural address since Kennedy's — and Kennedy's, whatever else went wrong with his presidency (and plenty did), was a speech that nobody who heard it, live or on TV, would ever forget. Nothing makes me happier about Obama's election than the fact that he has, single-handedly, brought serious oratory, and serious concern for our beloved English language, back into politics, from whence it has been missing for a long, long time.

Speaking of which: Though it takes up a good chunk of valuable Volokh Conspiracy real estate, I hope you won't mind if I reprint, in its entirety, possibly the best, and certainly the first truly great, inaugural address, Jefferson's in 1801. If you haven't read it, or haven't read it in a while, it makes for good reading. It's always refreshing to read Jefferson's prose, and there's an interesting story about this speech — actually many interesting stories, but I'll only recount one of them. The speech is best-remembered for the phrase

"We have called by different names brethren of the same principle. We are all Republicans. We are all Federalists."

It struck the perfect note, after an election campaign that was distinguished mostly by its bitterness and discord. [And it's a note, surely, that Obama will sound on Tuesday] What's interesting is that Jefferson's original hand-written version of the speech had it as:

"We are all republicans. We are all federalists."

The official printer inserted the initial capitals in the printed text, and they have survived in all subsequent printings. It actually makes a pretty big difference. He wasn't referring to the two emerging political "factions" (as they were then called), but to larger principles. With the initial caps, he's extending an olive branch to Adams and Hamilton and the other capital-F Federalists. But that's not quite what he had in mind. He didn't actually think that we were all capital-F Federalists - he certaintly didn't think that he was a capital-F Federalist. He was, though, a federalist.

Plus, I love the First Inaugural because it has one of the truly great Jeffersonian sentences:

Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.

FRIENDS AND FELLOW-CITIZENS,

Called upon to undertake the duties of the first executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here reassembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire. A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye &mdash when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes of this beloved country committed to the issue and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly, indeed, should I despair did not the presence of many whom I here see remind me that in the other high authorities provided by our Constitution I shall find resources of wisdom, of virtue, and of zeal on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.

During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all republicans, we are all federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world's best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.

Let us, then, with courage and confidence pursue our own federal and republican principles, our attachment to union and representative government. Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants tote thousandth and thousandth generation; entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed, indeed,and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter — with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens — a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.

About to enter, fellow-citizens, on the exercise of duties which comprehend everything dear and valuable to you, it is proper you should understand what I deem the essential principles of our Government, and consequently those which ought to shape its Administration. I will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations. Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace,commerce, and honest friendship with all nations, entangling alliances with none; the support of the State governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti republican tendencies; the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad; a jealous care of the right of election by the people — a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism; a well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense,that labor may be lightly burthened; the honest payment of our debts and sacred preservation of the public faith; encouragement of agriculture, and of commerce as its handmaid; the diffusion of information and arraignment of all abuses at the bar of the public reason; freedom of religion; freedom of the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected. These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.

I repair, then, fellow-citizens, to the post you have assigned me. With experience enough in subordinate offices to have seen the difficulties of this the greatest of all,I have learnt to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and the favor which bring him into it. Without pretensions to that high confidence you reposed in our first and greatest revolutionary character, whose preeminent services had entitled him to the first place in his country's love and destined for him the fairest page in the volume of faithful history, I ask so much confidence only as may give firmness and effect to the legal administration of your affairs. I shall often go wrong through defect of judgment. When right, shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts. The approbation implied by your suffrage is a great consolation to me for the past, and my future solicitude will be to retain the good opinion of those who have bestowed it in advance, to conciliate that of others by doing them all the good in my power, and to be instrumental to the happiness and freedom of all.

Relying, then, on the patronage of your good will, I advance with obedience to the work, ready to retire from it whenever you become sensible how much better choice it is in your power to make. And may that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.

Update: I couldn't resist commenting on Dr. T's reference to Kennedy's Inaugural Address as "blather." I'm not sure what to say about that, other than "I beg to differ."

Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans — born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this Nation has always been committed, and to which we are committed today at home and around the world. . . .

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty. This much we pledge—and more. . . .

So let us begin anew—remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear. But let us never fear to negotiate. . . .

In your hands, my fellow citizens, more than in mine, will rest the final success or failure of our course. Since this country was founded, each generation of Americans has been summoned to give testimony to its national loyalty. The graves of young Americans who answered the call to service surround the globe. Now the trumpet summons us again—not as a call to bear arms, though arms we need; not as a call to battle, though embattled we are— but a call to bear the burden of a long twilight struggle, year in and year out, "rejoicing in hope, patient in tribulation"—a struggle against the common enemies of man: tyranny, poverty, disease, and war itself. . . .

In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility—I welcome it. I do not believe that any of us would exchange places with any other people or any other generation. The energy, the faith, the devotion which we bring to this endeavor will light our country and all who serve it—and the glow from that fire can truly light the world.

And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country. My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man.

Blather? That's some pretty fine prose, if you ask me — and the fact that pretty much everyone who heard it in 1961 can still remember much of it - well, Dr. T., if you've written anything as good, I sure as hell would love to see it.

Update 2. And for those commenters who especially appreciated Jefferson's text -- hey, you should read my book! Seriously -- you'll like it.

56 Comments

The so-called "Lochner Court" and the Thirteenth Amendment: In his post yesterday on the new Thirteenth Amendment case Matter of Vinluan v. Doyle, Eugene noted that the decision rested on on "several Supreme Court cases from the first half of the 1900s, such as Pollock v. Williams (1944)." More significant for me is that it cited and quoted from Bailey v. Alabama (1911), a decision by the so-called Lochner Court reviving the Thirteenth Amendment. Since this was the Court that presided during the Progressive Era, I think we should call this the "Progressive Era Court," in the same way we refer to the "New Deal Court."

That Bailey was decided by the same Court as decided Lochner is significant in several respects. First, and most obviously, it belies the notion that the Court in this era was particularly insensitive to the weak. While the Civil Rights Revolution and the Second Reconstruction came decades later, when compared with the Reconstruction Era Court that gutted the Thirteenth and Fourteenth Amendments, culminating with Plessy v. Ferguson, in Bailey, the Progressive Era Court was ahead of its time.

The second reason why Bailey is significant is that it departed markedly from the method adopted in Plessy in which the public interest rationale for a state law was presumed. Indeed, the Plessy Court never even articulated the public interest the segregation statute was supposed to accomplish; and it examined the statute separating the races without any consideration of the context in which it was enacted to subordinate blacks to whites. In contrast, the Court in both Lochner and Bailey took a more "realistic" approach by considering the rationales and operations of these statutes in context, revealing a potentially illicit purpose. Here is the language quoted from Bailey in Vinluan
Compelling the performance of labor through legal coercion was at issue in three cases decided by the United States Supreme Court in the first half of the last century, Pollock v. Williams (322 US 4), Taylor v. Georgia (315 US 25), and Bailey v. Alabama (219 US 219). In all three cases, the Supreme Court struck down state laws which criminalized the failure to perform a contract for labor or services for which an advance had been received. The challenged statutes all made a worker's mere failure to perform services for which money had been obtained prima facie evidence of an intent to defraud. In the first of the three cases addressing this issue, Bailey v Alabama, the Supreme Court explained that while the ostensible purpose of the statute under review was to punish fraud, "its natural and inevitable effect is to expose to conviction for a crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt." Continuing its analysis, the Bailey Court stated that "[w]hat the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment. Without imputing any actual motive to oppress, we must consider the natural operation of the statute here in question . . . and it is apparent that it furnishes a convenient instrument for the coercion" forbidden by the Thirteenth Amendment (id. at 244).
Oh, and there is one more reason why Bailey is significant: The great Justice Oliver Wendell Holmes Jr., hero to so many Progressives back then and today still revered by progressives and judicial conservatives alike; whose dissent in Lochner and other Progressive Era cases earned him the title of "The Great Dissenter"; well, that Justice also dissented in Bailey v. Alabama, in favor of upholding states' rights:
Breach of a legal contract without excuse is wrong conduct, even if the contract is for labor, and if a state adds to civil liability a criminal liability to fine, it simply intensifies the legal motive for doing right; it does not make the laborer a slave. But if a fine may be imposed, imprisonment may be imposed in case of a failure to pay it. Nor does it matter if labor is added to the imprisonment. Imprisonment with hard labor is not stricken from the statute books. On the contrary, involuntary servitude as a punishment for crime is excepted from the prohibition of the Thirteenth Amendment in so many words. Also, the power of the states to make breach of contract a crime is not done away with by the abolition of slavery. But if breach of contract may be made a crime at all, it may be made a crime with all the consequences usually attached to crime. There is produced a sort of illusion if a contract to labor ends in compulsory labor in a prison. But compulsory work for no private master in a jail is not peonage. If work in a jail is not condemned in itself, without regard to what the conduct is it punishes, it may be made a consequence of any conduct that the state has power to punish at all. I do not blink the fact that the liability to imprisonment may work as a motive when a fine without it would not, and that it may induce the laborer to keep on when he would like to leave. But it does not strike me as an objection to a law that it is effective. If the contract is one that ought not to be made, prohibit it. But if it is a perfectly fair and proper contract, I can see no reason why the state should not throw its weight on the side of performance.
If someone took an advance payment for a long term contract for labor and breached, the statute in Bailey presumed an intention to defraud at the time the payment was received, thereby supplying the requisite mens rea for criminal punishment. This was one of the many inventive ways that Southern whites reimposed the incidents, if not the badges, of slavery on blacks after the Reconstruction Era Supreme Court defeated Congressional Republicans' efforts to secure civil rights, and ruthless Southern terrorism undermined the political resolve of the North to protect the rights of either the freedman or white Southern Republicans.

Unlike the majority, Holmes thought this statutory scheme was just fine:
But the import of the statute is supposed to be changed by the provision that a refusal to perform, coupled with a failure to return the money advanced, shall be prima facie evidence of fraudulent intent. I agree that if the statute created a conclusive presumption, it might be held to make a disguised change in the substantive law. But it only makes the conduct prima facie evidence -- a very different matter. Is it not evidence that a man had a fraudulent intent if he receives an advance upon a contract over night and leaves in the morning? I should have thought that it very plainly was. Of course, the statute is in general terms, and applies to a departure at any time without excuse or repayment, but that does no harm except on a tacit assumption that this law is not administered as it would be in New York, and that juries will act with prejudice against the laboring man. For prima facie evidence is only evidence, and as such may be held by the jury insufficient to make out guilt. This was decided by the Supreme Court of Alabama in this case, and we should be bound by their construction of the statute even if we thought it wrong. But I venture to add that I think it entirely right. This being so, I take it that a fair jury would acquit, if the only evidence were a departure after eleven months' work, and if it received no color from some special well known course of events. But the matter well may be left to a jury, because their experience as men of the world may teach them that, in certain conditions, it is so common for laborers to remain during a part of the season, receiving advances, and then to depart at the period of need, in the hope of greater wages at a neighboring plantation, that, when a laborer follows that course, there is a fair inference of fact that he intended it from the beginning. The Alabama statute, as construed by the state court and as we must take it, merely says, as a court might say, that the prosecution may go to the jury. This means, and means only, that the court cannot say, from its knowledge of the ordinary course of events, that the jury could not be justified by its knowledge in drawing the inference from the facts proved. In my opinion, the statute embodies little if anything more than what I should have told the jury was the law without it. The right of the state to regulate laws of evidence is admitted, and the statute does not go much beyond the common law. [citations omitted]
Who did Holmes think sat on juries in Alabama? All in a day's work for the Great Dissenter.

Related Posts (on one page):

  1. The so-called "Lochner Court" and the Thirteenth Amendment:
  2. The Thirteenth Amendment,

Friday, January 16, 2009

What Next, Sleep-Blogging?

An article about sleep-e-mailing, with thanks to GeekPress.

13 Comments

The Thirteenth Amendment,

involved in Matter of Vinluan v. Doyle (N.Y. App. Div. Jan. 13):

Ten nurses, all from the Republic of the Philippines, are under indictment in Suffolk County for the misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of a child, and endangering the welfare of a physically-disabled person. The prosecution of these individuals came in the aftermath of their simultaneous resignations from positions at a Long Island nursing home. [The amount of notice provided before the next scheduled shift for each nurse ranged from 8 to 72 hours.] The attorney who provided these nurses with legal advice was also indicted....

[T]he indictment handed down against the petitioners explicitly makes the nurses' conduct in resigning their positions a component of each of the crimes charged. Thus, the indictment places the nurses in the position of being required to remain in Sentosa's service after submitting their resignations, even if only for a relatively brief period of notice, or being subject to criminal sanction. Accordingly, the prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will. The imposition of such a limitation upon the nurses' ability to freely exercise their right to resign from the service of an employer who allegedly failed to fulfill the promises and commitments made to them is the antithesis of the free and voluntary system of labor envisioned by the framers of the Thirteenth Amendment. While we are, of course, mindful that protecting vulnerable children from harm is of enormous importance, the fact that the prosecution may serve a legitimate societal aim does not suspend the nurses' constitutional right to be free from involuntary service.

We are also cognizant of the fact that Thirteenth Amendment rights are not absolute, and that "not all situations in which labor is compelled ... by force of law" are unconstitutional. It has been recognized that the Thirteen Amendment "was not intended to apply to exceptional cases well established in the common law at the time" of its enactment. Thus, the Amendment has been held inapplicable to a narrow class of civic duties that have traditionally been enforced by means of imprisonment, including military service.... [A]n individual's right to be free from involuntary service may be limited in "exceptional cases, such as the service of a sailor ... the obligations of a child to its parents, or of an apprentice to his master, or the power of the legislature to make unlawful and punish criminally an abandonment by an employee of his post of labor in any extreme cases."

Guided by these principles, we conclude that this is not an exceptional case justifying a restriction of the petitioners' Thirteenth Amendment rights. The nurses in this case were engaged in private employment rather than the performance of public service. Moreover, while they possessed the education and training necessary to care for chronically ill patients, including children on ventilators, these skills are not so unique or specialized that they cannot be readily performed by other qualified nurses. Furthermore, although an employee's abandonment of his or her post in an "extreme case" may constitute an exceptional circumstance which warrants infringement upon the right to freely leave employment, the respondent District Attorney proffers no reason why this is an "extreme case." The nurses did not abandon their posts in the middle of their shifts. Rather, they resigned after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members.

Moreover, while the indictment alleges that the nurses collectively resigned "knowing that their resignations and the prior resignations at other Sentosa Care facilities would render it difficult for Avalon Gardens to find, in a timely manner, skilled replacement nurses for Avalon Gardens' pediatric patients," it is undisputed that coverage was indeed obtained, and no facts suggesting an imminent threat to the well being of the children have been alleged. Indeed, the fact that no children were deprived of nursing care played a large role in the Education Department's decision to clear the nurses of professional misconduct. Under these circumstances, we cannot conclude that this is such an "extreme case" that the State's interest in prosecuting the petitioners for misdemeanor offenses based upon the speculative possibility that the nurses' conduct could have harmed the pediatric patients at Avalon Gardens justifies abridging the nurses' Thirteenth Amendment rights by criminalizing their resignations from the service of their private employer.

Note that the Thirteenth Amendment argument rests heavily on several Supreme Court cases from the first half of the 1900s, such as Pollock v. Williams (1944). There's also a passage on lawyers' First Amendment rights to offer objectively reasonable advice to their clients: "it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice."

81 Comments

Lefty Bloggers say Obama is likely to succeed, and Bush was terrible. Righties disagree:

This week's National Journal poll of leading political bloggers finds that 95% of left-leaning bloggers think that Barack Obama is "somewhat" or "very" likely to succeed as President. Forty-one percent of right-leaning bloggers had that assessment. I rated him "somewhat unlikely," but I think it's very hard to predict. We'll have a much better idea after he's faced the test that Joe Biden predicted.

I wrote: "Many of his appointments suggest that he could exceed the pessimistic view of conservatives who saw him as a hard leftist. We know he can run a campaign; we don't yet know how well he can run the executive branch. He will be tested early by Iran, Venezuela and/or Russia; if he lets them bully him, he will become a one-term failure like Carter."

The poll also asked for an assessment of President Bush. The Left was unanimous in rating him "Terrible." Nobody on the Right rated him as "Great," and only 29% gave him "Good." The winning plurality was "Fair," with 41%.

I voted "Good," since I graded on a curve, and thought him much better than Bill Clinton or George H.W. Bush. My rationale: "No successful terrorist attacks since 9/11. Overall good performance on domestic policy, with the exception of spending out of control. His worst major idea (semi-amnesty for illegal aliens) was, fortunately, not enacted."

Just to be clear, I was referring to terrorist attacks in the U.S., since obviously there have been major attacks in London and Madrid, among other places. And I realize that one could classify certain solo crimes (e.g., the 2002 attack on the Los Angeles airport by an Egyptian) as terrorism. My point was that al Qaeda and its organized allies were thwarted from being able to attack again in the United States.

146 Comments

Shouting Fire in a Crowded Theater:

People often argue some speech is unprotected by analogizing to shouting fire in a crowded theater. (Here's the most recent example in the comments.)

But of course shouting fire in a crowded theater is often constitutionally protected. For instance, if there is a fire, shouting fire may be good. (It may sometimes not be good, if more people die in the panic than would have died from the fire if one had spoken more calmly -- but even then, I'm pretty sure that it would be constitutionally protected.)

And in fact the line from Justice Holmes in Schenck v. U.S. is "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." That "falsely" is what's doing the work, both in Justice Holmes's hypothetical, and in how such a false shout would be treated by First Amendment law today: Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic.

If the statement is not knowingly false, though, the analogy breaks down. The comment I linked to, for instance, was "Given the history and probabl[e] reactions, how is yelling 'Allahu Akbar' in a Jewish wedding different from yelling fire in a theater?" If the argument is that the speech may lead to violence against the speaker, then the arguer needs to discuss the heckler's veto cases. If the argument is that the speech will be misperceived as a terrorist attack, so the panic may indeed flow from a false perception on the listener's part, the arguer needs to explain why the perception is indeed likely and why the speech may be punished even though there's little reason to think that the speaker knew the speech would be thus misperceived (or even knew there was a high probability of misperception). If the argument is that the speech may be seen as threatening, the arguer has to explain why it passes the threshold required by the threat exception to the First Amendment. But a casual analogy to "shouting fire in a crowded theater" doesn't get us very far.

49 Comments

The Wall Street Journal editorial page argues today that the FISA opinion made public yesterday proves that Bush was right all along that the program was legal:
  Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.
  In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. . . . .
  For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers.
  This is a pretty lame effort to spin the FISA court decision. The most serious arguments against the TSP were statutory, and this new opinion decided a constitutional challenge after the statute was changed to allow the monitoring. The new FISA court decision is simply not about whether warrantless wiretapping is legal in some general sense, or whether the TSP program was legal at the time the program began. Rather, it was about whether a modified version of it violated one particular prohibition -- the Fourth Amendment -- based on the record before the court.
51 Comments

Outside Grammar's Portfolio:

1. I was recently reminded about the claim that "I and you" or "me and you" are grammatically incorrect -- not because "I" is being used instead of "me" or vice versa, but because it's wrong for "I" and "me" to go first. (Here's one sample I just found online, but I've seen others.) But that, it seems to me, is a principle of politeness -- let the other person go first -- and not of grammar.

2. Relatedly, the recent reference to Cohen v. California -- the case that held the government couldn't punish the wearing of a jacket that said "Fuck the Draft" -- reminded me of this passage from Justice Harlan's opinion:

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.

But there's nothing grammatically unpalatable to people about such vulgarities. "Fuck the Draft" is perfectly grammatical. "Fuckingly the Draft," I suppose, wouldn't be, but for that very reason I doubt that even lovers of vulgarity would wear such a jacket, unless they're trying for some linguistic absurdism.

3. So my question: Are these unrelated errors, or is there some reason why people sometimes refer to certain usage rules to grammatical rules, when the rules are actually rules of good manners?

37 Comments

Felony Hate Crime for Waiter to Play Arabic Chant at Jewish Wedding?

So New York authorities seem to think; here's the Complaint in People v. Buttafuoco (typos in original, all-uppercase text shifted to mixed case):

In the State of New York County of Nassau: Det Anthony J Rempel, shield#\1121. Being a member of the Nassau County Police Dept deposes and says that on or about the 5th day of January, 2009, at about 1:00am , at 200 Southwoods Rd Woodbury, the defendant did violate New York State Penal Lawsection(s) §240.30 (1) and §485.05 (1)(a) as a hate crime sub a.

§ 240.30 Aggravated Harassment in the Second Degree. A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:
1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.

And
§ 485.05 (1) (a) A person commits a hate crime when he or she commits a specified offense, and the defendant intentionally selects the person against whom the offense is committed in whole or in substantial part because of a belief or perception regarding race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct. The above listed offense is a specified offense under Penal Law 485.05 (3).

TO WIT: On the aforementioned date, time and place of occurrence, the defendant Buttafuoco, Stephen DOB 07/23/85 did use a taped audio message from his cell phone to communicate by an intercom system from the sanctuary of the Woodbury Jewish center, during a Jewish faith wedding, which transmitted throughout the reception hall. The prayer and chant of “Takbir” with a response “Allahu Akbur”, then “Takbir”, “Allah Akbar” did alarm and instill fear in the victim and other guests at the wedding which was for the victims son. This prayer and chant was recorded from a rally that the defendant had attended and taped on his cell phone according to the defendants own statements to the witness. The defendant did intentionally select the person against this crime committed because of a belief regarding religion. The defendant admitted he did this with the intention of disrespecting the religion. This is a violation of NYS Penal Law section 485.05 (1) A, which would make this a hate crime.

The above is based upon information and belief; the sources being the written statements by the victim and witness, The oral statements by the defendant, the audio message on the defendants cell phone, which was overheard by an investigating Detective, with consent by the defendant and other information received by the investigating Detective’s.

Is this constitutionally permissible? To be sure, employees may (and should) be fired by their employers when they disrupt weddings or annoy wedding guests, whether through speech or otherwise. The questions are (1) whether such offensive speech may constitutionally be made into a crime, (2) whether this particular "aggravated harassment" statute outlawing such offensive speech is constitutionally vague and overbroad even if a narrower and clearer statute punishing such speech would be permissible, and (3) whether it may be made a more serious crime when the target is intentionally selected based on the target's presumed religion.

My view is that this statute, at least if it's interpreted to apply to cases such as this one, is unconstitutionally overbroad and vague (though I'm aware that lower courts have indeed upheld some such statutes in some other contexts).

A content-neutral statute that banned all speech on someone else's property in a context where the property owner would almost certainly deny permission, and the speaker knows that the property owner would deny such permission, might be a constitutional content-neutral restriction. But no such statute is in play here; Buttafuoco is being prosecuted because of the offensiveness of the message he communicated, in a statute that isn't limited to communication on private property without the owner's permission. (I say "might be a constitutional content-neutral restriction" because it's possible that determining whether the property owner would have denied permission could require content-based judgments that courts might be barred from making; I'm just not sure how that would play out.)

84 Comments

Bush Says Goodbye: Perhaps the most interesting thing about President Bush's farewell address is how few people care about President Bush's farewell address. But I thought I would open a thread on it anyway. Feel free to leave your thoughts on the Administration now coming to an end.
169 Comments

Some Comments on the FISA Court of Review Decision: I was on a plane most of the day, delaying my promised blogging on the new FISA Court of Review case on foreign intelligence surveillance. Here are a few thoughts after reading the opinion.

  1. First, keep in mind that the opinion has only a very slight connection to the legal issues that we debated ad infinitum back in 2005-2006 on the legality of the Terrorist Surveillance Program. As you may recall, the major legal problem with the TSP as put in place in 2001 was statutory, not constitutional: The program appeared to violate the FISA statute. FISA was later amended to allow a modified version of the TSP, however, and the new opinion is a Fourth Amendment challenge to the procedures permitted by the amendment, the 2007 Protect America Act. So this opinion doesn't say anything at all about whether the TSP violated FISA.

  2. From the standpoint of precedent, it's a bit hard to know what to make of the case given that the facts are classified. I spent a lot of time trying to guess what the redacted parts might be, but didn't get very far.

  3. As for pure issues of law, I was struck by the court's careful reasonableness analysis. This was not a blank check by any means, and instead seemed to hold DOJ to a lot of procedures that it follows but that aren't written into the statute (effectively writing them in for the future). Of course, we don't know the details, as they are classified. But the Fourth Amendment was very much in play here: As I said, this was not a blank check.

  4. I was particularly intrigued by the "parting shot" (?) at the end in which the court tasks the Executive branch with a duty to notify the petitioner if what the court describes as "a specific privacy concern" arises. The specific concern might be a specific kind of overcollection problem; perhaps the petitioner was pointing out the possibility of overcollection given the surveilance tools being used. Whatever the specific problem, it's notable that the court didn't dismiss the hypothetical concern entirely: Rather, it ordered the government to disclose any evidence of that in the future if it occurs, which could then lead to a new challenge.

Related Posts (on one page):

  1. Some Comments on the FISA Court of Review Decision:
  2. FISA Court of Review To Issue Opinion Upholding Protect America Act Surveillance:
55 Comments

Thursday, January 15, 2009

[Dora Costa and Matthew Kahn, guest-blogging, January 15, 2009 at 11:03pm] Trackbacks
Empirical Social Networks Research

In this last blog entry, we would like to respond to some commentators and discuss our new research on the consequences of social networks. Dasarge and Fischer both discuss leadership. We can find some evidence of the importance of leadership. Black soldiers with an abolitionist officer were less likely to desert. But this was less important to their desertion decision than being in a company with guys like them. So to in response to Richard Aubrey, if you wanted to keep your men from deserting during the Civil War (and keeping men from deserting is a good idea if you want to win a war) having a homogeneous unit was the most important factor we could identify. We also find that men who had more of their (non-commissioned) officers in Andersonville were more likely to survive. Officers divided up the rations. We'd like to do more to identify the effects of leadership but our problem is identifying a good leader versus a bad one.

Our new research builds on the insights presented in our recent Heroes and Cowards book. We are convinced that empirical work on social networks offers social scientists with an interdisciplinary inclination to work together. Recently, sociologists, economists, political scientists and legal scholars have all made important contributions to this field.

Research on terrorist organizations indicates that friends and relatives join together and work together. By one estimate, roughly three quarters of mujahedin joined the global Salafi Jihad (of which Al Qaeda is a part) either as a group with friends or relatives or as men with close social ties to members (Sageman 2004: 114). Seventy percent of captured Italian Red Brigade terrorists had joined a friend who was in the terrorist organization – a next-door neighbor, a school friend with whom he or she had spent vacations, or a cousin with who belonged to the same voluntary association (della Porta 1988). Social bonds, not a shared terrorist ideology, drove the decision to join. The ideology came later (Sageman 2004: 133).

The fundamental challenge in conducting social networks research is to identify who is a member of one’s network and what might be the causal mechanism such that participating in such a network causes a behavioral change. Critics will always raise the valid point that people are rarely randomly assigned to a network. Do greens choose to live in Berkeley, California (selection) or does living in Berkeley cause one to embrace environmentalism (treatment)? The gold standard for separating “selection effects” from “treatment effects” is to identify situations when group members have been randomly assigned to a group. This randomization mitigates concerns about self-selection. The 2006 book, Are Judges Political? by Cass Sunstein et. al. highlights how legal scholars have approached these issues.

An ongoing health research agenda has linked social networks to health. People who report themselves to be socially isolated, both in the number and quality of their personal relationships face a higher mortality risk from all causes and from several infectious, neoplastic, and cardiovascular diseases. A large body of literature links stress, whether in the form of war, natural disasters, divorce, lack of control on the job, or even disrupted sleep patterns, to cardiovascular disease. Social networks could either mitigate or accentuate the effects of stress. They could mitigate the effects of stress through beneficial effects on psychological and physical well-being. But, they could accentuate the effects of stress if the stressor leads to the loss of friends or family (e.g. the well-established effect of death of a spouse on the mortality of a survivor).

In a forthcoming Demography paper, we investigate the interaction between stress and social networks in one of the few human populations to provide us with measures of stress, of long-run outcomes, and of exogenous social networks. We find that being in a more cohesive company reduced the negative, long-term consequences of wartime stress on older age mortality and morbidity, particularly from cardiovascular causes. Focusing on the role of stress factors in health and mortality may be a fruitful line of research, particularly as we exhaust the gains from public health advances. Matthew Kahn has returned to conducting research on environmental economics topics. While the U.S Civil War might appear to be light-years removed from urban pollution and Global Warming, social capital actually ties these sets of issues together. After all, there would be no “tragedy of the commons” if people felt altruism for each other and internalized the social costs of their actions ranging from littering to driving a Hummer around. In societies where there is greater social capital, there is less need for formal enforcement of anti-pollution laws. Social networks also can play an important role in the diffusion of new green products. If one’s probability of buying a hybrid vehicle or solar panels is an increasing function of whether one’s neighbors are purchasing such green products, then “bandwagon” effects can help to mitigate the challenge of climate change. Friends may also more quickly learn from their friends’ experience with new unproven products. Such word of mouth learning will accelerate the diffusion of good ideas.

7 Comments

More on Public Opinion on Israel/Gaza:

Via Rosner's Domain, the Powerpoint presentation from respected pollsters Greenberg and Newhouse linked on this page has to be pretty sobering for the Juan Coles and Glen Greenwalds who think American public opinion is on their (anti- very hostile to Israel's policies vis-a-vis the Palestinians) side. For example, five times as many people blame only Palestinian leaders for the violence in Gaza as blame only Israeli leaders (55-11); almost ten times as many people (48-5) think only Israeli leaders want peace and are working towards it as think the same of Palestinian leaders; almost seven times as many people think only Israel has moral leaders who work to limit civilian casualties as think the same about the Palestinians (47-7); and, perhaps most tellingly, despite the images of Israeli bombs exploding in Gaza for the last two weeks, almost four times as many people blame the humanitarian crisis in Gaza on Hamas as blame Israel (66-17).

I'm not confusing public opinion with wisdom, though even stopped clocks are right twice a day. Rather, the incessant complaints from certain ideological outliers that American public opinion really agrees with them on Israel, but the "Israel lobby" prevents the politicians from doing anything about it, aren't consistent with reality the polling data.

Related Posts (on one page):

  1. More on Public Opinion on Israel/Gaza:
  2. Juan Cole, The People's Oracle?:
102 Comments

Patrick McGoohan RIP: As has been noted elsewhere Patrick McGoohan, 80, died a few days ago.

Number 6

McGoohan achieved cult status as Number 6 on the short-lived series, The Prisoner. I watched the series in first run--as I recall as a summer replacement series. I found it awesome at the time up ("I am not a number; I am a free man!") until its greatly disappointing finale. After that, I watched it in reruns a bit and did still like it. One of the things I loved best about the show was its opening theme, which I remember recording on a 5" reel-to-real tape recorder. Now we have YouTube:



But I was a bigger fan of his role as secret agent John Drake. I watched him in the American import of the series under the name Secret Agent, which it was called in the US during the height of the James Bond craze. I preferred Drake to Bond, as it seemed more realistic to me, although the production values were completely back lot and sound stage. Drake was intelligent and suave.

Only later did I realize that the UK series was called Danger Man. Wikipedia has the following background (and more too):
There has never been a full explanation of the relationship between [Producer Ralph] Smart and McGoohan. McGoohan has never spoken about Ralph Smart in any detail. They did have face-to-face meetings at the beginning of the project, at which time they fleshed out the character of John Drake.John Drake

According to Andrew Pixley's notes to the CD Danger Man Original Soundtrack, Ian Fleming was involved with Ralph Smart to bring James Bond to television. (Casino Royale had been a one-off live TV play in America a few years before). Fleming dropped out and was replaced by Ian Stuart Black, and a new format/character to be called "Lone Wolf" was developed. This evolved into Danger Man.

Ian Fleming was involved in preproduction work on an American series, The Man from U.N.C.L.E., creating the name Napoleon Solo. [This explains why it was not exactly a coincidence that the mob character in Goldfinger was also named "Solo"--which caused the producers some concern given the overlap with the TV character.--RB]

The degree to which McGoohan changed Smart's original ideas is unclear. However, Smart evidently agreed to the changes and continued to be enthusiastic about his creation.[citation needed] Danger Man was financed by Lew Grade's ITC Entertainment.

In the United States, CBS broadcast some of the original format's episodes of the series under the Danger Man title as a summer replacement for the Western series Wanted: Dead or Alive. Years later, under the Secret Agent title, the same network aired the entirety of the second and third seasons. The two final episodes of the series often are presented as the television film Koroshi. "Secret Agent Man" is the title of the series' American-broadcast theme song, though often mistakenly applied to the series itself. This theme was written by P.F. Sloan and Steve Barri, and recorded by Johnny Rivers.
And only recently did I discover that Danger Man had two series runs in the UK. In the first Drake was--you won't believe this--an American agent of Irish descent, who worked as a contract agent for various agencies, like NATO. This revelation so rocked my assumptions about everything I thought I knew about the world that I briefly considered becoming a communist. I already bought the Danger Man Soundtrack CD when I was visiting England, and the music is quite good. Now the entire Danger Man series is now available on DVD. Though some of the plots are pretty thin and predictable, the John Drake character is every bit as cool as I remembered.

Questions for Attorney General Nominee Eric Holder,

in The New York Times, from Jack Goldsmith, Jeffrey Rosen, Noah Feldman, Charles Stimson, and me.

95 Comments

South Carolina Legislator Trying To Ban Vulgar Words in Public:

Here's the bill, which would make it a felony "for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature." Likewise, it would be a felony "for a person to disseminate profanity to a minor if he wilfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature."

To begin with, of course, this is unconstitutionally overbroad under Cohen v. California (the Fuck the Draft case), even if "profane" is read to mean "vulgar" rather than "characterized by irreverence or contempt for God or sacred principles or things." It may also be unconstitutionally vague; see Reno v. ACLU, which suggests that such terms are potentially vague when their scope isn't narrowed by other provisions of the statute (compare Hamling v. U.S.).

But beyond this, what's shocking is how ridiculously broad this proposal is, even to people who I take it would disagree with Cohen:

  1. If you say "fuck" or, I suppose, "damn" or "shit" around your own teenager, you're a felon.

  2. If you give, lend, or sell a book, newspaper, or movie to a minor that contains any such words, you're a felon.

  3. If you give the King James Version of the Bible to a minor, knowing that it contains the word "piss," I expect you're a felon, too. (I set aside "damn" and "hell" on the theory that they might not be treated as "vulgar" when used in a religious sense rather than figuratively as insults or expressions of disgust.)

  4. Two 16-year-olds can be sexually involved in South Carolina (as can an adult and a 16-year-old), but under this law they'd be felons if they talk lewdly to each other. (Why is teenage sex bad? Because it might lead to lewd talk.)

What is Senator Ford thinking?

Thanks to Bill Poser (Language Log) for the pointer.

85 Comments

What Does "Proportionality" Mean In Gaza?

My colleague Amos Guiora has an interesting op-ed on the situation in Gaza, focusing on the question of how the concept of proportionality should apply in a situation where the combatants (Hamas and Israel) have disproportionate power. Here is the core of the argument:

Israel and Hamas have disproportionate weapons available to them. The IDF has planes, helicopters, tanks, artillery and patrol boats. Hamas has Kassam and Grade missiles. What needs to be asked as a matter of international law is whether the available, disproportionate weapons are used proportionally. With regard to the current situation in Gaza, proportionality must be viewed from two perspectives: the threat posed and how is that threat posed.

The threat posed is to a million innocent Israeli civilians - Jews and Arabs - living within a 40 km (25 mile) radius of the Gaza Strip. The threat is actual and has been realized. There have been fatalities, injuries, damage to property and general disruption of daily life within Israel. How this has occurred is critical in understanding Operation Cast Lead in the context of collateral damage. It has occurred because of a broadly-based Hamas infrastructure.

In declaring war on Hamas, Israel has deliberately left undefined the degree to which an individual must be affiliated with Hamas in order to be categorized as a legitimate target. The consistent and constant bombing of southern Israel over a number of years required a broadly based and highly developed infrastructure. Such an infrastructure enabled the digging of many tunnels, the building of weapons and their storage and the firing of thousands of missiles. In contrast to the traditional model associated with the suicide bombing infrastructure predicated on the individual bomber, the planner, the driver and the financier, the Hamas rocket firing infrastructure is inherently broader.

By expanding the definition of “legitimate target,” the IDF has narrowed the definition of “collateral damage.”

This new paradigm presents enormous risk, for it invariably leads to the photographs that have caused Israel significant damage in the court of international opinion. The visual images from Gaza during the last two weeks are far more powerful than any spokesman’s words.

However, Israel declared war on an organization, and by extension on all those involved in that organization — active and passive alike. That is precisely how Operation Cast Lead is different from all previous Israeli operations.

While self-defense (in the classic model) is the legal basis for Cast Lead, the IDF’s re-articulation of proportionality and collateral damage is a new development in international law. How this new paradigm is implemented in the Gaza Strip is the essence of the issue. It means that the IDF is conducting an aggressive policy directed at Hamas. It suggests expanding the number of legitimate targets and broadening the definition of “military necessity”.

It does not — and must not — mean that all Gazans are legitimate targets. Israel’s Defense Minister declared war on Hamas, not on Gaza. The IDF must minimize collateral damage; to do otherwise is a violation of international law.

Further, Israel must not ignore its international humanitarian law obligations. To do otherwise is a violation of international law. The three-hour respites from aerial attacks to facilitate attending to humanitarian needs represent an attempt to balance between humanitarian obligations and operational necessities. However, the essence of the Israeli policy — the rightness or wrongness of which must be debated — is that declaring war on an organization that has fired more than 6,000 rockets into Israel since 2005 justifies enlarging the definition of legitimate targets and therefore narrowing the definition of what is considered collateral damage.

You can read the whole piece here.

152 Comments

FISA Court of Review To Issue Opinion Upholding Protect America Act Surveillance: The New York Times has the scoop. This is a very interesting development; stay tuned for lots of blogging on the opinion when it is released. Thanks to reader Ross Evans for the link.

Related Posts (on one page):

  1. Some Comments on the FISA Court of Review Decision:
  2. FISA Court of Review To Issue Opinion Upholding Protect America Act Surveillance:
64 Comments

Juan Cole, The People's Oracle?:

Juan Cole thinks the following is clever enough to post twice:

"The Israel lobbies take their cue on what is good policy from the Israeli government and the Likud Party. [emphasis added] So, US Israel policy is driven by . . . the Israeli rightwing. That is why Congress voted 309 to five to support Israel's war on the people of Gaza, with 22 abstaining."

As a preliminary matter, let's note that Juan Cole apparently conflates the positions of the "Israeli government" and the "Likud Party," even though the Likud Party is not in the current government, with the governing coalition dominated by the centrist Kadima Party and the center-left Labor Party. Public opinion polls show that almost the entire Jewish Israeli public--94%, a highly unusual consensus given Israel's famously fractious politics--supports the Gaza operation.* So any Congressman voting to support Israel is supporting a consensus position in Israel, not "the Israeli right-wing." Not to mention that Egypt, Jordan, and the Abbas government are none-too-subtly rooting for Israel to humiliate Hamas, and that Israel's actions are perfectly consistent with U.S. policy, supported by both parties, regarding how to deal with terrorism--see Afghanistan, war in.

Second, Cole and like minded-people (e.g., Glen Greenwald, who quotes Cole with effusive praise, has been particularly insistent that public opinion and U.S. policy regarding Israel wildly diverge) simply refuse to acknowledge that, while pro-Israel forces have a lot of influence, the primary reason for their success is that Israel is overwhelmingly popular among the American public, and the Palestinian leadership is overwhelmingly not: "Overall favorable ratings of Israel in February 2008 were 71%... By contrast, just 14% of Americans have a favorable opinion of the Palestinian Authority, while 75% have an unfavorable view.... The PA is rated just above North Korea (12%) and Iran (8%) as the least popular countries." Assumedly, Hamas, as a U.S.-designated terrorist organization responsible for horrific bus bombings and the like, is even less popular than the PA. More relevant data is available at the above link. Even if a particular Israeli action, like the one is Gaza, meets with some ambivalence from the American public, there is, to say the least, little to be gained by a Congressman from taking a position that can be portrayed in a 30-second t.v. ad as pro-Hamas.

I suppose it's easy enough, hanging around in left-wing circles in Ann Arbor and attending MESA conventions, and preaching to the choir on one's blog, to delude oneself into believing that the people's will is being frustrated by the nefarious "Israel lobbies," and that "the people" really agree with one's own extreme anti-Israel views. But delusion is what it is. Here's more from Commentary's Contentions blog.

*[Aside: if it was a "war on the people of Gaza," as Cole hysterically claims, the casualty count would be at least hundred times what it is; how do all the people who claim that Israel is engaging in "genocide" and what-have-you explain why there have been only about five hundred civilian casualties (according to Palestinian sources; the Israeli military estimates no more than 250) out of a population of over a million? Not that Cole has shown himself to be a clear thinker on Israel-related matters in the past.]

Related Posts (on one page):

  1. More on Public Opinion on Israel/Gaza:
  2. Juan Cole, The People's Oracle?:
55 Comments

Why the Utah Utes Football Team Should be the National Champions:

I posted a parody a couple of days ago on how the BCS computers are a poor way of determining champions. The comments on that thread lead me to think, as the sole University of Utah blogger here, that I should set out the case for the Utes being ranked #1.

We could sit and argue about who the “best” team in the country is all-day long without getting anywhere. Of course, such an opinion would be a highly debatable fact, and the truth is fans always think their team is the best regardless of their current record (just ask any Yankees fan!). Instead, the only sensible argument — and conclusion, in my opinion — is that based on our current system the Utah Utes should have been ranked the #1 in post-season polls.

However flawed, instead of utilizing a traditional playoff, our current system creates a 13 game playoff known as the regular season. During that so called playoff Utah beat everyone on their schedule including #7 TCU, #18 Oregon State (who beat USC), #25 BYU, and of course the #1 ranked team in the country for 5 weeks, Alabama, While some teams may have had arguably “tougher” schedules during their regular season, each of the contenders for #1 has at least one loss to explain. The Utes are the only division I team in the country with a "0" on the right side of their record.

Florida, the purported “National Champions,” during the regular season played against 4 teams that finished the season in the top 25. They went 3-1 in those games, losing at home to Ole Miss, a team who had four losses during the season, including losses to unranked Wake Forest, Vanderbilt, and South Carolina.

In addition to their undefeated season, Utah also had the most impressive win in a BCS game. Not because they merely beat 'Bama, but for long stretches of the game, they made them look like a J.V. team in their own backyard. Florida’s win over Oklahoma doesn’t even being to compare to the walloping Utah dished out.

So the question remains why did Utah not get the opportunity to play in the "National Championship" game? That answer is surprisingly simple and disturbing: Pre-season Polls. Consider where teams who were ranked ahead of Utah at the time of the selection of the "National Championship" game started the season: Florida, Oklahoma, USC, Texas, and Alabama were ranked 5th, 4th, 3rd, 11th, and 24th respectively in the AP Poll. (Utah was not in the top 25). Other than the big jump Bama got when they thumped pre-season #1 Georgia at home (who turned out to be wildly overrated), it is virtually impossible for a team to move over another team without that team losing. So in week 4 when USC lost to unranked Oregon St they fell from #1 to #9 while Utah was still at number 15. When #5 Florida lost to than-unranked Old Miss, they dropped only to 11th while undefeated Utah remained at 14th even though at that time nobody had any reason to believe Florida was any good based on anything other than the preseason polls.

In short, because Utah began the season unranked, they could not jump any team who was preseason ranked in the top 10 unless those teams lost twice, (LSU, Georgia, West Virginia, OSU, Clemson, and Auburn).

Knowing this raises the question: How are the top 10 teams decided before the season has even started? Basically a bunch of people get together before a single game had even been played at the "BCS Conferences" Media Days, where they listen to the hype of those coaches and decided by way of a popular vote what 10 or 12 teams will be considered for the national championship five months later in January. While pre-season polls should be used purely for entertainment purposes, instead they create a system of 10 or so elite teams that must lose at least twice before they can be passed by someone not in this unique fraternity.

In regard to my previous post, some VC readers wondered why Utah doesn't play more big teams. Utah scheduled (several years ago) a game against Michigan at Michigan. It was hardly the Utes' fault that Michigan turned out to be bad this year. (Or, maybe I should rephrase that — once the Utes knocked off Michigan at home, that sent Michigan into a downward spiral. Michigan essentially ranked 26th in the AP pre-season poll.) Moreover, most top-ranked teams don't want any piece of Utah. They know that Utah is a traditionally strong team and could very well knock them off and have no incentive to schedule them in non-conference play.

Finally, it’s no secret that the BCS voters just don't like the MWC and Utah. The Utes were called "BCS Busters" for a reson: They are not part of the “in crowd” and this in crowd consists of many of the voters and media outlets. It would be interesting to see how many of the voters had seen the Utes play, given the limited broadcast arrangements that the Utes have been able to secure.

The bottom line is if the current system worked Utah would have been in the National Championship game; however, because the BCS is not in a vacuum it does not work and the big conferences with the most fan support will always have an advantage over the little guys. As Rick Reilly said: “Some gifts people give are pointless: Styling mousse to Dick Vitale. An all-you-can-eat card to Kate Moss. The BCS Championship given to Oklahoma or Florida. It means nothing because the BCS has no credibility. Florida? Oklahoma? Who cares? Utah is the national champion. The End. Roll credits.”

Update: A commenter on this post mentions this interesting blog comment on what it means (and should mean) to be declared a "national champion." Here is John Feinstein's open letter asking AP poll voters to vote for Utah for college football's sake.

Related Posts (on one page):

  1. Why the Utah Utes Football Team Should be the National Champions:
  2. BCS Declares Germany to be the Winner of WWII
76 Comments

Wednesday, January 14, 2009

Frontrunners for Obama DOJ Positions: Sources speaking to the BLT are indicating that the following individuals are currently frontrunners for top posts in the Obama Justice Department: Lanny Breuer is likely to be picked as the head of DOJ's Criminal Division; D. Anthony West is likely to be picked as the head of DOJ's Civil Division; Mark Gitenstein is the likely head of the Office of Legal Policy; and Neal Katyal is likely to be picked as the Principal Deputy Solicitor General.
14 Comments

Carping about TARP-ing.

Is TARP a fabulous success? No! But it isn’t a failure, either. Look here, for example. The TED spread is a standard measure of financial confidence—roughly the amount of extra interest a bank needs to pay another bank to lend to it rather than to the U.S. government, which is (supposedly, anyway) super-safe. In normal times, it is around 0.5. During the height of the financial crisis, it was around 4.5. Now it’s tad below 1. Other indicators are consistent with TED. The purpose of TARP was to unfreeze the credit system. If it is not yet fully liquid, at least it has melted a bit. Mission Accomplished, as President Bush might say.

You might say that the credit system would have thawed by itself and TARP was wasteful and unnecessary and did nothing but generate a tsunami of moral hazard that will crest in the future. You might say that TARP thawed the credit system but a cheaper, more modest program could have done the same. You might say that the improvement of the indicators will last only as long as the Fed and Treasury pull the strings on the marionettes. But you don’t really know, do you? By the usual standards for evaluating government interventions, which is to say crummy standards, TARP has done okay. The safest thing to say is that it is too soon to tell, but by the same token it is too soon to tell that TARP has failed. Enjoy the good indicators (yes, while the real economy collapses around us, but that is another topic) and stop complaining.

So why all the carping? Congress, in its usual way, fulminates and snarls en route to its next disbursement of funds. Here are the criticisms, and some comments.

1. Treasury hasn’t compelled the banks to use TARP money to make loans to consumers and businesses. Maybe, but there is a good reason for this. The banks are insolvent. They are using the funds to become solvent. If they were just to lend them out again, the banking system would not emerge from life-support.

2. Treasury hasn’t compelled the banks to hold off on foreclosures. Maybe, but if the banks are insolvent or near insolvent, and they held off on foreclosures, then they would become even more insolvent. Holding off on foreclosures means giving up an asset or some portion of its value. Treasury probably believes that fixing the banking system should take priority over helping homeowners, many of whom should never have bought a house in the first place.

3. Treasury hasn’t compelled executives to accept lower paychecks. Maybe again, but I suspect there are good reasons here as well. TARP doesn’t give government any sticks; only carrots. If executives won’t take pay cuts as a condition for receiving funds, then Treasury’s only option is not to give the funds, which means not solving the banking crisis. Treasury has avoided wasting a lot of time that would be needed to achieve a largely symbolic and potentially harmful goal.

4. Treasury shouldn’t have bailed out the auto industry. I like this argument better but the problem is that it is possible that giving money to the auto industry would help the financial system more than its next best use, such as giving the money to some other banks somewhere. The automakers have more debt than plenty of banks. Still, one suspects that the auto bailout was a stimulus measure, not a credit-thawing measure.

5. Treasury hasn’t been “transparent” enough. Everyone likes transparency. But what would a transparent Treasury look like (nothing!)? It would say that we gave money to bank X rather than bank Y because X’s balance sheet is a bit better (or worse), or it has better executives, or it has a lot of key assets, or some such thing. It might as well say that it consulted the entrails of a rabbit. These are judgment calls, and while it’s always good to have more information, this additional information would just generate more disagreement among the critics. Okay, okay! More transparency, please!

6. Treasury has wasted our money. It will get much of it back, perhaps even a return on it, maybe even a higher return than we taxpayers have obtained through our private investments.

7. Treasury was supposed to use TARP funds to buy mortgage-related securities, not to purchase preferred stock in banks and other financial institutions (and automakers). But the statute authorized Treasury to do what it wanted with the funds, and although Treasury initially planned to use the funds to buy mortgage-related securities, it quickly realized that buying stock was a better way to revive the banking system. Well, good for them! They changed their minds when they were persuaded that their first idea was no good (though it may turn out to be good after all).

8. Treasury should have exerted more control over banks. And told them to do what, exactly? Loan to which corner grocery, set what interest rate on CDs?

As one can see, the criticisms are not all consistent with each other. If we want Treasury to compel banks to give its money to homeowners, then a lot of that money will disappear, which just means that fixing the financial system will be more costly. Maybe this is a good use of money, maybe not, but it would have made more sense to give Treasury a one-dimensional mission—fix the financial system—than to ask it to redistribute wealth from various bad guys to various good guys. Anyway, Treasury has, wisely, I think, decided that it will stick to fixing the financial system. If it sent a lot of money to homeowners, so the foreclosure rate dipped by a fraction, while the financial system fell apart, no one would give it much credit.

There is a real basis for congressional carping, however, and one that has received little attention so far. The problem is not one of competence and technology, but of distribution. Congress has given enormous power to Treasury to disburse funds as it sees fit. There are a lot of ways of spending this money that is consistent with fixing the financial system. You could give the money to Bank X or to Bank Y. You could give the money to automakers in Detroit or boat makers in Rhode Island. You could buy up a type of securities that institution Z happens to own or another type that institution W happens to own. It’s even possible that if you pay banks not to foreclose, in effect transferring money into the pockets of defaulting homeowners, you will avoid eroding the value of the housing stock, buck up the securities based on it, and improve the balance sheets of banks. In short, Treasury can, in the course of fixing the financial system, choose to rescue/benefit/enrich some people rather than other people. Treasury has clearly not chosen the people that the various complaining members of Congress care about—maybe people in their districts, or certain types of people who are likely to vote for them. Why not? Maybe because doing so would be just too costly. Or maybe because the Republicans who currently run Treasury have another group of people they’d rather benefit. We just don’t know. All that Congress knows is that the funds could have gone into someone else’s pockets.

You might say that Congress has no one to blame but itself. TARP put few constraints on Treasury, even fewer than the original 3-page Treasury proposal. Why didn’t Congress compel Treasury by statute to spend the money in a way that it would like? Because it just wasn’t possible to agree to legislation that would both give Treasury the necessary discretion to save the financial system and set out the winners and losers in advance (except via side payments to wooden arrow makers and the like). With the next $350 billion disbursement, expect the same.

33 Comments

[Dora Costa and Matthew Kahn, guest-blogging, January 14, 2009 at 11:08pm] Trackbacks
Social Networks and Their Impact after the U.S Civil War

Our last post sketched some of our key findings concerning the role of social networks and their effects on desertion and surviving POW camps during the U.S Civil War. In our new Princeton University Press book, Heroes and Cowards: The Social Face of War, we also use our unique longitudinal data to explore how the war affected the later life experience for Union Army soldiers. In this post, we discuss how deserters who survived the war lived their lives after the war. We also discuss our findings concerning black troops.

Deserters: Shame and Ostracism

During the U.S Civil War, home towns knew which of their sons had fought honorably and who had deserted. Spitzer and Avatar both commented that the need to maintain their reputations would keep men from deserting. And, as Spitzer predicted, we found that men from large cities were more likely to desert, all else equal. Spitzer then asked what happened to the deserters. After the war, would the cowards be welcomed back to their hometowns? Or would they feel shame and experience ostracism that would push them to move away?

If deserters left home, it was not because of written laws, but because of community mores. Once the war was over, deserters who had not been pardoned during one of the wartime presidential amnesties were dishonorably discharged with forfeiture of pay. They could return home without fear of arrest, but were deemed by the Federal government to have relinquished their citizenship or right to become a citizen of the United States and therefore their voting rights. Later court interpretations weakened federal law even further by specifying that the requirement could not be desertion alone but had to be a conviction of desertion. Furthermore, because states regulated voting rights, this federal disenfranchisement was widely viewed as ineffectual except in the territories and in the states that passed laws disenfranchising deserters (Lonn 1928: 202-207; United States War Department. 1880-1901. Series III, Vol. 5, 1900: 110).

By 1880 only Vermont still disenfranchised deserters. In Kansas, an 1866 amendment to the state constitution revoked voting rights from those dishonorably discharged as well as from felons and people who had aided in the rebellion, but an 1874 amendment struck dishonorable discharge as one of the listed offenses that led to a revocation of voting rights.

In thinking about the role of social sanction as a means to discourage desertion, we have been highly influenced by Robert Ellickson’s Order without Law. He argued that social sanction can substitute for formal legal sanction in encouraging law and order. Individuals adhere to community codes of conduct either because of laws and legal punishments or because of systems of informal social control. The community can enforce social norms if it knows who fought honorably and who did not (and this was well known to all Civil War communities) and if it is willing to punish those who dishonored the community. “An enforcer is on the front line of the system of informal social control. Enforcers observe what actors do and respond by meting out calibrated rewards and punishments” (Ellickson 2001: 8). But enforcers are not compensated for their actions, so why would they punish? Communities that were pro-war supplied a disproportionately large number of soldiers who fought and died in the war. Raw emotion and anger at the men who dishonored the community and endangered their comrades would motivate community enforcers.

Using our longitudinal data base, we found 7,000 Union Army survivors in the 1880 census. We use this long run evidence to document three key facts. Relative to non-deserters, and return deserters, deserters were less likely to move back to their home county and state after the war. These men were also less likely to be found in the 1880 census. This indicates that they changed their names and their identities after the war. Finally, we document that deserters who were from pro-War counties were even less likely to move home after the War. We measure a county’s pro-War sentiment based on the share of its voters who voted against Lincoln in the 1864 Presidential Election.

Black Soldiers: The Costs and Benefits of Diversity

Our sample of 6,000 black soldiers who fought for the Union Army allows us to examine the short run costs and long-run benefits of fighting in a diverse company. These troops represented a mixture of free men and ex-slaves who fought together in segregated all black units (with white commissioned officers). Within these black companies, soldiers differed with respect to their birth cohort and their county and state of enlistment. Similar to our results on desertion for white soldiers, we document that black soldiers were more likely to desert when they fought in more heterogeneous companies (based on geographical diversity and birth cohort). They were less likely to desert when fighting with men from the same plantation. These results suggest that black soldiers were more loyal to their unit when they fought in companies with men who had similar backgrounds.

We recognize that there are long run benefits from exposure to such diversity. After all, we can only learn from people who have had different experiences than we have had. We document that the black ex-slaves who fought with free men were more likely to become literate and were more likely to move to states after the war where their fellow company mates enlisted from. They were also more likely to drop their slave names, a sign that they were adopting a freeman’s identity. Our findings on the short run costs but long term benefits of exposure to diversity echo the points made by modern advocates of affirmative action on university campuses today.

What Sort of Diversity Matters?

The River Temoc asked how we measured homogeneity. For white soldiers we looked at place of birth, occupation, and age cohort. For black soldiers we looked at place of birth, age cohort, and, for the slaves, whether they were from the same plantation. What mattered most? For black soldiers, it was place of birth. For white soldiers, it was occupation. (This echoes our finding that in modern day communities income inequality is more important determinant of volunteering, joining nonchurch organizations, and trust than ethnic or racial diversity).

Dasarge noted that unit cohesion is mostly a psychological issue and that while race, home areas, and religion all play roles, they are not determinative. Yes, our work emphasizes the importance of ethnicity, state of birth, occupation, age, and kinship in unit cohesion in the past. We are not claiming that these were the only factors that influenced the formation of social ties among Union Army soldiers. Nor are we claiming that these factors are as important now as they were in the past. Race and ethnicity no longer predetermine friendships and marriage. For example, in the nineteenth and early twentieth century, Asians were viewed as “forever foreigners,” but marriages between whites and Asians have become increasingly common. Although black-white marriages are still rare, they are increasingly steadily. Even religion has become less important. What does seem to be becoming more important for volunteering, group participation, and trust is income diversity. And, one of the big determinants of income is education. Has education become the new social divide?

We recognize that highlighting the cohesion costs of diversity is not a politically correct statement. In his 2006 Johan Skytte Prize Lecture, Robert Putnam discusses his empirical analysis of modern day civic engagement in America. He reaches similar empirical conclusions on the consequences of diversity. He devotes ample attention to encouraging bridging social capital across groups. We hope that President-Elect Obama will point to his own diverse upbringing to start a national dialogue on this awkward issue. While the ongoing financial crisis has crowded out this issue in recent months, immigration and income inequality raise key policy issues in many nations around the world.

8 Comments

Volokh Conspiracy Caption Contest:

Submit your proposed caption in the comment thread.
118 Comments

"Why You Should Always Check Your Kid's Homework":

From Yew Nork Babe. Thanks to GeekPress for the pointer.

8 Comments

Young Adolf Hitler Campbell and Sisters Taken into State Custody:

Fox News reports:

A 3-year-old boy named Adolf Hitler and his [sisters, JoyceLynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell,] were removed from their New Jersey home last week and placed in state custody ....

Kate Bernyk, a spokeswoman for the [New Jersey Department of Youth and Family Services], said confidentiality laws barred her from commenting on the case or even confirming that the Campbell children were involved....

"I’ve dealt with the family for years and as far as the children are concerned, I have never had any reports of any abuse with the children," [police sergeant John] Harris said. "As far as I know, he’s always been very good with the children."...

Speaking generally, Bernyk said the state's "decision to remove a child is based on the safety and well being of the child and the risk to that child, and that decision is made in conjunction with the courts and the county family court judge." ...

"DYFS would never remove a child simply based on that child's name," Bernyk said.

For an earlier chapter in the Adolf Hitler Campbell saga, see this post, about a bakery's refusal to produce a birthday cake with the 3-year-old's name on it. Thanks to Fred Ray for the pointer.

Related Posts (on one page):

  1. Young Adolf Hitler Campbell and Sisters Taken into State Custody:
  2. "Cake Request for 3-Year-Old Hitler Namesake Denied,"
46 Comments

Anti-Semitism in The Philippines' "Leading Business Magazine":

One Bernardo V. Lopez writes in Business World:

Both Republicans and Democrats in the US support Israel in their Gaza invasion because the rich and powerful American Jewish community, which controls media, Hollywood, hedge funds, investment banks, among other things, gives funds to their campaigns and their cause. It is a "power quid pro quo."

Their political power is dependent on this small rich community. That is why they are but glorified puppets of the power behind their power. They, in their myopia and failure to see the global perspective — they who turn inward to see only the face in the mirror on the wall — are under the mercy of this elite group which holds the destiny of the planet in its hands. This Jewish elite virtually controls not only America but also the world. ... The US-Israeli partnership actually antedates both Obama and the Palestinian conflict. The Jewish tycoons became rapidly and intensely wealthy by funding both sides of World War I. They came to America and started taking over the economy. Today, they control media, filmdom, banking, large corporations and have people in Washington, the State Department, the National Security Agency, etc.

Meanwhile, the prime minister of Turkey has denied that his criticisms of Israel's actions in Gaza reflect anti-Semitism, but added that the situation is Gaza is being distorted by the "Jewish-backed media."

106 Comments

Update on the More Guns, Less Crime Debate

I previously posted on the Carlisle Moody and Thomas Marvell rebuttal to a 2003 article by Ayres and Donohue on the debate over the link between shall issue gun permit laws and crime. An alert reader has given me the link to the soon-to-be published Ayres and Donohue reply to Moody and Marvell, which I link here.

Related Posts (on one page):

  1. Update on the More Guns, Less Crime Debate
  2. Rebuttal of Ayres and Donohue Claim of "More Guns, More Crime"
18 Comments

Assuming Violations of the Fourth Amendment and Then Deciding the Scope of the Exclusionary Rule: Today's 5-4 decision in Herring v. United States reminds me of a broader point about Fourth Amendment cases: If you like the exclusionary rule, you really really don't want the Supreme Court deciding the scope of the exclusionary rule in cases like Herring and Hudson v. Michigan in which the Court simply assumes without deciding that the Fourth Amendment was violated and then decides if suppression is an appropriate remedy. The atmospherics are all wrong in such cases because the Justice are looking at a fact pattern in which it's not clear that something actually went wrong. The defendant is left in the tough position of demanding exclusion of evidence of guilt when it's not really clear that his rights were violated in the first place.

  I think that's a tricky position to argue for two reasons. First, the absence of a clear violation makes the legal issue rather abstract: From the defendant's standpoint, you don't have the actual case of a clear harm to make the deterrence argument more concrete. And second, the assumption that the Fourth Amendment was violated when it's not clear it actually was leaves the impression that maybe the Fourth Amendment is so easily violated that the court needs to limit the suppression remedy to keep things balanced. Under existing law, the Supreme Court takes a balancing approach to the exclusionary rule, imposing suppression when needed for deterrence. The more the Fourth Amendment is violated, however, the greater role there is for balancing.

  Assuming a violation below when one might or might not exist tends to leave the impression that balancing is all the more important. It hints that the scope of the Fourth Amendment itself is starting to cover technicalities rather than core clear violations. I think this tends to invite more balancing, and with it more chipping away at the exclusionary rule.
34 Comments

Responding to Tom Goldstein on Herring: Over at SCOTUSblog, Tom Goldstein has a very different take than I do on today's Fourth Amendment decision in Herring v. United States. Tom writes that his "preliminary reaction is that we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century." I thought it might be worth explaining why I disagree and why I think Herring is a minor case.

  Tom argues that there is a part of Herring that could be read as a dramatic change in Fourth Amendment law by creating a general good faith exception to ordinary police conduct. (There is a good faith exception when the police get a warrant, but no such exception otherwise under current law.) Here's his argument:
  Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Slip Op. at 9. “[W]e conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements,” the exclusionary rule does not apply. Id. at 12.
  The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
  . . . The one limitation on the Court’s opinion — and it will be the key to determining whether it reworks Fourth Amendment jurisprudence very significantly — is the Court’s statement that its rule applies to police conduct “attenuated from the arrest.” Those statements constrain today’s holding largely to the bounds of existing law. But the logic of the decision spans far more broadly, and the next logical step — which I predict is 2 years away — is abandoning the “attentuation” reference altogether. . . .
  Interestingly, as I said, the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.
  I read Herring quite differently. I think it's a narrow and interstitial decision, not one that is rocking the boat. In particular, I don't see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases. That issue wasn't raised by the briefs or argument, however, so I don't see it as natural to read such a conclusion into the holding that pretty much just answered the question presented in the briefs. I think that's why the dissenters didn't sound the alarm: The decision was quite narrow.

  To the extent Tom is predicting that a future Supreme Court decision might someday change the law and cite Herring for support, even if Herring does not on its face indicate that reading, that's certainly possible. But if so, I think that will be a decision of the future Supreme Court, not today's decision in Herring.
29 Comments

San Francisco Housing Authority Allows Lawful Gun Possession by Residents:

See this settlement agreement in Doe v. San Francisco Housing Authority, filed Monday. Congratulations to Chuck Michel on a big victory.

Congratulations also, again, to Alan Gura on his victory in D.C. v. Heller, which I think helped bring this about. DailyPundit (Bill Quick) seems to be correct: This result undermines the claims, which I've often heard, "that Heller did not have any effect."

Of course it's possible that the San Francisco Housing Authority thought it would win at trial but settled for other reasons, such as a judgment that the policy was a bad idea or was bad politics; but on the facts as I know that, I'm skeptical that the Authority would indeed make such judgments. My suspicion is that the risk of a Second Amendment defeat must have played a pretty substantial role in the Authority's decision, though I should also note that such a defeat would have not been at all certain (given that it's not clear that courts will say that the Second Amendment is incorporated against the states via the Fourteenth Amendment, and that the Amendment binds the government as proprietor, even proprietor of people's homes).

Thanks to InstaPundit for the pointer.

26 Comments

Oregon v. Ice: The Supreme Court hadned down a fascinating sentencing decision in Oregon v. Ice, dividing 5-4 on whether judges can impose consecutive sentences (sentences served one after the other if the defendant is convicted of multiple crimes) based on disputed facts not found by the jury. Justice Ginsburg concluded that the answer is "yes," and she was joined by Stevens, Kennedy, Breyer, and Alito. Justice Scalia wrote a dissent arguing "no," joined by the Chief, Justice Souter, and Justice Thomas. For commentary throughout the day, check out Sentencing Law & Policy.
22 Comments

The Crime Victim's Right to Confer with Prosecutors

The federal Crime Victims' Rights Act gives crime victims "the reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. sec. 3771. How far does this right extend?

In a previous post (found here) I noted the Eleventh Circuit's recent decision interpreting the Crime Victims' Rights Act as providing protection to victims' of financial fraud even when they are not listed as victims in the indictment filed by the Government. In the wake of that ruling, the Government has filed a petition for panel rehearing with the Circuit. Now the victims (whom I represent along with other attorneys) have filed motion to strike the Government's Rehearing Petition alleging a violation of their right to confer.

A few facts: The victims sought to confer with the Government before it filed any rehearing petition. The Govenrment refused, sending a note to the victims that the right to confer in the CVRA does not extend that far.

The victims' motion to strike, found here, contends that the Government's failure to confer with them about the rehearing petition violated the CVRA and that the proper remedy for that violation (and others) is to strike the rehearing petition.

Here is the introduction to the motion:

The victims come to the Court (reluctantly) because the Government has bluntly refused to confer with them and thus has clearly violated the CVRA. In brief, immediately after this Court granted the victims’ mandamus petition, the victims sent a detailed letter to the U.S. Attorney’s Office handling the case requesting an opportunity to promptly confer about important issues that had arisen in the wake of the ruling. The Office chose, however, to ignore that letter, instead informing the district court (but not the victims) that it would be seeking rehearing. Upon learning of the Office’s apparent decision, the victims again immediately requested an opportunity to confer. Again, the U.S. Attorney’s Office chose not to confer, belatedly informing the victims in a terse e-mail that, in its view, the CVRA did not give the victims any rights to confer about rehearing and the issues intertwined with it. The prosecutors’ interpretation of their obligations under the CVRA is too narrow. The CVRA broadly confers on victims “[t]he reasonable right to confer,” 18 U.S.C. § 3771(a)(5), a right which the congressional sponsors of the Act stated “is intended to be expansive." 150 Cong. Rec. S4268 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added). The U.S. Attorney’s Office is therefore simply wrong as a matter of law in concluding that it need not confer with the victims about its rehearing petition.

I thought VC readers might be interested in the victims' motion and in the broader question of how far does a right to confer extend?

25 Comments

Supreme Court Hands Down Herring v. United States: Today the Supreme Court handed down what is probably the most interesting Fourth Amendment case of the Term, Herring v. United States, the case on whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and therefor to arrest him. Readers may recall that after reading the briefs and the argument transcript, I had concluded that Herring was a narrow but clear win for the government. Somewhat to my surprise, the case became a 5-4 decision, with Chief Justice Roberts writing the majority opinion with the four liberal Justices in dissent, in what is almost a replay of similar issues 14 years ago in Arizona v. Evans, 514 U.S. 1 (1995).

  Roberts' opinion adopts the now-standard balancing approach to the exclusionary rule, in which the court balances the costs of exclusion of the evidence to the public safety to the deterrent benefit to the police, and concludes that under this balance the exclusionary rule does not apply. Here's Robert's basic argument, with citations and internal quotations omitted, as numbered in the opinion:
  1. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable— does not necessarily mean that the exclusionary rule applies.
  2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct.
  3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.
  4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion.
  Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” In such a case, the criminal should not go free because the constable has blundered.
  In contrast, Justice Ginsburg's opinion, joined by Stevens, Souter, and Breyer, argues for a broader conception of the exclusionary rule:
  I would not so constrict the domain of the exclusionary rule and would hold the rule dispositive of this case: “[I]f courts are to have any power to discourage [police] error of [the kind here at issue], it must be through the application of the exclusionary rule.” Arizona v. Evans, 514 U. S. 1, 22–23 (1995) (STEVENS, J., dissenting).
  [After describing narrower view of the exclusionary rule, Ginsburg writes:] Others have described “a more majestic conception” of the Fourth Amendment and its adjunct, the exclusionary rule. Evans, 514 U. S., at 18 (STEVENS, J., dissenting). Protective of the fundamental “right of the people to be secure in their persons, houses, papers, and effects,” the Amendment “is a constraint on the power of the sovereign, not merely on some of its agents.” Ibid. (internal quota-
tion marks omitted). I share that vision of the Amendment.
  The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.
  Is the potential deterrence here worth the costs it imposes? In light of the paramount importance of accurate recordkeeping in law enforcement, I would answer yes. . .
  Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. Such errors present no occasion to further erode the exclusionary rule. The rule “is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera.” Calandra, 414 U. S., at 361 (Brennan, J., dissenting). In keeping with the rule’s “core concerns,” ante, at 9, suppression should have attended the unconstitutional search in this case.
Justice Breyer then wrote a short dissent joined by Souter in which he argued based on precedent that Arizona v. Evans was distinguishable because this case involves a police error, not a court error.

  I'll have to take some time to digest this, but off the top of my head I'm struck by this case being a replay of Arizona v. Evans back in 1995. Seven of the nine Justices were on the Court then, and they're pretty much in the same position now that they were in then. Back in 1995, Ginsburg dissented, Stevens dissented, and Souter and Breyer wrote a short opinion expressing the view that it was still open as to how the issues would play out with other database errors with different facts. I suppose it's arguable that Justices Souter and Breyer have shifted more to the Ginsburg/Stevens view, as they joined the Ginsburg dissent in Herring today that is pretty much like her dissent in Evans 13 years ago, but it's hard to say given their short opinion in Evans.

  Finally, it's interesting that Justices Ginsburg and Stevens (and perhaps Souter and Breyer) didn't seem to give any deference to the Evans precedent. I'll have to look more closely at this issue, but it seeems that they endorsed the approach of the Evans dissenters rather than the Evans majority and would not give the majority opinion any stare decisis effect. That's my initial sense, anyway — do others read the Ginsburg dissenting opinion differently?
86 Comments

Tuesday, January 13, 2009

[Dora Costa and Matthew Kahn, guest-blogging, January 13, 2009 at 11:20pm] Trackbacks
Social Networks during War Time:

In our new Princeton University Press book, Heroes and Cowards: The Social Face of War, we examine the war experience for Union Army soldiers. We weave a single narrative from the life histories of 41,000 Union Army soldiers, diaries and letters, and government documents. Our core questions are not those typically asked in a military history. When are men willing to sacrifice for the common good? What are the benefits to men of friendship? How do communities deal with betrayal? And what are the costs and benefits of being in a diverse community?

In this post and our next post, we would like to provide an overview of some of our key findings. For readers who enjoy applied econometrics, we encourage you to go Dora Costa’s UCLA website where you can download our key academic papers.

Desertion

A soldier who sought to survive the U.S Civil War should have deserted and roughly 200,000 Union Army soldiers did (about a tenth of the army). Out of the roughly 80,000 men who were caught, 147 were executed. Those who stayed faced a death rate of 14 percent, with half of the deaths from wounds and half from disease. In contrast, during World War II, Stalin’s armies had special detachments that formed a second line to shoot at any soldiers in the first line who fled and the families of all deserters were also arrested. Out of the roughly 35,000 German soldiers tried for desertion by the Third Reich, about 22,750 were executed. Democracies cannot inflict such punishments. Lincoln recognized that “you can’t order men shot by the dozens or twenties. People won’t stand it.”

Given these facts, is it surprising that only a tenth of men actually deserted? We argue that desertion is a great measure of “community participation”. In a group of 100 men, if one man deserts the army he raises his probability of survival but puts his fellow men at risk to be crushed by the enemy. Unlike in the modern corporation with bonus pay and pay for performance, the diaries these men left makes clear that they were fighting for each other.

We use our unique longitudinal data to document several facts about the determinants of desertion. Here we focus on our most salient findings. We encourage you to read our book to learn all! In what follows, please keep in mind that these findings are based on multivariate statistical analysis so we are holding all other factors constant and varying one explanatory variable at a time. When the Union Army was winning battles, desertion rates declined. Just like in professional sports, everyone loves a winner. Desertion probabilities were higher in more diverse war companies. Turning this statement around, men who fought in more homogenous war companies (based on occupation, age, and place of enlistment) featured lowered desertion probabilities. A generalization of this finding is that people are better citizens in social settings when their community looks like them. In our next post, we will relate this finding to ongoing social science research on the costs of living in a diverse community.

Surviving POW Camps

Many of us have enjoyed watching Hogan’s Heroes on television. While Bob Crane outwitted Clink and Sgt. Schultz in his WW2 Nazi POW camp, U.S Civil War soldiers sent to Andersonville had a lot less fun. An estimated 211,411 Union soldiers were captured during the Civil War. Seven percent of all U.S. Civil War soldiers were ever imprisoned compared to 0.8 percent for World War II.

Civil War POWs suffered from poor and meager rations, from contaminated water, from grounds covered with human excrement and with other filth, from a want of shoes, clothing, and blankets (having often been stripped of these by needy Confederate soldiers), from a lack of shelter in the open stockades that constituted camps such as Andersonville and Millen, from the risk of being robbed and murdered by fellow prisoners, and from trigger-happy guards. Our data show that at Andersonville, the most notorious of the POW camps, roughly 40 percent of all men of who passed through the camp died, and half of the deaths occurred within three months of entry. The chief causes of death were scurvy, diarrhea, and dysentery.

How did men survive such horrific conditions? The accounts of survivors provide some clues, as do the accounts of survivors of Nazi concentration camps, the Soviet gulag, and Japanese and Vietnamese POW internment camps. But some accounts conclude that death is random; others emphasize psychological defense mechanisms; others emphasize the importance of leadership; and still others emphasize the role of friends. We can use our longitudinal data and a data set on almost the entire population of Andersonville put together by the Park Service to examine the effects of age, social status, rank, camp population, and the presence of own officers on survival.

The single most important determinant of camp survival was how crowded the camp was. Another important determinant of camp survival was age. Those of higher rank fared better, as did those with useful skills. Men with officers from their own companies were more likely to survive than those without or with fewer officers.

Holding these factors constant, social networks within the camps increased a soldier’s survival probability. We can establish this because we know each POW’s war company and home town. We document that men who were in the camp with “more friends” had higher probabilities of survival then men with similar demographics who were in the camp with fewer friends. Ties between kin and ties between comrades of the same ethnicity were stronger than ties between other men from the same company.

Why did friends increase the probability of surviving POW camps? Did friends provide extra food or clothing, tend to the sick, protect against the predation of other prisoners? Or did simply having a friend have a positive effect on men’s immune and endocrine systems? Monkeys randomly assigned to stable or unstable social conditions and inoculated with the simian immunodeficiency virus face shorter lives if they live in unstable social conditions conditions. We cannot run such tests on humans. But, in our final post, we will discuss some intriguing evidence for how social networks can cushion psychological shocks. We would like to conduct similar survival research based on records from the Nazi holocaust camps. We have not been able to identify credible network measures (analogous to our War Company identifiers) to be able to establish who knew who within these camps.

42 Comments

Top 10 Signs Of Evolution In Modern Man: The List Universe offers 10 signs of evolution in our bodies, with some nice accompanying graphics. (hat tip LGF):
Through history, as natural selection played its part in the development of modern man, many of the useful functions and parts of the human body become unnecessary. What is most fascinating is that many of these parts of the body still remain in some form so we can see the progress of evolution. This list covers the ten most significant evolutionary changes that have taken place - leaving signs behind them.
Here are a few:
10. Goose Bumps: Humans get goose bumps when they are cold, frightened, angry, or in awe. Many other creatures get goose bumps for the same reason, for example this is why a cat or dog’s hair stands on end and the cause behind a porcupine’s quills raising. In cold situations, the rising hair traps air between the hairs and skin, creating insulation and warmth. In response to fear, goose bumps make an animal appear larger - hopefully scaring away the enemy. Humans no longer benefit from goose bumps and they are simply left over from our past when we were not clothed and needed to scare our own natural enemies. Natural selection removed the thick hair but left behind the mechanism for controlling it. . . .

6. Plantaris Muscle: The plantaris muscle is used by animals in gripping and manipulating objects with their feet - something you see with apes who seem to be able to use their feet as well as their hands. Humans have this muscle as well, but it is now so underdeveloped that it is often taken out by doctors when they need tissue for reconstruction in other parts of the body. The muscle is so unimportant to the human body that 9% of humans are now born without it. . . .

3. Darwin’s Point. Darwin’s point is found in the majority of mammals, and humans are no exception. It is most likely used to help focus sounds in animals, but it no longer has a function in humans. Only 10.4% of the human population still has this visible left-over mark of our past, but it is possible that a much larger number of people carry the gene that produces it as it does not always cause the ear tubercle to appear. The point (shown in the picture above) is a small thick nodule at the junction of the upper and middle sections of the ear.
For some reason, I found that the fact I am one of the 10.4% who have this feature to be somewhat creepy.

Also, it turns out that, just recently, scientists think they may have discovered a function for #1 on the list: the appendix (so maybe there is still hope for Darwin's Point). Tech News Watch blog reported that Appendix Isn’t Useless At All: It’s A Safe House For Bacteria:
Long denigrated as vestigial or useless, the appendix now appears to have a reason to be — as a "safe house" for the beneficial bacteria living in the human gut.

Drawing upon a series of observations and experiments, Duke University Medical Center investigators postulate that the beneficial bacteria in the appendix that aid digestion can ride out a bout of diarrhea that completely evacuates the intestines and emerge afterwards to repopulate the gut. Their theory appears online in the Journal of Theoretical Biology.

"While there is no smoking gun, the abundance of circumstantial evidence makes a strong case for the role of the appendix as a place where the good bacteria can live safe and undisturbed until they are needed," said William Parker, Ph.D., assistant professor of experimental surgery, who conducted the analysis in collaboration with R. Randal Bollinger, M.D., Ph.D., Duke professor emeritus in general surgery.

The appendix is a slender two- to four-inch pouch located near the juncture of the large and small intestines. While its exact function in humans has been debated by physicians, it is known that there is immune system tissue in the appendix.

The gut is populated with different microbes that help the digestive system break down the foods we eat. In return, the gut provides nourishment and safety to the bacteria. Parker now believes that the immune system cells found in the appendix are there to protect, rather than harm, the good bacteria.
Read the whole thing if you have the stomach for it. I think I will now watch Orin's video of the speeder again.

When 35-Year-Olds Write Legal Memos: Over at Slate, Yale Law professor Bruce Ackerman comments on the poor quality of John Yoo's memos for OLC:
While John Yoo did most of the staff work for [OLC Head Jay] Bybee, Yoo was barely 35 years old—and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments.
  Am I right that Ackerman is suggesting that someone who is "barely 35 years old" is showing his age when he writes memos that are "legally incompetent"? If so, does anyone know when legal abilities peak? I'm 37, so maybe there's hope for me after all.
94 Comments

Resolution to Repeal the Twenty-Second Amendment:

It's H.J. Res, 111th Cong., 1st Sess., introduced by Rep. José Serrano on Jan. 6, 2009. The resolution proposes "an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President." I don't have much to say on the merits, but I'm curious about the backstory: Why is Rep. Serrano proposing this? He had apparently done the same in 2005.

Thanks to Jeff Settle for the pointer.

98 Comments

How Not to Respond to Getting A Speeding Ticket:
104 Comments

Home Schooling as Factor in Child Custody Decisions:

My October 2008 post on a case involving this subject drew a good deal of reader interest, so I thought I'd note another case -- it's from late November, but I just ran across it recently. Here are the Michigan Supreme Court opinions denying review (Taylor v. Taylor):

[Young, J., concurring, joined by Taylor, C.J., and Weaver and Corrigan, JJ.:]

I concur in the order denying leave to appeal. According to the record, the “lynch pin” of the trial court’s decision to send the minor child to a public school was MCL 722.23(j), which considers the “willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent ....”

The record amply supports the trial court’s conclusion that the two parents simply “do not communicate,” and that the mother’s desire to homeschool the child would result in the father being precluded from having any “say or involvement in his child’s education.” While regrettable, I do not view the stray remarks of the trial court, which appear to reflect a view of homeschooling as less beneficial than a public school, as altering the legitimacy or primacy of the trial court’s best interests determination.

[Markman, J., dissenting:]

I respectfully dissent. Instead of denying leave to appeal, I would remand to the trial court for reconsideration of its order resolving the parties’ dispute concerning their child’s education. The trial court resolved this dispute in favor of the public schooling preferred by the father and in opposition to the homeschooling preferred by the mother. Although I take no position on the merits of the trial court's ultimate decision, I believe that the court erred by at least appearing to take improper factors into account in reaching this decision.

In particular, I believe that the trial court erred by appearing to substitute its own generally unfavorable attitudes concerning homeschooling for the public policies of this state, which accord no preference for either public schooling or homeschooling. While the trial court is entitled to its own views concerning the respective merits of these educational approaches, it is not entitled to replace the policies of Michigan with such personal views.

Here, the court concluded with regard to the parties’ six-year-old daughter’s educational prospects that “she doesn't seem to have a problem, I don’t believe, in being able to succeed anywhere,” but then terminated the daughter’s homeschooling, asserting that her interests would be best served by public schooling, in which both parents could be involved. In the course of rendering this decision, the trial court made the following observations:

  1. Public schools would offer the child a “wider exposure” than she would receive with homeschooling.

  2. Public schools would offer “much more diversity, many more opportunities with respect to the things that she would be able to do.”

  3. Although the court “appreciate[d] and respect[ed] [the mother’s] desire to have a religious-based schooling, we live in a very diverse society and it is not beneficial for children to be raised in a bubble where they do not have exposure to other people’s cultures and other people’s religion.”

  4. Public schooling would make the child “a more well-rounded person.”

Each of these observations may or may not be true, or relevant. However, taken as a whole, they evince an attitude toward homeschooling (and public schooling) that is simply not reflected in the laws and policies of this state. Taken as a whole, these observations suggest a predisposition by the trial court that, everything else being equal, public schooling is invariably preferable to homeschooling, a predisposition that would presumably also counsel in favor of public schooling in future disputes in which parents disagreed on approaches to their children’s education.

Upon remand, I would direct the trial court to resolve the instant dispute in a manner that is not grounded on a predisposition toward either public schooling or homeschooling. I would require the trial court, as it has done with regard to the other statutory factors set forth in MCL 722.23(h), to assess the best interest of this child in terms of her particular educational needs. While there conceivably may be circumstances -- pertaining either to the child, her parents, her parents’ relationship, or the available schools -- that would counsel in favor of public schooling or homeschooling in the instant case, these need to be set out with specificity and without reference to any predisposition toward either public schooling or home schooling.

[Footnote:] Although it may be true, as the Court of Appeals suggests, that the trial court’s decision on the child’s education was “not based on a bias against home schooling,” such conclusion entails speculation and conjecture in light of what was actually stated. Similarly, it is conjecture and speculation that these statements constituted mere “stray remarks,” as the concurring statement asserts. If the Court of Appeals, and the concurring statement, are correct in these assessments, the trial court, on remand, could make this clear. I am comfortable that this matter can be remanded to the same judge for further consideration.

The court of appeals decision is here.

23 Comments

"Of the People [and] for the People":

I'm writing a short item on Thomas Cooper, the late 18th and early 19th century English and American public intellectual, judge, legal scholar, chemistry professor, Sedition Act defendant, and troublemaker. In a 1794 work of his, Some Information Respecting America, I noticed the phrase "The government [in America] is the government of the people, and for the people."

This obviously sounds much like Lincoln's "government of the people, by the people, for the people." It seems equally obvious that even if Lincoln's line was indirectly influenced by Cooper's, the influence will be hard to trace, and it may well be that Lincoln's sources came up with it independently of Cooper.

But I did want to ask whether any of you folks know of any earlier sources that join "of the people" and "for the people" (or "by the people"). I might want to credit Cooper with having the first known use of the phrase and I don't want to do that if there's contrary evidence. So if you can let me know of that, I'll be much obliged. (I checked some searchable databases on this, but the difficulty is that many of them exclude words like "of," "for," and "the" from their searches.) Many thanks!

19 Comments

More on the DOJ Civil Rights Division Hiring Report: I blogged below about the DOJ Inspector General report on hiring in the Civil Rights Division, and I wanted to point out that the report is really pretty amusing (in a frightening sort of way) for the details it offers about the hiring process. In particular, Bradley Schlozman seems to have never thought about the possibility that his e-mails would some day be made public, so he left a lot of gems for us to ponder.

  Here's my favorite so far. At one point, a DOJ section chief had contacted the judge that an applicant had clerked for, and one judge apparently offered a negative review of the applicant. Noting that the judge was a Bush-43 appointed judge, Shlozman discounted the criticism in an e-mail to the DOJ section chief on the following basis:
Okay, but just remember, Republican judges are generally far more demanding of quality, accuracy, and faithful adherence to statute and constitutional text than liberals, for whom activism and advocacy are the hallmarks of acceptability.
Yeesh.
30 Comments

Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?

I just realized I missed something about the policy in Nassau County, New York that assistant District Attorneys "are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney."

It turns out that New York Labor Law § 201-d provides, in relevant part,

[(1)(b).] "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; ...

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: ...

c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property ....

3. The provisions of subdivision two of this section shall not be deemed to protect activity which:

a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest; ...

d. with respect to employees of [certain government employees], is in knowing violation of article eighteen of the general municipal law or any local law, administrative code provision, charter provision or rule or directive of the mayor or any agency head of a city having a population of one million or more, where such law, code provision, charter provision, rule or directive concerns ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties and otherwise covers such employees ....

4. Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer's actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct....

It's hard for me to see how any of the exceptions apply here, so the policy strikes me as clearly improper as to recreational possession of handguns, for instance at a target-shooting range. The employer may not punish an employee for violating the policy in such a situation.

I'd say the same would be true as to applying for a handgun permit in order to keep the handgun for recreational activities." That might be a tougher call, given that applying for the permit is not itself a recreational activity. But since applying for the permit may be necessary to own the tools needed to engage in the recreational activity -- if the applicant is motivated by recreational purposes -- I would think that it would be covered. I take it, for instance, that an employer can no more punish someone (given New York Labor Law § 201-d) for applying for a hunting permit, or for buying a snowmobile, than it could for actually hunting or snowmobiling. Or is my analysis mistaken here?

Related Posts (on one page):

  1. Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?
  2. Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:
20 Comments

Buy This Man's Book:

Today's NYT profiles Dr. Paul Offit, author of Autism's False Prophets: Bad Science, Risky Medicine, and the Search for a Cure. His book is a fervent and detailed defense of childhood vaccination. For daring to challenge the "vaccines cause autism" crowd, he's been tarred a a "terrorist" and labeled "Dr. Proffit," which only shows how urgently his message was needed.

Dr. Offit’s book, published in September by Columbia University Press, has been widely endorsed by pediatricians, autism researchers, vaccine companies and medical journalists who say it sums up, in layman’s language, the scientific evidence for vaccines and forcefully argues that vulnerable parents are being manipulated by doctors promoting false cures and lawyers filing class-action suits.

“Opponents of vaccines have taken the autism story hostage,” Dr. Offit said. “They don’t speak for all parents of autistic kids, they use fringe scientists and celebrities, they’ve set up cottage industries of false hope, and they’re hurting kids. Parents pay out of their pockets for dangerous treatments, they take out second mortgages to buy hyperbaric oxygen chambers. It’s just unconscionable.”

In addition to providing intellectual ammunition for vaccination advocates, Dr. Offit has also helped recruit celebrities to the cause. According to the NYT article, he helped convert actress Amanda Peet to the cause. (Take that, Jenny McCarthy!)

86 Comments

Rebuttal of Ayres and Donohue Claim of "More Guns, More Crime"

A new article has recently appeared in a peer-reviewed journal on the issue of whether "shall issue" right-to-carry concealed weapons laws (reqwuiring authorities to issue concealed-weapons weapons to anyone who applies without a criminal record or history of mental illness). The article, found here, concludes that such laws are generally beneficial.

The article, written by Carlisle Moody and Thomas Marvell, rebuts the 2003 article in the Stanford Law Review by Ian Ayres and John Donohue. Ayres and Donohue found (contrary to the seminal work of John Lott and David Mustard) that shall-issue laws actual lead to an overall increase in crime. Here is how Moody and Marvell describe their findings:

While reading Ayres and Donohue’s 2003 article in the Stanford Law Review, we noticed that their analysis did not prove what they said it proved. They claimed that their model proved that shall-issue laws increased crime. Our conclusions are as follows.

Many articles have been published finding that shall-issue laws reduce crime. Only one article, by Ayres and Donohue who employ a model that combines a dummy variable with a post-law trend, claims to find that shall-issue laws increase crime. However, the only way that they can produce the result that shall-issue laws increase crime is to confine the span of analysis to five years. We show, using their own estimates, that if they had extended their analysis by one more year, they would have concluded that these laws reduce crime. Since most states with shall-issue laws have had these laws on the books for more than five years, and the law will presumably remain on the books for some time, the only relevant analysis extends beyond five years.

We extend their analysis by adding three more years of data, control for the effects of crack cocaine, control for dynamic effects, and correct the standard errors for clustering. We find that there is an initial increase in crime due to passage of the shall-issue law that is dwarfed over time by the decrease in crime associated with the post-law trend. These results are very similar to those of Ayres and Donohue, properly interpreted.

Moody and Marvell's findings seem plausible to me.

Related Posts (on one page):

  1. Update on the More Guns, Less Crime Debate
  2. Rebuttal of Ayres and Donohue Claim of "More Guns, More Crime"
52 Comments

A Nation of Troublemakers, We Are:

The Dixie Yid reports on how he used his statutory construction skills to get out of a ticket for using a cell phone while driving. And he raises the important question: What is "the immediate proximity of[] the user's ear"? An interesting post.

27 Comments

“My tentative plans are to gerrymander all of those crazy libs right[] out of the section.": You can read that quote and a lot more in the DOJ Inspector General's report, "An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division." Another taste:
Schlozman made statements boasting to others about using political and ideological affiliations in hiring for career Civil Rights attorney positions. One example is an e-mail dated January 6, 2004, from Schlozman to an attorney hired by Schlozman in the Division. Shortly after being hired, the attorney sent an e-mail to Schlozman expressing his happiness in the Special Litigation Section, noting that his “office is even next to a Federalist Society member.” Schlozman replied by e-mail, “Just between you and me, we hired another member of ‘the team’ yesterday. And still another ideological comrade will be starting in one month. So we are making progress.”
  I don't know if hiring a career attorney based on ideological considerations is actually illegal, if the employer believes that a particular ideology will better serve the government's interests than others. (The report suggests that ideology is a proxy for partisan affiliation, which is an illegal consideration, but this strikes me as highly implausible.) But legal issues aside, this was a terribly embarrassing and shameful period for DOJ, as I have written before. Looking forward, it will be interesting to see how the Obama Administration will respond. In particular, it will be interesting to see how many Republicans (if any) will be hired by the Civil Rights Division during Obama's tenure. Will the new Obama political appointees in the Civil Rights Division "plan to gerrymander all of those crazy cons" left over from the Bush years? Stay tuned.

  UPDATE: Table 2 of the report is particularly striking, as it lists the ideological orientation of the hires by Bradley Schlozman from 2003 -2006 based on their resumes. Of those who had an identifiable ideology, 63 were conservative and 2 were liberal. (Another 34 had no identifiable ideology from the resumes.) Wow, that's incredible. In the Clinton years, typical DOJ Civil Rights hiring would have been almost exactly the other way around.

Related Posts (on one page):

  1. More on the DOJ Civil Rights Division Hiring Report:
  2. “My tentative plans are to gerrymander all of those crazy libs right[] out of the section.":
67 Comments

Event Thursday on the Israel-Hamas Conflict Thursday at George Mason Law:

I thought the following announcement would be of interest to some of our D.C.-area readers. GMUSL is a five-minute walk from the Clarendon metro.

The George Mason Jewish Law Student Association and the Mason Law Republicans invite you to attend a panel discussion on the current conflict in Israel.

We invite you to attend, learn, and ask questions about the situation in Israel from our distinguished panel, consisting of:

Professor Jeremy Rabkin, George Mason Law School

Ariel Cohen, Heritage Foundation

Michael Ledeen, Foundation to Defend Democracy

Where: Rear Atrium, George Mason Law School (Directions available at http://www.law.gmu.edu/about/directions) When: Thursday, January 15 from 5:00-7:00 PM

Food and drinks will be served!

We will also be raising funds for Magen David Adom, which provides medical care to victims of terrorism in Israel.


BCS Declares Germany to be the Winner of WWII

This e-mail is making the rounds. I've seen it several places, so not quite clear who to give the hat tip to.

* * *

After determining the Big-12 championship game participants, the BCS computers were put to work on other major contests and today the BCS declared Germany to be the winner of World War II.

"Germany put together an incredible number of victories beginning with the annexation of Austria and the Sudetenland and continuing on into conference play with defeats of Poland, France, Norway, Sweden, Denmark, Belgium and the Netherlands. Their only losses came against the US and Russia; however considering their entire body of work--including an incredibly tough Strength of Schedule--our computers deemed them worthy of the #1 ranking."

Questioned about the #4 ranking of the United States the BCS commissioner stated "The US only had two major victories--Japan and Germany. The computer models, unlike humans, aren't influenced by head-to-head contests--they consider each contest to be only a single, equally-weighted event."

German Chancellor Adolf Hitler said "Yes, we lost to the US; but we defeated #2 ranked France in only 6 weeks." Herr Hitler has been criticized for seeking dramatic victories to earn 'style points' to enhance Germany's rankings. Hitler protested "Our contest with Poland was in doubt until the final day and the conditions in Norway were incredibly challenging and demanded the application of additional forces."

The French ranking has also come under scrutiny. The BCS commented " France had a single loss against Germany and following a preseason #1 ranking they only fell to #2."

Japan was ranked #3 with victories including Manchuria, Borneo and the Philippines.

* * *

Perhaps I'm biased as a Utah partisan, but seems about right to me ....

Related Posts (on one page):

  1. Why the Utah Utes Football Team Should be the National Champions:
  2. BCS Declares Germany to be the Winner of WWII
96 Comments

[Dora Costa and Matthew Kahn, guest-blogging, January 13, 2009 at 12:10am] Trackbacks
The Nobel Laureate Robert Fogel’s Union Army Sample

In our new Princeton University Press book, Heroes and Cowards: The Social Face of War, we examine the war experience for Union Army soldiers during the U.S Civil War. The meat of the book is based on a statistical analysis of a unique data base. In this post, we would like to provide some details about this data base.

Our book would not have been possible without a monumental data collection effort that first began in 1981, led by Robert Fogel, the 1993 Nobel Laureate in Economics. How do you construct a longitudinal dataset from disparate sources and from the free-form letters, affidavits, and other documents that constitute a soldier’s record in the National Archives? The data are publicly available here.

Beginning with one list of white volunteer units and one list of U.S. Colored Infantry Units, both sorted in random order, inputters collected basic descriptive information from the “Regimental Books” in the National Archives on all of the enlisted men in a company until the two samples consisted of roughly 1.6 percent of all whites (almost 6,000 men) and 1.6 percent of all blacks (almost 6,000 men) mustered into the Union Army. The men were then linked to their army records, stored in the National Archives. These records consist of compiled military service records and of cards containing medical records and vital statistics.

For example, John Nelson Cumbash of Company F, First Regiment USCI has a compiled military service record that consists of one company descriptive book card, one company muster-in roll card, fifteen company muster roll cards, one detachment muster-out roll card, and one company muster-out roll card. He has eight medical records cards. These record his enlistment, his promotion to sergeant and then his demotion, his absence on recruiting services, his hospitalizations for fever, exposure to cold, and chronic rheumatism, and his final muster-out. Linkage to the pension records (which constitute one of the most significant sources of health information on past populations) allows us to follow men until their deaths. John Nelson Cumbash’s pension file is roughly three-quarters of an inch thick. Beginning in 1887 he filed four unsuccessful pension applications until he received a pension in 1897 which he collected until his death from pneumonia in 1901. His widow Mary filed for a widow’s pension and much of the pension record details the investigation of her claim. Her claim was denied because she had not divorced her first husband before marrying John. Finally, linkage to pre- and post-war censuses provide snapshots of the soldier’s family and occupation at fixed points in time. From John Cumbash’s 1870 census record we learn that he was a waiter in a hotel, that his wife Sarah (his first wife) took in washing, and that he had two boys.

By randomly selecting Union War Companies and then conducting a 100% sample of all 100 men within each War Company, the Fogel data allows us to recreate each soldier’s 24 hour a day live and work community. Back then, there were no televisions or Internet or cars, your fellow soldiers were your world. Some soldiers fought in homogenous companies while others fought in diverse companies.

ChrisIowa (btw, did we mention that Iowa had few deserters?) asked us, “Why was there diversity in companies?” All regiments were formed locally. We examined Civil War diaries and letters to identify six sources of diversity within companies. The volunteer infantry regiments consisted of 10 companies, each containing roughly 100 men, commanded by a captain and two lieutenants, who were often volunteer officers drawn from state militias, men of political significance, or other prominent men in the community. At the beginning of the war, men would enlist with one or several friends but rarely with fifty. Once companies were full, they would take no more men, and friends would need to find another company or regiment. Men's eagerness to get to the front led them to pick regiments thought to be departing soon. And they quickly left regiments that were late in departing, even enlisting in the regiment of another state. Later in the war, when the new recruits were not so eager, men might enlist in a distant town to receive a large bounty, adding to company diversity.

Although a company was generally not replenished with new men when disease, military casualties, and desertions whittled down its numbers, some states added new recruits to existing regiments and regiments whose members' three year terms were up were reconstituted with veterans and new men. Finally, the need to travel to recruiting stations increased company diversity. Farmers and farmers' sons had to travel to town to enlist. Small towns could not raise an entire company, so their men would enlist elsewhere and do so only with a few friends. Commissioned officers were responsible for finding their own men and often had to scour the entire state to fill their regiments.

Statements in soldiers' diaries and letters indicate that they were thrown together with strangers. Amos Stearns, who enlisted with five of his friends, lamented ``Life in the army was very different from life at home. In one place we could choose our companions and those we wished to associate with, but in the army how different'' (Kent 1976: 214-5). One soldier wrote home, ``We have a remarkable civil and Religious company. . . . i think it is a providencial circumstance that I enlisted in this company for I hear that there is desperate wickedness in very regiments i came so near enlisting in'' (letter of David Close, Nov. 4, 1862, 126th Ohio Volunteer Infantry, Company D.

From today’s vantage point, the Fogel data set is extraordinary. Concern about identity theft and insurance companies using confidential information to cherry-pick healthy and low-risk patients would make it extremely difficult to build a similar dataset today. A researcher attempting to build an analogous data set for Vietnam veterans would need to obtain the consent of each man. But the types of individuals willing to grant permission would probably not be a random sample of the population. And, despite the well-publicized stories of men buying their way out of the draft, the white sample is representative of the Northern population of military age in terms of wealth and literacy rates. Only in World War II were service rates higher.

In our next two posts, we will discuss the key findings and hypotheses we tested using the military data base. Today a historian has reviewed our book in the Wall Street Journal.

10 Comments

Monday, January 12, 2009

Serving Process on the Chief Justice at His Home: The BLT has the scoop.
28 Comments

Praise for the New York Times:

Over my years of blogging, I've been highly critical of the N.Y. Times's coverage of a variety matters, not least its coverage of the 2006 Lebanon War (e.g.). I think it's therefore only sporting to acknowledge that I think the Times has been much better this time, and by better, I don't mean "overtly pro-Israel," but engaging in some real journalism that goes well beyond the position implicitly taken in '06 (see link above) that the essence of any war is the suffering it creates on each side while the war is going on. Here, for example, is a new story on Israelis' perspective on the war in Gaza. Unlike many such stories, it doesn't go out of its way to quote outliers. And here's a scene from a Gaza hospital from Friday's paper:

A car arrived with more patients. One was a 21-year-old man with shrapnel in his left leg who demanded quick treatment. He turned out to be a militant with Islamic Jihad. He was smiling a big smile.

Hurry, I must get back so I can keep fighting," he told the doctors.

He was told that there were more serious cases than his, that he needed to wait. But he insisted. "We are fighting the Israelis," he said. "When we fire we run, but they hit back so fast. We run into the houses to get away." He continued smiling.

"Why are you so happy?" this reporter asked. "Look around you."

A girl who looked about 18 screamed as a surgeon removed shrapnel from her leg. An elderly man was soaked in blood. A baby a few weeks old and slightly wounded looked around helplessly. A man lay with parts of his brain coming out. His family wailed at his side.

"Don't you see that these people are hurting?" the militant was asked.

"But I am from the people, too," he said, his smile incandescent. "They lost their loved ones as martyrs. They should be happy. I want to be a martyr, too."

What explains the Times's turnaround? I don't know, but perhaps criticism from bloggers and others played a role. Maybe the restrictions Israel has put on journalists going to Gaza has made it more difficult to serve as propaganda agensts for the other side (but then why has the Washington Post been so bad?). Or maybe it's just a reflection of my pet theory about the Times's Israel coverage: Anti-Israel activists tend to think the Times is pro-Israel, and pro-Israel activists tend to think the Times is hostile to Israel, for the same reason. The ideological tenor of the Times's Israel coverage is "Meretznik"--like the Israeli Meretz Party, the Times is Zionist (pro-Israel), but on the left-wing, extreme peacenik fringe of Zionism. Given that even most Meretzniks in Israel, like my own father-in-law, are strongly supportive of the Gaza war, it's perhaps not surprising that the Times is showing some sympathy.

59 Comments

ProPublica's dishonest defense its dishonest article:

My media column for the Saturday Rocky Mountain News, discussed gross misstatements of fact which had appeared in a November 13 article by ProPublica, an organization which supplies investigative articles for free to the mainstream media. A shorter version of that article had appeared in the November 17 Denver Post.

Today, ProPublica author Abrahm Lustgarten has written a defense of his article. He claims that my article is "indisputably misleading." Let's take a look at each of the three charges which I leveled at the ProPublica article.

1. I wrote:

The theme of the ProPublica article, headlined "Buried Secrets," is the natural gas industry's refusal to disclose a list of all chemicals which are injected into the ground in hydraulic fracturing. The article accurately characterizes the Colorado Oil and Gas Conservation Commission as the "most stringent" regulatory agency regarding hydraulic fracturing.

The COGCC promulgated its final draft rules on Nov. 7, before the Nov. 13 ProPublica article, and before its Nov. 17 appearance in the Post. The article misdescribes the new regulations, and, significantly, omits the fact that the commission's new disclosure rule is nearly identical to what the drilling company Halliburton proposed in its June testimony to the commission. Section 205 of the new regulations protects drillers' trade secrets about the precise chemical recipes, while mandating full disclosure when specifically needed by the state for health or environmental protection.
In the spring, the Colorado Oil and Gas Conservation Commission had proposed draft regulations which would have required natural gas drillers to disclose the exact recipes for the fluids which are injected into the ground in hydraulic fracturing. During summer hearings, the industry vehemently objected, and said that they would pull out of Colorado, rather than disclose their trade secrets. Lustgarten's article accurately describes this part of the story.

Then, according to Lustgarten:
In August, the industry struck a compromise by agreeing to reveal the chemicals in fracturing fluids to health officials and regulators — but the agreement applies only to chemicals stored in 50 gallon drums or larger. As a practical matter, drilling workers in Colorado and Wyoming said in interviews that the fluids are often kept in smaller quantities. That means at least some of the ingredients won't be disclosed.

"They’ll never get it," says Bruce Baizel, a Colorado attorney with the Oil and Gas Accountability Project, about the states’ quest for information. "Not unless they are willing to go through a lawsuit. When push comes to shove, Halliburton is there with its attorneys."
This is entirely wrong. Under section 205 of the the final draft rules, which were published on November, the reporting trigger is not 50 gallon drums, but whether an individual well site uses 500 more more pounds of a chemical product in a quarter. Significantly, fracking companies must disclose to the public the trade names of the fracking ingredients; moreover, whenever an environmental or health official needs information for a specific investigation, the companies must disclose the exact chemicals in their recipes, with the chemical list being treated a Confidential Business Information by the officials who receive the list. As a described in my article, the final rule is similar to what Halliburton proposed in its June 6, 2008 testimony.

Lustgarten's January 12 self-exculpation does not even mention his misdescription of the regulations, and does not attempt any rebuttal of my evidence that he falsely accused the natural gas industry of hiding "buried secrets" even though the industry had proposed a disclosure rule and the "most stringent" (Lustgarten's words) agency had adopted something very close to that rule.

2. A second issue is Lustgarten's bait and switch about data. The article includes an extensive discussion of a case in Sublette County, Wyoming, in which groundwater was alleged to have been contaminated by hydraulic fracturing, and in which the federal Bureau of Land Management determined that fracturing might be the cause. Lustgarten wrote:
The contamination in Sublette County is significant because it is the first to be documented by a federal agency, the U.S. Bureau of Land Management. But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania. In one case, a house exploded after hydraulic fracturing created underground passageways and methane seeped into the residential water supply. In other cases, the contamination occurred not from actual drilling below ground, but on the surface, where accidental spills and leaky tanks, trucks and waste pits allowed benzene and other chemicals to leach into streams, springs and water wells.

It is difficult to pinpoint the exact cause of each contamination, or measure its spread across the environment accurately, because the precise nature and concentrations of the chemicals used by industry are considered trade secrets.
In an e-mail to Lustgarten, I specifically asked him what he now calls "a precisely tailored question." I asked him for the documentation of his claim that there were over a thousand "documented" state and local cases of groundwater contamination from "hydraulic fracturing." ("where can the data be found which substantiate the fact about over a thousand documented cases of contamination from fracking in five states?") He responded by pointing to the Colorado and New Mexico agencies. ("The New Mexico Energy, Minerals and Natural Resources Department and the Colorado Oil and Gas Conservation Commission have together documented more than 1000 cases where water was contaminated by drilling activities.") I asked the Colorado and New Mexico agencies the same question I had asked Lustgarten, and the response was "zero" for Colorado; and that New Mexico has no such data.

Now, Lustgarten says that all along he was talking about any water contamination that resulted in any way from oil or gas drilling--such as leakage of chemicals from a waste pit on an oil-drilling site.

But that's not the question that I asked Lustgarten, and it's not what he wrote in his article. His article contrasts "the first to be documented by a federal agency" with "But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania." How many times do you think that any "federal agency" has "documented" groundwater contamination that resulted in any way from oil or natural gas drilling. If and only if the 2008 BLM case in Wyoming is the first and only case of such federal documentation can Lustgarten's defense of his article be true.

3. I also wrote that Lustgarten had falsely described a study by the Interstate Oil and Gas Compact Commission:
The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.

The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."
There are three comprehensive studies about hydraulic fracturing: a 2004 study by the EPA; a second, earlier, study about the same subject as the EPA study (groundwater safety as it relates to about hydraulic fracturing in coal methane beds); and the third study, mentioned above, by the Interstate Commission. My article mentioned and discussed only the third study.

Lustgarten writes:
The drilling industry, echoed by Kopel, cites three documents when asserting the environmental safety of hydraulic fracturing. They are a 2004 EPA study (PDF), a 2002 survey of state agencies (PDF) by the Interstate Oil and Gas Compact Commission and a similar survey in 1998 by the Ground Water Protection Council (PDF).

In its Nov. 13 article, ProPublica detailed flaws in the EPA study and reported that the two surveys were "anecdotal," meaning that they included none of the basic data required to qualify as a scientific study.
To say the least, that's an extremely idiosyncratic meaning of "anecdotal." The dictionary defines "anecdotal" as "based on personal observation, case study reports, or random investigations rather than systematic scientific evaluation."

"Anecdotal" is an accurate description of Lustgarten's article, which examines a few cases of alleged contamination. There's nothing wrong with anecdotal news stories. "Anecdotal" is not an accurate description of the Interstate Commission study, which has no anecdotes, and which collected decades of data from 28 state regulatory agencies.

Now, we find that Lustgarten apparently has his own definition of "anecdotal"--that is, something is "anecdotal" if does not include "the basic data required to qualify as a scientific study." Perhaps at some time Lustgarten will explain what basic data he thinks were lacking from the two studies. As a media critic, I would not have criticized him for offering plausible critiques of the studies. His article, however, did not contain any argument about what data he thought were missing, and his characterization of the studies as "anecdotal" was false and misleading--at least for readers who understand the word to mean what the dictionary says it means.

Today I received this e-mail from Mark Thiesse, a Wyoming groundwater regulator who is quoted in Lustgarten's original article:
I’d like to thank you for your recent editorial on the ProPublica article. I was one of the folks (I’m with the WY Dept of Env Quality) interviewed for this article by Mr. Lustgarten. I spent several hours on the phone and around a dozen follow up emails to try and help him write a factual article. Unfortunately he seemed to have his own agenda. The one error that was most blatant from my perspective was the "20 mile long plume" that he mentions. I must have told him 5 times that it was individual impacts to separate water wells due to water well drilling practices – not related to oil and gas drilling at all – but that did not make it into his article that way.
If you had to make an important decision, would you rely on the factual information in a ProPublica article? I have only studied one article from ProPublica in detail, but the organization's implausible efforts to defend the validity of a wildly inaccurate article would make me hestitate to rely on anything from ProPublica.

31 Comments

Proposition 8 Donor Maps,

for San Francisco, Salt Lake City, and Orange County, are now posted at EightMaps.com. Proposition 8, of course, was the proposition that amended the California Constitution to bar legal recognition of same-sex marriage. The map is built -- presumably automatically -- from the data reported by the California Secretary of State's office. (The site I linked to contains the committee id's, but if you click on the committee name, you'll see the individual contributors.) Many of the listed contributions are $50 or below.

I suspect this sort of technology may well make people much more reluctant to donate money to (or against) controversial propositions -- and may lead people to rethink whether the government should indeed mandate disclosure of such contributions, especially small contributions. In any case, I thought I'd note this.

I recognize that mentioning the site may exacerbate the problem that I describe, but it's also necessary for readers to understand what's going on. And the site has of course already gotten a good deal of attention from other places.

Finally, I should note that I think the organizers of the site have the First Amendment right to put it up, and I would oppose any attempts to outlaw such speech, or to make it civilly actionable. (For more on why even more dangerous speech should generally remain protected from government restriction, see here.) But the question is to what extent the government should make the creation of such maps easy, by making available information about ballot measure donors, including small donors.

197 Comments

The Case of the Stinky Juror:

A report on a recent Massachusetts appellate decision from Legal Blog Watch (Robert Ambrogi). Read the whole thing (which also points to the opinion), but let me quote the closing line: "The moral of the case: Justice may be blind, but it retains a healthy sense of smell."

Thanks to Victor Steinbok for the pointer.

19 Comments

Podcast on Patent Reform, with Federal Circuit Chief Judge Paul Michel and UCLA Prof. Doug Licthman:

Another excellent item from Doug's I/P Colloquium series.

1 Comments

Interpretation vs Construction in Heller: Larry Solum has a very important post today on Nelson Lund's new paper on the Heller case. Larry makes explicit what was implicit in my blog post on Saturday. The bulk of Justice Scalia's opinion is its original public meaning of the Second Amendment. The day after it was announced, I described Heller in the Wall Street Journal as "the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court." After ascertaining the meaning of text, the Court concludes that the DC gun ban violates the core of this provision. I stand by my effusive praise of the opinion and its holding. Later in the opinion, however, Justice Scalia briefly and in dicta offers a list of gun laws that he says the decision does not call into question. It is on this very brief part of the opinion that Nelson Lund focuses in his paper.

In his post, Barnett on Lund on Scalia: The Construction Zone and District of Columbia v. Heller, Larry Solum explains that Heller has this dualist quality because of the implicit distinction between constitutional "interpretation" and constitutional "construction." Here is how he summarizes these concepts:
We can use the following rough cut at a statement of the distinction:
Interpretation: The activity of determining the linguistic meaning (or semantic content) of a legal text.

Construction: The activity of translating the semantic content of a legal text into legal rules, paradigmatically in cases where the meaning of the text is vague.
The Heller majority reasons that a handgun ban infringes the core linguistic meaning of the operative clause of the Second Amendment. Indeed, that is exactly what the Court said in the following passage:
The portion of the District of Columbia ordinance that bans possession and carrying of handguns is a core case of infringement of the right to keep and bear arms. It is infringement, because a ban is the most extreme form of regulation and therefore is within the core meaning of "infringement."
But what about regulations that fall outside the "core"--we could use H.L.A. Hart's terminology and use the term "penumbra" to describe cases in which the semantic content (linguistic meaning) of the constitution is vague.

Originalist constitutional interpretation can only tell us what the constitution meant. If the original meaning was vague, then constitutional construction is required to provide some decision procedure (a supplementary rule, a balancing test, or something else) to permit the application of the vague provision to particular cases. When constitutional decisionmakers try to apply vague provisions to particular cases they are operating in what I have called the construction zone.
In a portion of his post that you should read for yourself, Solum identifies the potential vagueness in the original meaning of the terms "right," "keep," "bear," and "infringed"--each of which requires construction when a case arises in the penumbra of its meaning. He then concludes:
Once we appreciate the distinction between interpretation and construction, the seeming anomaly in Heller simply disappears. The holding in Heller resulted from interpretation--a gun ban is within the core prohibition of the Second Amendment. But there are many other questions, mentioned in various dicta in Heller, that are outside the core and hence which cannot be resolved by interpretation. Since the operative reasoning and hence the holding of Heller was limited to the core, Justice Scalia was correct when he said that "nothing in our opinion should be taken to cast doubt" on regulations that are outside the core. The constitutional status of those regulations must be resolved by work in the construction zone.
I think Solum is exactly right about this. Justice Scalia's originalist interpretation of the Second Amendment AND his application of that original public meaning to strike down the DC gun is powerful. The weakness of his opinion is confined to his failure to perceive that the other measures to which he refers in dicta would require constitutional construction that is not, strictly speaking, originalist. Lund intuits this when he says (as I quoted earlier):
The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the “original expectations” of the lawmakers.
Lund's acknowledgment of the need to move beyond originalist interpretation is praiseworthy, as is his implicit adoption of a Presumption of Liberty to fill the gap:
The approach most consistent with the original meaning of the Constitution would reverse Justice Breyer’s presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.
But because Lund does not explicitly acknowledge the crucial distinction between "interpretation" and "construction," I am not sure he fully appreciates the necessity of engaging in both sorts of activities, and the need to clearly identify and defend one's approach to construction. His adoption of a Presumption of Liberty to protect the "inherent" right of self-defense undermines his previous criticism of using the presumption to protect the other inherent "rights . . . retained by the people" to which the Ninth Amendment expressly refers--rights that are not to be "denied or disparaged"--as well as "the privileges or immunities of citizens of the United States" (of which the right to keep and bear arms is one).

Perhaps now that Lund has wrestled with this issue is the context of the right to keep and bear arms, and the inherent right of self defense, he may be more open to adopting a general Presumption of Liberty as a principle of constitutional construction than he was when reviewing Restoring the Lost Constitution where, following the lead of Keith Whittington, I employed the interpretation/construction distinction. I examine this distinction in greater detail in my new paper, The Misconceived Assumption About Constitutional Assumptions. But if you are seriously interested in Heller and originalism, you should really read Larry Solum's article, District of Columbia v. Heller and Originalism.

Update: Bad link to Larry Solum's blog post fixed.

Related Posts (on one page):

  1. Interpretation vs Construction:
  2. Interpretation vs Construction in Heller:
  3. Lund on Scalia in Heller:

Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:

A reader pointed me to an odd policy:

[A]ssistant district attorneys are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney. Any exception to this policy must be in writing and approved by the District Attorney.
And the applicant questionnaire asks the following questions:
1. Have you ever used, sold, or given away any illegal drugs? _________
2. Are you, or have you ever been, delinquent with respect to the filing of federal or state income tax returns? _________
3. Have you ever had a license to possess a firearm in this state or any other state? _________
4. Have you ever gambled illegally? _________
5. Have you ever been terminated from any employment? _________
6. Have you ever been convicted of a criminal offense? _________
7. Have you been convicted of any traffic violations? _________
8. Has any state ever suspended or revoked your driver’s license? _________
9. Have you ever declared bankruptcy? _________

To be sure, the questionnaire states, "NOTE: AN AFFIRMATIVE RESPONSE WILL NOT NECESSARILY SERVE, IN AND OF ITSELF, AS A DISQUALIFICATION FOR EMPLOYMENT," and at least as to some of these items that must surely be so: Consider the traffic violations question. Moreover, the government is surely free to ask about things that are not themselves illegal (such as declaring bankruptcy, or being terminated from a job) in case they reflect on the person's likely future job performance, or in case they might uncover other conduct that is illegal or that might reflect on the person's likely future job performance.

Still, the firearms question strikes me as something that one wouldn't expect to see in the company of the other questions. The other questions all deal either with misconduct, poor judgment, unreliability, or with something that is often — though not always — the result of misconduct, poor judgment, or unreliability (being terminated from a job or bankruptcy). Why is gun possession, especially licensed gun possession, of similar interest to the employer?

It also seems odd that the question focuses only on licensed possession, given that in many states one doesn't need a license to possess a firearm. I wonder whether that reflects a considered judgment that licensed possession is more relevant to the hiring decision than unlicensed possession, or just a lack of understanding of how guns are dealt with in much of the U.S.

In any case, this struck me as odd enough to note, and to ask further about. Does anyone happen to know the reasons for the policy? I e-mailed the office on the 5th about this, and they promptly acknowledged my message, but I haven't heard back from them yet on the substance; if I do, I'll pass along their response.

Thanks to Mike Guasco for the pointer.

UPDATE: I reposted this to fix a glitch with the comments; if you tried commenting on the original and couldn't, please try again.

Related Posts (on one page):

  1. Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?
  2. Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:
57 Comments

Amusing Math Problem, Which Even Lawyers Know Enough Math To Solve:

From Misha Lemeshko, via my friend Haym Hirsh. I'm not sure I rate it as highly as Lemeshko did, but it's worth checking out.

8809 = 6
7111 = 0
2172 = 0
6666 = 4
1111 = 0
3213 = 0
7662 = 2
9312 = 1
0000 = 4
2222 = 0
3333 = 0
5555 = 0
8193 = 3
8096 = 5
7777 = 0
9999 = 4
7756 = 1
6855 = 3
9881 = 5
5531 = 0
 
2581 = ?

The source page is apparently in Byelorussian, or so I'd guess: The text is not in Russian, the text is roughly intelligible by a Russian speaker, and the page is on a .by domain. I'm told the source page is in Russian, though with a heavy dose of slang.

31 Comments

Just Thought I'd Mention Again,

in the spirit of our friendly rivalry with Above the Law, that we have been nominated for Best Law Blog in the 2008 Weblog Awards, and voting is open until 5 pm Eastern Tuesday. Perhaps I shouldn't care enough to even mention this — and I really don't care that much, no, really, I don't, I don't — but for some reason I can't resist ....

13 Comments

Former U.S. Supreme Court Clerks Reflect on Their Clerkship Year: The clerks are a group of six former law clerks from 1951-52, and the reflections were offered in 2007 and (in one case) 2002 and were just published in the St. John's Law Review. Topics include the Steel Seizure Cases, Brown v. Board of Education, and the individual personalities on the Vinson Court.
2 Comments

The Dishonesty of Naomi Klein:

Her bestseller, The Shock Doctrine, has been subject to some withering critiques, some of which she attempts to rebut here. I don't have the time or interest to get deeply involved in this back and forth, but I did give in to the temptation to click on one of her links. She writes, "If you are concerned that I am exaggerating Friedman's support for the brutal regime of Augusto Pinochet, read a letter Friedman wrote to Pinochet."

Okay, I read the letter, dated April 21, 1975. The only sentence in the letter that can remotely be construed as support is when Friedman writes, "I know that your administration has taken important steps and plans further ones to reduce trade barriers and to liberalize trade, and that as a result Chile's true competitive advantage is better reflected in its trade today than for decades past. This is a great achievement." But surely encouraging sound economic policies is hardly the same as "supporting the brutal regime."

As Johan Norberg explains, Friedman was

in Chile for six days in March 1975 to give public lectures, invited by a private foundation. When he was there he also met once with Pinochet for around 45 minutes, and wrote him one letter afterwards, arguing for a plan to end hyperinflation and liberalize the economy. That was the same kind of advice Friedman gave to communist dictatorships like the Soviet Union, China, and Yugoslavia, yet nobody would claim he was a communist.

Norberg adds that Friedman "turned down two honorary degrees from Chilean universities that received government funding because he thought it could be interpreted as a support for the regime". Finally, Friedman wrote in 1975,

I approve of none of these authoritarian regimes—neither the Communist regimes of Russia and Yugoslavia nor the military juntas of Chile and Brazil. . . . I do not regard visiting any of them as an endorsement. . . . I do not regard giving advice on economic policy as immoral if the conditions seem to me to be such that economic improvement would contribute both to the well-being of the ordinary people and to the chance of movement toward a politically free society.

Klein herself is a great believer in "sanctioning, boycotting, and divesting" from countries that she doesn't like. Yet even she admits that this is a strategic decision, subject to cost-benefit analysis (thus she acknowledges that boycotting the U.S. and other nations for their policies in Iraq and elsewhere would be pointless). And it's the height of dishonesty to suggest that because Friedman gave economic advice in a letter to Pinochet, that somehow made him a supporter of Pinochet's "brutal regime."

63 Comments

The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm. Here's the discussion by Magistrate Judge James C. Francis IV (of the Southern District of New York) (some paragraph breaks added):

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release.... [But, given D.C. v. Heller, t]o the extent ... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest [for Due Process Clause purposes]. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.

Again, the next step in the analysis is to apply the Mathews v. Eldridge balancing test. The private interest at stake is paramount: the right to possess a firearm is constitutionally protected. In Heller, the Court made clear that there is no hierarchy of constitutional rights: "[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon." The remaining Mathews factors play out much as they did in the analysis of the curfew requirement.

First, there is a serious risk that, in the absence of an individualized determination, an accused person will wrongly be deprived of his Second Amendment rights. Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm. Second, providing the defendant with an opportunity to be heard with respect to the appropriateness of this condition would reduce the potential error rate without creating a significant burden. And, finally, the Government's interest in ensuring the safety of the community would not be undermined by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed bail condition.

Accordingly, the Adam Walsh Amendments [the name of the statute involved here -EV] violate due process by requiring that, as a condition of release on bail, an accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community. Because the Amendments do not permit an individualized determination, they are unconstitutional on their face. The Government's application to impose as a condition of bail that Mr. Arzberger not possess a firearm is therefore denied....

[Footnote:] The determination that the mandatory imposition of each of the conditions requested by the Government violates procedural due process does not preclude the Government from renewing its application provided that it is prepared to proffer a basis for requiring any or all of these conditions in Mr. Arzberger's particular circumstances.

This is formally a Due Process Clause holding, but it rests on a conclusion about the Second Amendment. Recall that the Due Process Clause (sometimes) entitles people to hearings only when there's a legally relevant factual dispute to be resolved. Persons "who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme," or are made relevant by the Constitution.

If Congress were constitutionally allowed to ban all gun possession by people who have been indicted for possessing child pornography, whether or not those people are found to pose a special risk of gun violence, then no hearing would be required. That's why the excerpt I quoted begins with the sentence "A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release." If Congress could categorically do this, then there'd be no factual issue to resolve at the hearing. All the evidence in the world that this person is unlikely to pose a danger of gun violence will be irrelevant under the statutory/constitutional scheme.

The hearing is required only because at least some such indictees still have the "constitutionally protected" "right to possess a firearm" — presumably those indictees as to whom "such a [no firearms] condition is reasonably necessary in [their] case[s] to secure the safety of the community," which is to say those who don't pose any special risk of misusing their guns. (I say "special risk" because obviously just the general risk that any gun owner may misuse his guns can't be enough: If it were, no hearing would be needed, since such a risk is present for everyone.)

In any case, this is an important decision, though just from a magistrate judge. For other cases in which the Second Amendment has been relied on in a claimant's favor, see here, here, and here. But none of these cases involved a holding that a gun control law was unconstitutional, even as applied to a particular claimant.

For other views on gun possession by indictees, see State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981) (upholding a categorical ban on gun possession by indictees, though noting that it imposes only a “temporary limitation,” with provision for relief “[s]hould the temporary limitation work an undue hardship upon the indicted party”), overruled on other grounds, State v. Frederick, 1989 WL 80493 (Ohio Ct. App.); State v. In, 18 P.3d 500, 503 (Utah. Ct. App. 2000) (also stating that such a ban is constitutional, but without a detailed explanation). Compare State v. Spiers, 79 P.3d 30, 34-35 (Wash. Ct. App. 2003) (ambiguous on whether a categorical ban on gun possession by certain kinds of indictees was constitutional, or on whether such a ban was constitutional when there was a finding that the indictee “poses substantial danger”).

Related Posts (on one page):

  1. Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
  2. The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:
43 Comments

[Dora Costa and Matthew Kahn, guest-blogging, January 12, 2009 at 2:02am] Trackbacks
An Overview of Heroes and Cowards: The Social Face of War

The recent Bernard Madoff Ponzi scheme debacle highlights that social networks can impose costs. In a series of articles, the New York Times has sketched how a group of insiders, mainly wealthy Jewish families from the New York region, sought to invest in Madoff’s investment fund. Trust in Madoff as a man may have reduced effort in conducting due diligence to investigate whether his returns were too good to be true.

Social networks also offer large benefits. Successful executives and academics network constantly. How much of the returns to attending an Ivy League university are due to access to valuable social networks rather than what one learns from leading professors? An Ivy League graduate named Caroline Kennedy may soon be named the U.S Senator from New York. Her family and social connections appear to distinguish her from other ambitious professional politicians seeking the same senate seat such as Carolyn Maloney.

The fundamental challenge for empirical social scientists who want to study the causes and consequences of social networks is to identify who is the same network and to collect data on important outcomes that could be plausibly affected by participating in a network. For the last seven years, we have focused on the causes and consequences of social networks in a distinctive setting: the U.S Civil War. 2009 is the 200th anniversary of Abraham Lincoln’s birth. What can we learn about social networks and social capital by studying the lives of enlisted men who fought for the Union Army?

In our new Princeton University Press book, Heroes and Cowards: The Social Face of War, we examine the war experience for Union Army soldiers. We weave a single narrative from the life histories of 41,000 Union Army soldiers, diaries and letters, and government documents. Our core questions are not those typically asked in a military history. When are men willing to sacrifice for the common good? What are the benefits to men of friendship? How do communities deal with betrayal? And what are the costs and benefits of being in a diverse community?

One summer we both read Robert Putnam's thought-provoking book Bowling Alone. We were fascinated by Putnam's account of the decline in American civic engagement over time. Putnam emphasized the growing popularity of television as a pivotal cause of the decline in social capital and community participation, but we wondered whether an unintended consequence of the rise of women working in the paid labor market was that PTAs and neighborhood associations lost their "volunteer army." We started to write a paper testing whether the rise in women's labor force participation explained the decline in residential community participation. To our surprise, we found little evidence supporting this claim. Instead, our analysis of long-run trends in volunteering, joining groups, and trust suggested that, all else equal, people who live in cities with more income inequality were less likely to be civically engaged. These results contributed to a growing literature in economics documenting the disturbing fact that people are less likely to be "good citizens" when they live in more diverse communities.

In the summer of 2001, we realized that the American Civil War provided the ideal "laboratory" for studying the costs and benefits of social networks. The setting was high stakes - roughly one out of every six Union Army soldiers died during the war. Unlike people in civilian life today, Union Army soldiers could not pick and choose their communities. For each of the 40,000 soldiers we observe key outcomes and choices. If a man deserts, if a man dies in a POW camp, if a man survives the war but chooses not to move back to his county of enlistment after the war, we observe each of these choices and outcomes. By studying how the probability of each of these outcomes varies as a function of individual solider attributes and the characteristics of the 100 men in his war community (his company), we quantify the role of social networks in a high stakes setting.

In our next post we will discuss our unique data set and why it is so difficult to create such a data set today.

14 Comments

Sunday, January 11, 2009

Search-and-Seizure Sentence of the Day: From Judge Gregory of the Fourth Circuit, after rejecting a defendant's claim that he had proved a reasonable expectation of privacy in an open field at least in part by being comfortable enough to urinate there:
[I]f Fourth Amendment protection were to be predicated upon where one felt comfortable enough to eliminate, our search and seizure jurisprudence would be turned on its head.
United States v. Vankesteren, n.1.

38 Comments

For the Birds:

For two weeks in a row, every NFL playoff game with a "bird team" was won by a bird team. The only bird team to lose last week (the Atlanta Falcons) lost to another bird team (the Arizona Cardinals), and all three bird teams (the Cardinals, Philadelphia Eagles and Baltimore Ravens) won this weekend as well. As an Eagles fan, I like this pattern, but it won't help next week when they play the Cardinals.

30 Comments

Blog Gets Scholarly Award:

One of my favorite blogs, Language Log, has received the Linguistic Society of America's Linguistics, Language, and the Public Award. The award, as I understand it, is basically for popularizing of scholarly work, an important task of any learned field. Past recipients have generally been book authors (including Steven Pinker), radio and television program producers, and radio commentators; I'm pleased to see that a blog has joined their august ranks.

If you're at all interested in linguistics, you should be reading Language Log; it's one of the few blogs that I read regularly.

12 Comments

Semi-:

A semicircle is smaller than a circle (that is, than a circle that's otherwise similar, which is to say that has the same radius). But what semiX is larger than the X itself?

82 Comments

Sunday Song Lyric: I returned from the AALS to an Ohio blanketed with snow -- about a foot in our front walk. This makes Fleet Foxes' "White Winter Hymnal" seem like an appropriate choice for this morning. Here are the lyrics:
I was following the pack
all swallowed in their coats
with scarves of red tied ’round their throats
to keep their little heads
from fallin’ in the snow
And I turned ’round and there you go
And, Michael, you would fall
and turn the white snow red as strawberries
in the summertime.
There's a discussion of the lyrics on Songmeanings and here's the video.
1 Comments