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Saturday, March 14, 2009

Still more on the Obama signing statement, plus the power to detain.

Ilya discusses Michael Stern's response to Strauss here. I agree that Strauss puts too much faith in a fluff ball of legalese. Here’s an earlier post from Ed Whelan that compares Obama’s statement with some of Bush’s. I also received a message from a former DOJ lawyer who says that Bush’s signing statements were no more scattershot than Clinton’s. In fact, I found that Bush issued on average two signing statements a year that did not specify the offending sections; Clinton issued on average one such signing statement per year. In any event, not much of a difference.

The larger point, which can be easily missed, is that the signing statement controversy, stirred up by then Boston Globe reporter Charlie Savage who was duly awarded a Pulitzer Prize for his efforts, always rested on misunderstanding and confusion. Signing statements have almost zero practical effect. Courts don’t care about them. If a former Bush administration official is ever hauled before court for torture, it will make absolutely no difference that Bush issued a signing statement that said a statute restricting torture will be interpreted so as not to interfere with the president’s commander in chief power. Whether such a statement existed or not, a court would consider the constitutional argument and either accept or reject it on the merits. Nor is it legally novel that a president might refuse to enforce a statute that he believes to be unconstitutional. Larry Tribe, to his credit, chided Savage for insinuating in a “news” article that only right-wing lunatics and rear-end-covering former Clinton executive branch lawyers could think otherwise. (Here is Savage’s walking-on-eggshells report on the Obama statement.)

The Bush administration did use the signing statement as a vehicle for advancing its views about presidential power. But its views about presidential power were formally the same as those of its predecessors—and as those of its successor, apparently. It did press those views farther in some respects—especially in the interrogation and wiretapping controversies—but it backed down in response to internal disagreement led by Jack Goldsmith. These (real) controversies about presidential power had virtually nothing to do with whether presidents should issue signing statements and how many statutes they should be permitted to challenge. It remains unclear whether Bush’s views on presidential power in the end were all that different from Clinton’s or, if they were, whether the differences would have had practical importance.

*** A note on “substantial.” The Obama administration has “distanced” itself from the Bush administration by saying that it has power to detain people who “substantially supported” Taliban or al-Qaida forces rather than people who (merely) “supported” those forces, and by dropping the term “enemy combatant” (henceforth, the term shall be “detainee”) from the executive’s lexicon. Many media outlets fell for this one (a “break” with the Bush administration!, they proclaimed), though not the more sophisticated journalists working for the Times, the Journal, and the Post, who correctly pointed out that change was cosmetic (hence the late Friday release).


"Rights":

I keep hearing people claim that only people can have "rights," and governments, states, and the like can't. Now if people want to argue that it would be better if the word "rights" were limited to the rights of individuals, I don't have that much to say about it. But the claim is often made about what the meaning of the word is, or what it was in the Good Old Days. (Often it's accompanied with the assertion that historically "power" has been used for what governments may do, and "right" has been reserved only for the entitlements of individuals relative to other individuals or the government.)

The trouble is that a historical matter, "right" has been used to describe a legal or moral entitlement, whether of individuals, states, countries, or other entities, throughout all of American history, and I suspect for much of British history before then. Consider, for instance, the Articles of Confederation:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States ... [and] regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated[.]

Consider Federalist No. 81, speaking of "of a pre-existing right of the State governments." Consider Jefferson's Opinion on the French Treaties, which spoke of the "rights of nations," a term that had been used at least since the late 1600s years (and quite possibly more, I just did a quick search for this) in English publications, including writers the Framers found highly influential, such as Cicero, Vattel, Grotius, and Algernon Sidney (the first three in translation). And consider the talk of The Rights of the British Colonies in the years before the Revolution.

So maybe it would have been better if "right" covered less territory, and were divided into different words along many dimensions -- negative vs. positive, individual vs. possessed by collective entities, legal vs. moral, asserted against individuals vs. asserted against the government. You could try to invent such words, though as with any proposals to change the language the battle will be uphill and very likely a losing one.

But I think we have to acknowledge that the actual meaning of "right" throughout American history, in legal discourse but also in political theory and moral discourse, has included the rights of nations, states, and I suspect many other entities.

82 Comments

Michael Stern Responds to Peter Strauss on Obama's First Signing Statement:

Co-blogger Eric Posner recently posted Peter Strauss' analysis of Barack Obama's first signing statement, which argues that Obama claimed less sweeping power to withhold information from Congress than did President Bush. Michael Stern, an expert on legal issues involving Congress, has now responded to Strauss here [HT: my colleague Nelson Lund]. Whether or not Stern succeeds in proving that Obama's position is as sweeping as Bush's was, he certainly does show that Obama's statement leaves a great deal of room for him to withhold information whenever the administration claims that the public interest might require it:

With regard to the Grassley Rider, Obama says “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Strauss claims that “[t]his is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at 'Congress.'” . . .

Strauss is simply wrong. Because the Grassley Rider is not a new provision, but has been included in annual appropriations measures since FY1997, one can compare Bush’s signing statements on this exact issue. For example, in a December 10, 2004 signing statement, Bush stated that he would construe the Grassley Rider “in a manner consistent with the President’s constitutional authority to withhold information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties.”

Like Obama, Bush purported to authorize the withholding only of certain categories of information. In reality, however, these categories are extremely broad. Indeed, if Bush had stopped after “deliberative processes of the Executive,” his statement would have arguably covered pretty much anything the executive wanted to withhold. As anyone who has performed congressional oversight will tell you, the deliberative process privilege can be and has been (not necessarily properly) used to withhold a great deal of information that the executive prefers not to share with Congress. The words “or the performance of the Executive’s constitutional duties” I translate as meaning “just in case there is something that we can’t justify withholding under deliberative process or other privilege, we will still withhold it if we think it appropriate to do so.”

How is Obama’s statement any different from Bush’s, though? Although it uses different phrases, it amounts to exactly the same thing. “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” If Obama had stopped at “properly privileged,” his statement would still cover anything under Bush’s foreign relations and national security categories (executive privilege) and Bush’s deliberative process category (deliberative process privilege). As a practical matter, this is enough to give the executive flexibility to withhold information in virtually all circumstances. (Needless to say, the word “properly” is meaningless because it is the executive that will decide what is “properly” privileged).

My own view is that both Bush and Obama's positions show insufficient respect for Congress' authority. If Obama's statement is an improvement over Bush's in this respect, it is at most a very marginal one. In practice, both statements seem to allow the administration to withhold information from Congress almost any time it wants to do so.

Related Posts (on one page):

  1. Michael Stern Responds to Peter Strauss on Obama's First Signing Statement:
  2. More on Obama’s signing statement.
  3. President Obama’s first signing statement.
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Let the Speculation Begin:

Is there going to be a Supreme Court opening this summer? Justice Ginsburg poured kerosene on the embers of speculation in a recent speech. The AP reports:

Justice Ruth Bader Ginsburg told law students there could be an opening on the Supreme Court soon but didn't hint at who might be leaving.

Ginsburg spoke Friday at New England Law's annual "Law Day."

In a question-and-answer session, she said the nine justices only take pictures together when a new member is added. She said: "We haven't had any of those for some time, but surely we will soon."

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Greens Object to "Science-based" Wolf Decision:

Interior Secretary Ken Salazar announced this week that he would not reverse the Bush Administration's decision to remove gray wolves in the northern Rockies from the endangered species list. The Washington Post reports on the resulting controversy:

The wolf proposal was published just weeks before Bush left office, then suspended under a broad directive by White House Chief of Staff Rahm Emanuel.

Interior spokeswoman Kendra Barkoff said Salazar had followed the unanimous recommendation of Fish and Wildlife Service scientists in setting the new policy, rather than letting political factors influence him. "This was a decision based on science," she said. . . .

"Making the decision to adopt the Bush administration's flawed delisting proposal the same week that the president pledged his commitment to the Endangered Species Act certainly calls into question whether the Interior Department was coordinating as closely as one would expect to have done with the White House," said Bob Irvin, senior vice president for conservation programs at the advocacy group Defenders of Wildlife. "This was a controversy that did not need to happen."

One House Democrat, who spoke on the condition of anonymity, framed it in even more blunt political terms. "I just don't see what this does for us," the lawmaker said. "Here we are alienating people who did the most -- who did a lot to help us in the last election."

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Stem Cells and Science (Policy) Fiction:

I've had a busy travel and writing week, so I did not have time to comment on President Obama's stem cell policy announcement and accompanying statement on the "restoration" of "scientific integrity to government decision-making." Fortunately, Charles Krauthammer wrote an excellent column on the announcement (even if he overdid his praise of President Bush). Here's a bit of it:

Obama's address was morally unserious in the extreme. It was populated, as his didactic discourses always are, with a forest of straw men. Such as his admonition that we must resist the "false choice between sound science and moral values." Yet, exactly 2 minutes and 12 seconds later he went on to declare that he would never open the door to the "use of cloning for human reproduction."

Does he not think that a cloned human would be of extraordinary scientific interest? And yet he banned it.

Is he so obtuse as not to see that he had just made a choice of ethics over science? . . . Obama did not even pretend to make the case why some practices are morally permissible and others not. . . .

Science has everything to say about what is possible. Science has nothing to say about what is permissible. Obama's pretense that he will "restore science to its rightful place" and make science, not ideology, dispositive in moral debates is yet more rhetorical sleight of hand — this time to abdicate decision-making and color his own ideological preferences as authentically "scientific."

Whether or not one agrees with the specifics of the President's new stem cell policy — Krauthammer, who found the Bush policy too restrictive, thinks the Obama policy too permissive with the use of federal funds — there is no defense of the accompanying science charade.

UPDATE: Scott Gotleib also has some advice for the Administration if it truly wants to encourage medical innovation.

Unveiling his stem-cell policy, Mr. Obama remarked that "Medical miracles do not happen simply by accident." They also, however, don't happen through federal funding alone. They require a thriving private-sector research enterprise. Pouring federal funds into basic research while at the same time blocking the path for its translation into human therapies is no way to advance medical innovation.

SECOND UPDATE: I also recommend this Prawfs post by Rick Garnett and this Prometheus post by Roger Pielke Jr.

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We Have No "Enemy Combatants":

The New York Times reports that the Obama Administration will no longer refer to those detained in Guantanamo as "enemy combatants."

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Friday, March 13, 2009

Americans Becoming Less Religious - But Not Necessarily Atheistic:

A lot of media attention (e.g. - here) has focused on the new American Religious Identification Survey of American's views on religion, which finds that 15% of Americans now say they have no religious affiliation, up from 8% in 1990.

Lack of religious affiliation doesn't necessarily imply atheism however. When asked whether they believe in God, only 2.3% of ARIS respondents said that "there is no such thing" as God. However, 5.7% said that they are "not sure," and 4.3% said that "there is no way to be sure." These two latter answers might be categorized as agnostic. Unfortunately, ARIS didn't ask this question in 1990, so we do not know whether the proportion of atheists and agnostics has increased since then.

The ARIS survey may underestimate the true prevalence of atheism. Because of widespread societal prejudice against atheists, some survey respondents might be hesitant to admit their atheism, even in an anonymous poll. We know from polls on other issues that survey respondents often hide their true beliefs when these conflict with perceived societal norms. I suspect that at least some of the people who gave agnostic responses are actually atheists.

The same may be true of some of the 12.1% who picked the answer stating that "There is a higher power, but no personal God." Ironically, this vague phrasing might be perfectly compatible with atheism, depending on how it is interpreted. Assuming that the "higher power" you believe in is not omnipotent, omniscient, or completely benevolent (the standard attributes of God as depicted by the major monotheistic religions), even the most convinced atheist could potentially choose this answer. For example, I consider myself an atheist in the sense that I believe that God as defined above almost certainly does not exist. However, I also think it's perfectly possible that there are extraterrestrial "higher powers" who are vastly more powerful than we are. UFO enthusiasts notwithstanding, I certainly don't believe that the existence of such superpowerful ETs has actually been demonstrated. But neither has anyone definitively proven that they don't exist.

UPDATE: Apparently, ARIS actually did give respondents the opportunity to identify themselves as "atheist" or "agnostic" on one of the other questions in the survey. Only 0.7% of respondents picked "atheist" and 0.9% chose "agnostic" (both numbers up slightly from 2001).

This result powerfully illuminates the social stigma attached to identifying as an atheist. More than two-thirds of the 2.3% of respondents who said that "there is no such thing" as God still didn't self-identify as atheist even though that is what they clearly are. Some of these people may simply be confused about the definition of the word "atheist;" but I doubt that is the main reason for the discrepancy between the two questions. Equally interesting, some 10% of respondents gave answers indicating that they are unsure about whether God exists or not, yet only 0.9% call themselves "agnostic." Here, respondent confusion may play a bigger role, since the term "agnostic" is probably less widely known than "atheist."

Related Posts (on one page):

  1. Is Atheist Activism Increasing?
  2. Americans Becoming Less Religious - But Not Necessarily Atheistic:
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Larry Summers Channels Gordon Gekko:

Obama economic adviser Larry Summers is sounding like Gordon Gekko these days, arguing that we need more "greed" to revive the economy (HT: Instapundit):

“In the past few years, we’ve seen too much greed and too little fear; too much spending and not enough saving; too much borrowing and not enough worrying,” Summers said Friday in a speech to the Brookings Institution. “Today, however, our problem is exactly the opposite.”

In remarks to a private dinner at the U.S. Chamber of Commerce on Wednesday, Summers was even blunter, according to an attendee: “Before, we had too much greed and too little fear. Now, we have too much fear and too little greed.”

It definitely reminds me of Gordon Gekko's famous "greed is good" speech from Wall Street, where he said that "greed — you mark my words — will not only save Teldar Paper, but that other malfunctioning corporation called the USA." However, Summers is wrong to suggest that American investors and corporations have lost too much of their greed. To the contrary, the constant lobbying of every interest group under the sun for more and more government bailout money suggests that they are just as greedy as ever. Even firms that have already received a hefty dose of handouts are lobbying for more. The problem, of course, is that their greedy impulses are being channeled into the unproductive activity of lobbying Congress for subsidies rather than into the development of more and better products for consumers.

In and of itself, greed is neither bad nor good. The key question is whether it is channeled towards socially beneficial activity that increases wealth and promotes economic growth or whether it is directed towards lobbying the government to take away money from one set of interest groups and direct it to another. At this point, it is often easier for corporations to satisfy their greed by lobbying for government funds than by engaging in productive activity. As Gordon Gekko put it in his speech, "[t]he new law of evolution in corporate America seems to be survival of the unfittest." Failing firms are using their very failures as justification for seeking bailouts.

It is also ironic that Summers cites an excess of "fear" as one of the main dangers facing the American economy. Ironic because the administration he serves has itself been stoking that fear in order to undercut opposition to its programs. As White House Chief of Staff Rahm Emanuel puts it, the crisis is "an opportunity to do things you could not do before . . . You never want a serious crisis to go to waste." An obvious corollary to this notion is that the "opportunity" will be even bigger the more "serious" people believe the crisis to be.

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A Vulture:

A vulture is flying south for the winter, but this year he decides to take an airplane.

The morning of the flight, the vulture shows up to the airport, but knowing that airplane food wouldn't be right for him, he brings a dead armadillo to snack on.

"Do you want me to check that for you?," asks the ticket clerk.

"No need," the vulture says, "it's carrion."

Prompted by an almost completely unrelated story (thanks to InstaPundit for the pointer).

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"Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds":

So reports Religion Clause (Prof. Howard Friedman), pointing to this decision.

Related Posts (on one page):

  1. "Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds":
  2. Michael Newdow Sues Over Religious Speech at Inauguration:
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Home Schooling and Child Custody:

The News & Observer (North Carolina) reports:

Wake District Court Judge Ned Mangum said on Friday that he will require Venessa Mills to enroll her children in a public school for the upcoming school year. The ruling came as part of an ongoing divorce case....

Thomas Mills, Venessa's husband, had raised concerns that the children would be sheltered in a home school instead of in a regular public school setting.

Mangum appeared to agree with Thomas Mills at last week's court hearing even as the judge said that home-schooling has "had a great benefit" for the children.

"I do think that in the interests of the children being well rounded that public school will be a great option for them," Mangum said during the court hearing. [Audio of that is available on the News & Observer site. -EV] ...

The Mills' three children, ages 12, 11 and 10, have been home-schooled by their mother since 2005. She said they have made noticeable academic improvement since then, with two of the children performing two grade levels above their ages.

WRAL (Raleigh) also reports:

In an affidavit filed Friday in the divorce case, ... Thomas Mills ... said he was "concerned about the children's religious-based science curriculum" and that he wants "the children to be exposed to mainstream science, even if they eventually choose to believe creationism over evolution." ...

In a verbal ruling, Mangum said the children should go to public school.

"He was upfront and said that, 'It's not about religion.' But yet when it came down to his ruling and reasons why, 'He said this would be a good opportunity for the children to be tested in the beliefs that I have taught them,'" Venessa Mills said....

Of course -- if the judge's oral statements are being accurately reported by Venessa Mills -- the same logic would apply to children who are taught at private schools that teach creationism: If one divorced parent objects to such teaching, the judge could order that the children be sent to noncreationist schools instead of creationist schools, or give custody to that parent who promises to send the children to such schools.

I should note that I would firmly oppose any judicial order interfering with the father's ability to expose the children to evolution when the children are visiting with him (assuming the mother is given custody and the father is given visitation). And I personally do think that it's more in a child's best interests to be taught evolution than to be taught creationism. I just don't think that the First Amendment allows judges to make decisions based on such matters, for reasons I mention in my Parent-Child Speech and Child Custody Speech Restrictions article.

For an earlier case suggesting -- in my view, wrongly -- that disfavoring the creationism-teaching parent is more legitimate in child custody cases, see Waites v. Waites, 567 S.W.2d 326, 333 (Mo. 1978) (suggesting that under “best interests” test court may consider whether parent “would refuse to permit the child to attend a school class where evolution is taught”). For lots of cases in which judges considered parents' religiosity, atheism, racism, Communism, pacifism, support for Nazism, advocacy of the propriety of homosexuality, condemnation of homosexuality, and more, see the article I cited above.

For more on child custody decisions and home schooling -- setting aside the creationism issue, which as I note could arise even when the child is taught in a religious school outside the home -- see these older posts.

Thanks to Patrick Martin and Robert Bell for the pointers.

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Can Politicians Keep Madoff's Contributions?

Looks like Madoff going to the clink is also going to mean the end of a serious money train for a lot of politicians according to this report by Open Secrets.

As recently as September 2008 he wrote a $25,000 check to the Democratic Senatorial Campaign Committee (see here).

Googling around I haven't been able to find any definitive report on whether recipients of his largesse will return the contribution. This story indicates that Congressman Markey will give away the equivalent to charity, but it seems unclear on many of the others.

An interesting legal question is whether even if the recipients, such as the DSCC, want to keep these funds whether they actually can. These contributions all look like classic fraudulent transfers. Under the Uniform Fraudulent Transfer Act section 5 a transfer is fraudulent if "if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation."

Clearly Madoff was insolvent at the time of these transfers in light of his contingent liabilities. Moreover, I can't see how a political donation could be seen to be anything but a transfer for less than "reasonably equivalent value" as that term traditionally has been defined.

Congress amended the bankruptcy laws a few years ago to protect transfers to charitable organizations but that wouldn't apply to political organizations.

So it seems to me that even if the politicians don't want to return these donations they likely are going to have to anyway, for the benefit of Madoff's creditors.

The statute of limitations for fraudulent transfers varies a lot from state-to-state but may be up to 6 years, in which case creditors (or Madoff's bankruptcy trustee) could reach back pretty far to recapture these donations.

Note also that under the law Markey may still be subject to having to give back the money Madoff contributed, even though he "gave" it away to charity. Although the charity would be protected, as the initial transferee Markey would not be protected.

New York law probably applies here and there may thus be some specific wrinkles that are different from this general discussion. For instance, my research indicates that New York may still be under the Uniform Fraudulent Conveyance Act. It also looks like New York law has a six year statute of limitations. This might change the details but not the general argument here. I would appreciate insights from any readers more familiar with New York fraudulent transfer law than I am.

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Econ4u.org:

While riding the Metro the other day I saw an ad for the website econ4u.org, which provides information on personal financial literacy.

The form of the ad is what caught my eye--it had a quiz and this was the question:

If faced with an unexpected cash need, which of these options will typically cost the most?

Bounce a check Get a short-term payday loan Initiate a wire transfer Pay credit card late fee

Please select an answer.

Those who take the quiz the answer correct 27% of the time. Regular readers here probably know the answer: .

Here's the explanation:

The site is sponsored by The Center for Economic and Entrepreneurial Literacy, which I don't know anything about. But the site looks like it has some useful personal finance information.

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Fun Law Review Article Title:

Is It Really Possible to Do the Kessel Run in Less than Twelve Parsecs and Should It Matter?. The subtitle is more informative but less fun, so I won't quote it.

By the way, I still recommend that article writers generally (though not always) avoid attempts at amusing article titles, but that doesn't mean I can't appreciate some of them when I see them.

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Is Geithner Even Worse Than Paulson?

It would be hard to imagine finding a Treasury Secretary worse than Hank Paulson. But there is a growing consensus in Washington that as bad as Paulson was, Timothy Geithner may be even more incompetent:

When they start making jokes about you, it's hard to recover. And that's what is happening now to Treasury Secretary Timothy Geithner.

It's not just "Saturday Night Live" poking fun at him -- you saw the skit depicting a Geithner so clueless that he offered a huge reward to anyone who called his hotline, 1-800-IDEAS, with a plan to get us out of the financial crisis. Beyond the TV shows, Geithner, who was confirmed despite having to pay $48,000 in back taxes and interest, is also the target of suppressed snickers on Capitol Hill whenever the subject turns to the IRS. And now, he is widely thought to be not up to the job.

The fundamental problem, of course, is that Geithner hasn't come up with a financial rescue plan. There is nearly unanimous agreement among economists and policymakers that the single most important thing the Secretary of the Treasury should do now is develop a plan to deal with the "toxic assets" that threaten the survival of financial institutions. But Geithner, who has been acutely aware of this problem for months, doesn't have such a plan. If he had, the comedians wouldn't be talking about 1-800-IDEAS.

The situation has gotten so bad that Geithner is the subject of private buyer's remorse from some of the very politicians who supported him. A number of senators voted to confirm Geithner, even with tax problems they deemed disqualifying, because they believed the financial crisis required immediate action. Now, with little happening, their feeling is: We put aside some very troubling concerns for this?

In Geithner's defense, at least some of his problems stem from problems at the top in terms of the failure of the President to make nominations and develop a coherent and workable approach to many of these financial markets problems.

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Judge Posner Chastises Prosecutor,

in an interesting case about salad dressing, of all things. Thanks to How Appealing for the pointer.

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Thursday, March 12, 2009

More on Obama’s signing statement.

Peter Strauss, the Columbia law professor, responds to my last post:

One element of this signing statement was the following:

Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Note the final, and very welcome reservation: “in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.” This is so much less of a reservation than President Bush (and his predecessors) asserted as to give hope that he is serious about transparency, and about taking the muzzle off government personnel. They would simply have ended the sentence at 'Congress.' Of course, the ABA position was overbroad; but I find hope for a good deal more discrimination in the use/content of signing statements here than you do.


"When and How Was the Jewish People Invented?"

Ha'aretz reports that a book of this title, written by Professor Shlomo Sand (Shlomo Zand), a Tel Aviv University history professor, has won a French journalism prize for the best non-fiction book of the year. The book will be published in English as "The Invention of the Jewish People." Ha'aretz previously reported the books's thesis:

The community of Jews in Spain sprang from Arabs who became Jews and arrived with the forces that captured Spain from the Christians, and from European-born individuals who had also become Jews.

The first Jews of Ashkenaz (Germany) did not come from the Land of Israel and did not reach Eastern Europe from Germany, but became Jews in the Khazar Kingdom in the Caucasus. Zand explains the origins of Yiddish culture: it was not a Jewish import from Germany, but the result of the connection between the offspring of the Kuzari and Germans who traveled to the East, some of them as merchants.

This is nonsense.

Two data points: (1) Linguists have found exactly no evidence that any words in Yiddish originated from the Caucasian Turkic language spoken by the Khazars, which obviously contradicts the notion that the Khazars contributed substantially to the Eastern European Jewish population, much less that Yiddish language and culture originated with the Khazars; and (2) When I lived in Ann Arbor, I had a conversation with one of the leading medical geneticists in the world, a non-Jewish physician. We discussed the "Ashkenazic" genetic mutations that carry particular diseases, and I pointed out that to the extent they require both parents to carry the gene, my children are safe, because my wife is an Iraqi Jew. The physician responded that many of the "Ashkenazic" mutations are also found in "Sephardim", though they are less prevalent. He added that genetic research shows that Ashkenazim and Sephardim have common genes going back 2,600 years. That was enough to cause me to ignore all subsequent claims about the Khazar origins of the Ashkenazim and whatnot that are based on anything beyond new genetic evidence. [Also, see this Wikipedia entry.]

Not surprisingly, Sand's work has a political agenda, according to Ha'aretz: "to promote the idea that Israel should be a 'state of all its citizens' - Jews, Arabs and others - in contrast to its declared identity as a 'Jewish and democratic' state."

I don't think that Zionism, etc., depends on whether Jews really have common genetic origins or not, anymore than Palestinian identity is any more or less real depending on whether, as some claim, a large percentage of "Palestinian Arabs" had immigrated rather recently from other countries in the Middle East. But I do think that manipulating history for ideological purposes is bad, and the French might reconsider whether this book is eligible for a nonfiction award.

UPDATE: Here's a lengthy review by Professor Israel Bartel of Hebrew University, which points out various tendentious, and inaccurate, aspects of Sand's book. Unfortunately, despite its length, the review fails to point out that the genetic and the linguistic evidence makes a mockery of Sand's thesis, which, in my mind, discredits the whole project.

FURTHER UPDATE: A reader points out via email, correctly, that the Jewish population of Spain, responding to persecution by their Christian rulers, generally sided with the Moslem conquerers. Given that the Jewish presence in Spain predated the Muslim conquest, it's hard to see how Spanish Jews could be all descendants of "Jewish Arabs" who arrived with the Muslim conquest (and it's hard to see how the Spanish Jews could have converted from Christianity if there were not other Jews in Spain to convert them). The reader recommends God's Crucible, by David Levering-Lewis, which he describes as "a history of the interaction between Muslim Spain and Christian France."


President Obama’s first signing statement.

Here. A few days ago, President Obama explained that he would issue such statements more responsibly and sparingly than Bush did. Bush used the same constitutional theories that Clinton, Bush I, and Reagan did; what was distinctive about President Bush’s practice was that he would frequently spew forth grapeshot claims that knocked out unidentified provisions of a bill (“everything that is inconsistent with my commander in chief power”), whereas Clinton tended to issue more targeted statements that identified a particular provision of concern, although he fired grapeshot as well. We see the same old Reagan/Bush/Clinton/Bush theories in Obama’s first statement (including our old pal, the commander in chief power), and we even see the grapeshot approach in the first (“Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H,”), fourth (“Numerous provisions of the legislation”), and fifth bullet points. Bush challenged many more statutory provisions than Clinton did (but both of them challenged an infinitesimal fraction of the entire legislative output of Congress during their administrations), but because he cited the same clauses of the Constitution, it was hard to tell whether the difference between the two was that Bush had a more aggressive theory of presidential power or that he merely applied existing theories more consistently.

The signing statement controversy was phony. People had legitimate complaints about the Bush administration’s theories of presidential power, but the media couldn’t understand the issues, and so preferred to talk about how many signing statements each president issued. I discus all this here.

Back in 2006 an ABA task force issued a report that “opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress.” Will it mount the ramparts yet again? Or are its members too busy trying to find jobs in the Obama administration?


The ACLU and Religious Accommodations:

The Investor's Business Daily editorial that I mention in my post below on religious accommodations also specially faults the ACLU for declining to object to such accommodations:

Minnesota is offering a program to Muslims who want to buy a home but don't want to break their religion's laws about interest. Where are the civil libertarians who want to keep church and state separated?

The Minnesota program, the first in the nation, will be administered by the state's housing agency, which will buy homes, with taxpayers' dollars, and resell them at higher prices to Muslim buyers.

To circumvent Islamic Shariah law, which, we're told, forbids Muslims from buying or selling loans that charge interest, the transaction will have higher up-front costs, including the amount of interest that would have been charged over the life of the loan.

This is a clear mixing of religion and state, which runs afoul of the Constitution and should incite the American Civil Liberties Union to launch a complaint and file a lawsuit. Yet we've seen no word from the group that recently filed a lawsuit against a Muslim, mosque-based charter school that takes public funds.

Is the organization acting cautiously, afraid to anger a group whose more enraged members have gained a reputation for taking advantage of our politically correct culture and bullying officials to get their way? Have ACLU leaders lost their nerve, fearful activists will target them? They've already seen Minnesota officials, who, when pushed by activists demanding preferential treatment for Muslims, agreed to provide foot-washing facilities on the campuses of several universities.

Surely if the Minnesota home-buying program -- called Murabaha financing -- were reserved for only Christians or Jews, the ACLU would have roared by now.

But it hasn't....

I'm generally skeptical about claims that some group is being inconsistent or untrue to its principles, or that had this or that been different the group would surely have complained. This is especially so because such claims are often made by people who appear to have little sympathy with the group and thus little knowledge of the group's underlying reasoning. I can't be sure of that as to the IBD -- for all I know the editorial might have been written by someone who is well acquainted with the ACLU's perspective on the Religion Clauses -- but it seems likely.

The Justices who are among the ACLU's greatest heroes -- Justices Brennan, Marshall, and Blackmun -- had long taken a view that strongly supports many kinds of religious accommodations. Consider Justice Brennan's opinion in Sherbert v. Verner, the 1963 case that mandates religious exemptions for Sabbatarians from requirements that unemployment compensation claimants be available to work Saturdays. Consider the three Justices' dissent from Employment Division v. Smith, which held that religious exemptions are generally not mandated by the Free Exercise Clause, and in particular that religious peyote users weren't entitled to exemptions from peyote laws. Or consider a range of other votes cast by these Justices in favor of exemptions for the Amish, Jews, Sunday-observer Christians, American Indian religious groups, and others.

The ACLU has likewise long supported such accommodations. Of course it's harder to evaluate its record on this since it is not as visible as the Justices', and is necessarily more mixed because individual chapters generally make their own litigation decisions. But it's safe to say, I think, that religious exemptions for religious observers have often been an ACLU issue just as they have been a Brennan, Marshall, and Blackmun issue.

To be sure, there have been two major limits on such support, both from the ACLU and these three liberal Justices. First, the liberal Justices and the ACLU have viewed the Establishment Clause as barring even many forms of evenhanded aid that end up in the hands of religious institutions -- for instance, school aid programs that equally benefit public schools, private secular schools, and private religious schools. Their premise has been that government funds generally can't go even indirectly, and even as part of an evenhanded program, to the teaching of religious views (except in ill-defined contexts; I disapprove of this view, but here I am just trying to describe it). So even though school choice programs may well be defended as accommodations of religious objectors to public secular schooling, the Justices and the ACLU would have rejected them. But this isn't in play in the Minnesota case, because no government is money is going to be used by religious institutions for the teaching of religious doctrine. (If anything, Sherbert involved more of an financial benefit to religion than this case does.)

Second, any regime of exemptions for religious observers has to be only a presumption in favor of exemptions, and only a weak presumption at that: Clearly sometimes the exemptions must be denied, for instance as to murder laws, trespass laws, most tax laws, and a vast range of other contexts. Naturally, one's view about when there's a sufficiently "compelling" interest to justify an exemption varies depending on one's ideology. My guess is that the ACLU, for instance, has on balance been skeptical of claims for religious exemption from many antidiscrimination laws, because they view the interest in preventing discrimination as almost always "compelling." But again there's no reason to expect the ACLU to be skeptical here.

So the ACLU, and what one might call the ACLU-friendly wing of the Court -- Justices Brennan, Marshall, and Blackmun (I speak especially of the later Blackmun, rather than Blackmun in his early, fairly conservative years) -- have broadly supported religious exemptions, at least where no funding to religious institutions or schools is involved, and no very strong government interests for denying the exemptions have been present. There's nothing surprising or cowardly or unduly favorable to Muslims over Christians or Jews in the ACLU's stance.

The ACLU and the ACLU-friendly Justices may well have been wrong in their Religion Clauses views. (I actually opposed both much of their Establishment Clause thinking as to evenhanded aid programs and their Free Exercise Clause support for constitutionally mandated exemptions from generally applicable laws.) But there's no reason in this case, I think, to fault them for supposed inconsistency with their own perspectives.

Related Posts (on one page):

  1. The ACLU and Religious Accommodations:
  2. Religious Accommodations:
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Religious Accommodations:

Investor's Business Daily writes:

Minnesota is offering a program to Muslims who want to buy a home but don't want to break their religion's laws about interest....

The Minnesota program, the first in the nation, will be administered by the state's housing agency, which will buy homes, with taxpayers' dollars, and resell them at higher prices to Muslim buyers.

To circumvent Islamic Shariah law, which, we're told, forbids Muslims from buying or selling loans that charge interest, the transaction will have higher up-front costs, including the amount of interest that would have been charged over the life of the loan.

This is a clear mixing of religion and state, which runs afoul of the Constitution ....

[Are potential opponents of the proposal] afraid to anger a group whose more enraged members have gained a reputation for taking advantage of our politically correct culture and bullying officials to get their way? ... [Are they] fearful activists will target them? They've already seen Minnesota officials, who, when pushed by activists demanding preferential treatment for Muslims, agreed to provide foot-washing facilities on the campuses of several universities.

It's not within the legitimate duties of government to ensure that members of certain religions can buy homes....

I think IBD is wrong about this (and about its criticism of the ACLU on this, more on which in a separate point). Here's why.

The government routinely faces situations where certain government benefits are set up in ways that keep certain religious groups from taking advantage of them. Often it's too burdensome or expensive to restructure the benefit to accommodate those groups. But often it is possible, and when it is possible, I think it's eminently proper for the government to do so. And it is certainly routinely done for groups other than Muslims, so the implication that Muslims are getting special treatment because of modern "political[] correct[ness]" strikes me as quite unsupported.

1. Let's look at a very simple scenario: Imagine that a government office runs a cafeteria for employees, and imagine that it is always careful to provide some pork-free dishes for its Jewish employees, and some vegetarian dishes for Buddhist employees and some Jews who will only eat vegetarian dishes in nonkosher establishments. (Obviously some Jews won't eat anything in nonkosher establishments, but I know some Jews who will eat vegetarian dishes.)

This makes sense for the government, since it keeps its employees happy. It makes sense for the employees. And it imposes little burden on anyone. Of course, if it was a matter of buying wholly kosher food just in case the one observant Jewish employee wanted to eat it, and the food cost more, used up shelf space, and often got thrown out uneaten, the analysis might be different. But when there are a considerable number of people who are helped by this program, it should be perfectly acceptable. (I should note that some nonreligious vegetarians -- or for that matter nonvegetarian vegetable lovers -- might enjoy having the vegetarian dishes as well, but I don't think this affects the analysis.)

2. Or consider another common scenario: The government offers people a job, but requires employees to follow various rules. If the rules are important to the job, it may be sensible to require everyone to follow them. But if the rules are peripheral -- for instance, a no-headgear rule, or a rule requiring everyone, including women, to wear pants, where there is no safety reason for the requirement -- it makes sense that the government would create an accommodation, for instance for men who want to wear yarmulkes, or for women who feel it wrong for women to wear pants. Federal antidiscrimination law requires such accommodations when they are not burdensome, both for private and public employers. But whatever you think of that, I think it's quite proper for an employer to make such accommodations.

3. Likewise, unemployment benefits are generally available only for people who are willing to take reasonable job options that they are offered. This would sometimes mean that Sabbatarians, such as Seventh-Day Adventists and Orthodox Jews, would lose unemployment benefits because they wouldn't take offered jobs that required them to work Saturdays. In 1963, the Supreme Court held (in Sherbert v. Verner) that Sabbatarians had to be exempted from those requirements. I don't think Sherbert was correct, at least as to its most expansive reasoning, and I think there may be good reasons to deny Sabbatarians such an exemption, which does give them something of an advantage over others. But the existence of this principle illustrates that religious accommodations began long before there were Muslim claimants, and that Muslims are asking for accommodations that are not far different from those that other religious groups have gotten.

4. On to this particular proposal: As best I can tell, the financing option is available to everyone, not just Muslims; it's just that Muslims will find it useful and others won't. Moreover, nothing I've seen suggests that Muslims are getting a significant secular benefit here, such as lower aggregate rates.

If I'm right on this, then what we have here is much like the pork-free food option in the cafeteria line, or a break from no-headgear requirements (though even less troublesome than such a break, because it's available to everyone, not just religious objectors). The government set up a general program that it was hoping lots of people could take advantage of. To its surprise, some people have a religious objection to the program, and thus can't benefit from it. Fortunately, it's pretty cheap to slightly tweak the program in a way that doesn't undermine its core purposes, and that doesn't materially burden other beneficiaries or the taxpayers, but that lets religious objectors -- here Muslims, but in other contexts Jews, Christians, Buddhists, and others -- fully participate in the program.

That is the extension of a generally worthy American tradition -- Muslims getting roughly similar religious accommodations that other religious groups have long gotten. It is not some rare departure from "separat[ion]" of "church and state" explainable only by modern political correctness and the supposed rage of a particular group.

Related Posts (on one page):

  1. The ACLU and Religious Accommodations:
  2. Religious Accommodations:
69 Comments

Broadest (Possibly Inadvertent) Gun Ban in the Country?

I ran across this while researching a different matter; it's § 54-211(a) of the Village Code of New Lenox, Illinois, on the outskirts of Chicago (emphasis added):

(1) It shall be unlawful for anyone to do any of the following acts within the corporate limits of the village:

a. Hunt, with or without the aid of a weapon or other device, any animal.

b. Trap, with or without the aid of a trap or other device, any animal.

c. Possess or display any loaded weapon.

(2) For purposes of this section, the term "weapon" shall mean any BB gun, pellet gun, firearm, pistol, revolver, rifle, shotgun, stun gun, taser, slingshot or bow and arrow.

720 Ill. Comp. Stat. Ann. 5/24-10 does expressly provide that "It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another ... when on his or her land or in his or her abode or fixed place of business." But mere home possession for possible future self-defense purposes is not a defense. Presumably one has to keep the gun constantly unloaded until one is faced with a situation where "he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." (720 Ill. Comp. Stat. Ann. 5/7-1.) There are exceptions for possession by various law enforcement officials and security guards, but not for ordinary citizens. Nor is the law limited to possession in a public place.

The provision is in a section titled "hunting and trapping," so it may well be that the village didn't intend to ban all possession of loaded weapons. But the Illinois rule appears to be that, though the title may provide part of the context for interpreting a statute, “'If the meaning of any particular phrase or section [,] standing alone[,] is clear[,] no other section or part of the act [including the heading] may be applied to create doubt.' Reading a provision in context does not give one a license to disregard the clear language of the provision itself.” Illinois Bell Telephone Co. v. Illinois Commerce Comm'n, 840 N.E.2d 704, 712 (Ill. Ct. App. 2005).

Fortunately, the penalty is a fine of $25 to $750, but the crime is a misdemeanor, which might well have other indirect legal effects (e.g., to enhance future sentences for other crimes on the grounds that the person has a criminal record). Washington, D.C. had a similar ban on possession of a loaded firearm, which possibly did not have an imminent self-defense exception, but it was repealed in the wake of D.C. v. Heller.

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Religious Denominations That Forbid (or Frown on) Deadly Self-Defense, But Allow Non-Deadly Self-Defense:

I'm looking for good sources that discuss whether there are religious groups that

  1. take the view that deadly force is always bad, even in self-defense or defense of others, but nondeadly force (including pepper spray, stun guns, and other devices that are extremely unlikely to kill) is permissible, or

  2. take the view that given the choice between nondeadly force and deadly force, one should always use nondeadly force, unless the nondeadly force is very likely to fail (e.g., all one has for nondeadly force is fists vs. an attacker's knife).

I would think that many denominations do take one or the other view, for instance because they take "thou shalt not kill" (as opposed to "thou shalt not murder") quite seriously, but don't go for a thoroughgoing "turn the other cheek" renunciation of all violence. But I'd like to see more concrete statements, if possible, from groups that indeed take such a view.

I realize that stun guns and pepper spray may not have gotten a great deal of specific attention from theologians, but I would think that there would have been something written on this broad subject of just what kinds of violence are appropriate even to those who frown on deadly self-defense. If any of you have some pointers, I'd love to see them. Thanks!

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Wednesday, March 11, 2009

Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice:

The case is In re Fahy (Cal. Bar Ct.); here's an excerpt from an affidavit signed by the lawyer to support a motion for a new trial:

I was convinced from the outset [of the medical malpractice trial] that [the defendant] had violated the standard of care in his care and treatment of the [p]laintiff.... During the trial that was supposed to last only 2-3 weeks, I maintained a busy law practice. As the trial continued into its 4th week, problems at work continued to mount as most of the day was devoted to my being a juror. Deliberations were a nightmare.... It was becoming very apparent that even if the other jurors were to vote in favor of the [p]laintiff on the issue of liability, that lengthy discussion would take place on other issues ...

As a result, I advised my fellow jurors that I would change my vote if Judge Ballati failed to declare a mistrial after he was advised that the jury was deadlocked because there was no way I could afford to spend another week away from the office ...

When I arrived on Monday, I changed my vote to favor [the defendant] even though he was liable for what happened to the [p]laintiff. I changed my vote so that the deliberations would finally come to an end and I could return to the office....

The court's legal conclusion:

[T]he harm to the parties and to the fair administration of justice is clear and serious when respondent disregarded his duty to vote as the facts and judge's instructions guided him, and instead voted as the convenience of his law practice swayed. To be sure, jury service for busy citizens of all occupations or with family responsibilities can be difficult, even burdensome, at times. Yet it is the accepted duty of citizens to serve, subject to the statutory provision for excuse for undue hardship. Moreover, the Judicial Council has recognized that jury service is an “important civic responsibility,” requiring court and staff use of all necessary and appropriate means to ensure that citizens fulfill this duty. Surely, respondent, as a practicing attorney at the time, was keenly aware of the role which an effective jury system serves in the fair administration of justice.

Respondent's violation was not a technical one. As the Court of Appeal and the State Bar Court hearing judge each found, respondent's vote was decisive in breaking the jury's deadlock. Patently, his change of vote to avoid continuing to serve as a juror voided the verdict he rendered and required the parties, their counsel and the courts to bear the additional costs, time and burdens of appellate and further trial court proceedings.

Because of this misconduct, because of Fahy's apparently deceitful responses to the court when questioned about this, and because of Fahy's recent disciplinary record, and because of Fahy's lack of acceptance of responsibility, he was disbarred. For more, see this S.F. Recorder article.

Of course, if Fahy had only remained quiet about his true motivation (something he initially revealed to his fellow jurors during deliberation) he would have gotten off scot-free (though that of course does not excuse his behavior).

Related Posts (on one page):

  1. More on Vote-Changing To Free Jurors from a Long Trial:
  2. Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice:
116 Comments

Good To Hear:

From MEMRI, which is certainly not soft on Islamic extremism:

Scandinavian Islamic Groups Distance Themselves from Sheikh Yousef Al-Qaradhawi, Following MEMRI Translation of His Statements on Al-Jazeera TV Calling Holocaust "Divine Punishment" For Jews," Warning "Allah Willing, The Next Time Will Be At The Hand of the Believers"

In response to MEMRI TV's February 1, 2009 release of a translated and subtitled clip capturing prominent Sunni sheikh Yousef Al-Qaradhawi on Al-Jazeera TV in January 2009 calling the Holocaust "divine punishment" for the Jews and warning that "Allah willing, the next time will be at the hand of the believers [i.e. Muslims]," [1] and also saying that he would "shoot Allah's enemies, the Jews," [2] it was reported that Muslim Imams and Islamic groups in Scandinavia have distanced themselves from the remarks and are questioning association with Al-Qaradhawi...

On February 16, the Norwegian newspapers Dagbladet and Aftenpost reported that the Islamic Council of Norway had, on that same date, denounced Sheikh Al-Qaradhawi's statements on Al-Jazeera TV as "unacceptable." ...

Dagbladet quoted Kobilica as saying, "If it's [like this] that Yusuf Al-Qaradhawi honors the Holocaust, I think it's unacceptable from somebody who is an important religious reference for many Muslims. The Islamic Council of Norway will take up this issue with other scholars who sit in the European Council for Fatwa and Research." ...

DPE reported, also on February 16, that other Islamic leaders in Scandinavia had also distanced themselves from Al-Qaradhawi's comments, including Danish Imam Abdul Wahid Pedersen. It said that Pederson had told the Danish news agency Ritzau that he did not support Al-Qaradhawi's view and that this view could not be justified by the debate on the recent Israel-Hamas war in Gaza....

On February 16, 2009, the Swedish newspaper Dagens Nyheter reported that Swedish and Norwegian Muslims were distancing themselves from Sheikh Al-Qaradhawi. The paper said that Swedish Muslim Council chairman Mahmoud Aldebe said that it was a sensitive question when many European Muslims look up to Al-Qaradhawi as a person but want nothing to do with these statements, and that Muslims can see the difference between Jews as a people and Israel as a state.

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Best of Luck to Ted Cruz: Back in 2007 I was invited to judge a moot court for Ted Cruz at the University of Texas to help prepare him for his Supreme Court argument in Medellín v. Texas. He not only used the moot court effectively, he also turned it into an excellent teaching exercise for the students who attended. Having participated in his preparation, I made it a point to attend his Supreme Court argument the following week. He was very very impressive. From my other dealings with him, I can also testify that he is a reasonable and gracious person. I wish him all the best in his run for Texas AG. Texans would be lucky to have him in that job.

Speech Tomorrow in San Diego, CA: at 12:15 p.m. tomorrow, I am giving a noon-time talk on "Was Lochner Right? Natural Rights and the Fourteenth Amendment," sponsored by the Federalist Society Chapter at California Western School of Law in the Roy Bell Reading Room. The address is 350 Cedar Street San Diego, CA 92101.

Remaining speeches in March:
Tuesday, March 24th @ noon: Georgetown Law
Thursday, March 26th @ 5 p.m.: George Mason Law
Monday, March 30th @ noon: UNC Chapel Hill
Tuesday, March 31st @ noon: Duke

More on Ted Cruz's Run for Texas Attorney General:

Chris Geidner: "He is a conservative, it’s true. But he’s a very smart conservative, having gone to Harvard Law School and clerked for Fourth Circuit Judge J. Michael Luttig and former Chief Justice William Rehnquist." I agree with all of that, except the "But."

Related Posts (on one page):

  1. Jay Nordlinger (at National Review Online)
  2. Best of Luck to Ted Cruz:
  3. More on Ted Cruz's Run for Texas Attorney General:
  4. Ted Cruz:
  5. Ted Cruz:
23 Comments

An Odd Sort of Gun Control Proposal:

Tennessee House Bill 1924, proposed by Rep. Henry Fincher:

(a) This section shall be known and may be cited as the “Second Amendment Protection Act”

(b) As used in this section, “microstamped” means the technology by which a laser or other device is used to make precise, microscopic engravings on the internal mechanisms of a firearm for the purpose of ballistic imprinting, such as the firing pin, breech face or other internal mechanism, or the casing of a cartridge, so that when the firearm is fired, information identifying the make, model and serial number of the firearm, or the purchaser of the ammunition, is stamped on the discharged cartridge case and can then be matched to a specific firearm, purchaser or purchaser of ammunition.

(c) It is a [misdeamanor] offense for a person licensed as a firearm dealer under 18 U.S.C. § 923, to transfer, sell, deliver, or offer for sale, delivery or transfer, in this state any new firearm, as defined in § 39-11-106, or any firearm ammunition knowing that the firearm or ammunition has been microstamped.

(d) The owner of a firearm or firearm ammunition lawfully acquired may have such firearm or ammunition microstamped provided it was not originally sold in a microstamped condition in this state.

So a gun dealer chooses to sell a microstamped gun, and a gun buyer is perfectly willing to buy it, and that's a crime? I don't think that microstamping mandates are likely to do much good, but I see little justification for banning the sale of microstamped guns or ammunition (as opposed to not mandating such sale).

I should note that I don't think that either microstamping bans or microstamping mandates violate the right to keep and bear arms for self-defense. (I haven't thought enough about the right to keep and bear arms for other purposes to opine confidently on that, though I suspect that they don't violate such a right, either.) But I don't see a law controlling microstamped guns as sensible or just.

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Promise Written in Blood

still not a binding contract, when the legal requirement of consideration is absent. No word on whether saying "cross my heart, hope to die, stick a needle in my eye" would have changed the analysis.

Thanks to How Appealing for the pointer.

30 Comments

Dutch Court Apparently Rules That Harsh Criticism of Religion Isn't a Crime If Adherents Aren't Expressly Mentioned:

I can't be sure, because I haven't seen an English translation of the full decision (please let me know if you have one), but here's the report from the NRC Handelsblad newspaper's Web site:

"Stop the tumour that is Islam" is not an insult to a group on the basis of its religion, the Dutch high court ruled on Tuesday. An activist from the southern town of Valkenswaard ... has been acquitted of the charge [of insulting a group on the basis of its religion, the Dutch high court ruled on Tuesday]

The man from Valkenswaard had hung [a] poster after the 2004 murder of Dutch filmmaker Theo van Gogh by a Muslim extremist [that said]: "Stop the tumour that is Islam. Theo has died for us. Who will be next? Resist now! National Alliance, we will not bow down to Allah. Join now." ...

The high court on Tuesday explained its ruling by saying that it is not a crime to express insults towards religion. "Not even if that happens in such a way that the devotees feel their religious feelings are hurt", the court said.

The highest judge in the Netherlands said that only if a needlessly offensive remark is 'explicitly' geared towards a certain group, which is distinct from others in society based on its religion, can there be a matter of group insult as defined in article 137c of the Dutch criminal code. For an insult towards a group to be punishable, that group has to be 'collectively' hit in what defines that group, namely religion. Criticism towards opinions that exist within a group or the behaviour of people belonging to that group cannot be penalized, according to the ruling....

The high court said the same criteria of group insult will apply in the prosecution of Geert Wilders....

Thanks to Religion Clause for the pointer.

23 Comments

Let's make a deal:

At NRO's The Corner, Maggie Gallagher notes that out-of-wedlock birth rates in the U.S. have resumed their long-term rise, after a period of flattening. And then she asks:

Is it mere coincidence that this resurgence in illegitimacy happened during the five years in which gay marriage has become (not thanks to me or my choice) the most prominent marriage issue in America — and the one marriage idea endorsed by the tastemakers to the young in particular?

On this view, not only does gay marriage contribute to heterosexual irresponsibility, but even advocating gay marriage sets it off. This is a lot to lay on a few gay couples in Massachusetts and a stack of unread law review articles. Jon Rauch responds that there's not even a correlation here. There are multiple other problems, starting with the arbitrariness and manipulability of the starting point (why choose five years ago?). And note this: this resurgence in illegitimacy happened during the five years in which gay marriage bans have become (not thanks to me or my choice) the most prominent marriage issue in America, and the one marriage idea emphasized by "pro-family" conservatives to Americans, helping tar it as an invidiously discriminatory institution.

But leave all that to one side. Here's my deal for Maggie: I'll admit that "gay marriage," or I should say more precisely its "prominence" among the trend-setting pointy-heads, contributed to more heterosexual irresponsibility, circa 2003-08. In exchange, when illegitimacy stabilizes or goes down, or when unmarried cohabitation falls off, or when deadbeat dads start paying their child support, or when the rate of second and third and fourth and umpteenth heterosexual marriages declines, or when the traffic at websites promoting adultery eases, she will insinuate that gay marriage contributed to these trends too. Deal?


Alienation of Affections:

Maggie Gallagher, blogging at National Review Online's The Corner, suggests (more or less) a revival of the tort of alienation of affections, which has been abolished in the vast majority of states:

An updated tort of adultery could look something like the document below the fold. This tort (drafted for Minnesota, don't ask me why) could be either expanded to include "commerical enterprises that intentionally and explicitly attempt to profit from acts of adultery," or we could choose to limit it to commerical enterprises. Such a tort would not prevent websites from facilitating hookups that include adulterous ones. It would prevent them from explicitly incorporating adultery into their advertising plan.

– DRAFT –

Minn. Stats. sec. 517.23. Intentional interference with marriage.

A person is liable for damages to a spouse for intentional interference with the spouse’s marriage [marital relationship] that causes injury to the spouse. An act of adultery between the defendant and the spouse of the plaintiff when the defendant knew or should have known that the plaintiff’s spouse was married shall constitute proof of intentional interference with the plaintiff’s marriage. [Damages awarded pursuant to this statute shall not exceed $500,000. This action shall be instituted within two years of the discovery of the adultery.]

Now I think marriage is (generally speaking) a very valuable institution, and that adultery is (almost always) a very bad thing.

But not all bad things are the sorts of bad things that the legal system -- and in particular the tort liability system -- should address. Sometimes the proposed rules seem likely to cause much more bad than they would prevent. And often even if a narrow proposal would be proper, the proposals that are actually offered are much broader.

Here, for instance, are just a few of the problems with the above proposal:

1. Gallagher might be seeking a tort of adultery, but the proposed statute isn't limited to adultery; it deliberately makes actionable "intentional interference with the spouse's marriage that causes injury to the spouse," and gives adultery just as one special case. The statute would literally apply to someone who urges a friend to leave an abusive -- or unfaithful or just unsuitable -- spouse, or (say) a mother who effectively badmouths her son-in-law to her daughter. (This in fact was possible under the alienation of affections tort, though at least that tort often had a limited privilege for such statements.)

2. Families are, by and large, financial units, at least until a divorce; a husband's income benefits the wife, and vice versa. This is true even as to non-community-property, at least so long as the couple does not divorce (and much infidelity is indeed ultimately followed by reconciliation, not divorce, a result that I take it Gallagher would praise).

So say that Henry and Wanda are married, and Wanda has an affair with Alex. Henry sues Alex, not Wanda. (Presumably he could sue Wanda under the first sentence, though not if the statute is revised to avoid problem 1 by being limited to the second sentence; but if Henry plans to stay with Wanda, there's little benefit in suing her.) So Alex, a culpable party, loses up to $500,000 (if the damages cap is implemented). But Wanda, the more culpable party -- she's the one who broke the vows, after all -- actually gains $250,000, because her family will now get the $500,000. (Presumably the family would gain less if Wanda reconciles with Henry before the decision or settlement, since then Henry's damages would seem less; but I suppose a jury could find $500,000 worth of emotional distress, loss of trust, and such on Henry's part even if Henry takes Wanda back.)

I know that in principle tort liability for interference with contract by an outsider may exceed contract liability for the breach by the contracting party. But that has always struck me as a weakness of that branch of tort law; the better view, I think, is that an aider to misbehavior should be no more punished than the primary misbehaver himself, absent some special circumstances (e.g., the misbehaver is a child). And this proposal would exacerbate the weakness, by letting the breaker of the vows use the law to profit at the expense of her coconspirator (in a sense) in the enterprise.

3. Nor need this be iandvertent; consider a modern legal badger game: Wanda seduces Alex (or lets Alex seduce her; the line is often quite vague). Henry then threatens to sue. Alex settles, maybe not for the full $500,000 but for $100,000. The settlement doesn't hit the news. Wanda then seduces Andrew, Anthony, and so on, and each time Henry and Wanda pocket a settlement. All perfectly legal. But is it just? Not so much.

4. All this might be less of a problem if we thought this would vastly deter adultery, since with perfect deterrence there wouldn't be any recoveries. But of course people aren't going to be perfectly deterred; and some people -- especially those without enough assets to be worth suing -- won't be deterred at all. So the cheater who just wants sex would just have to get it from poorer partners.

Interestingly, this would probably have a sex-differential effect, to the extent heterosexual men find younger women more attractive and don't care as much about their partners' wealth or success, and tot he extent heterosexual women find successful men more attractive and don't care as much about their partners' youth. The man who is cruising for hot twentysomethings will find his prospective partners not much deterred, since they're largely judgment-proof. The woman who is more sexually attracted to men who have success and status will find her prospective partners more deterred, since they have more money to lose. I'm not in principle troubled by such sex-differential effects; most laws have some such effects to some extent. But the effects do help illustrate, I suspect, the likely perverse effects of such laws.

5. Of course, for every Henry who is willing to reconcile with his Wanda, or is even complicit in the affair (as in 2 or 3), there may be many who are reluctant to reconcile. The same is true if we flip the sex of the parties. They may initially be reluctant to acknowledge the affair to themselves, but once confronted with it, they may find it hard to take the cheating spouse back, even if there are good reasons for it (e.g., to preserve an intact household for the kids).

How will the prospect of a massive damages recovery affect that? Absent alienation of affections law, a Henry might well try to avoid seeing evidence of adultery, and once confronted with the adultery might well conclude that there's much loss for the family in a divorce and little gain (other than to his own pride and dignity). But if a spouse's adultery, especially with a rich partner, equals money to the victim spouse, the incentives (both conscious and subconscious) are changed. Spotting adultery becomes less unappealing, because there's a possible financial upside as well as emotional downside in identifying it. And once the adultery is discovered, taking the cheating spouse back promptly may well diminish the recovery (a jury is less likely to find damages if a major source of damages, a broken home, is absent).

What's more, the victim spouse will know that in the event of a divorce he or she will at least have an extra $500,000 to play with, money that needn't be shared with the cheating spouse. Why not split up?, the victim might reason -- at least I'll be well-off enough to live in comparative comfort, and maybe even pick up a better new spouse.

6. And of course let's not forget the obvious problems of proof and risk of perjury. Was there an act of adultery? Should the defendant have known the other person was married? Much of the time this will depend on what was said and done behind closed doors, and who seems more trustworthy and appealing to the jury. And this is even more so today than in the past, given that men and women have innocent friendships more often than decades ago; evidence of dinners together will no longer be particularly probative, and it will be all a swearing match among three people who may have all sorts of financial and emotional motives to lie. That's in fact one reason the alienation of affections tort has mostly been abolished.

As I said, you can love marriage and hate adultery without thinking that more tort liability will make things better.

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This Cartoon Could Be Illegal, If Two Iowa Legislators Have Their Way:

Thanks to commenter Subpatre for passing it along, apropos these legislators' proposal to ban such speech, among other kinds of speech:

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AALS Constitutional Law Section Call for Papers

for the 2010 Annual Meeting; the topic is constitutional interpretation vs. constitutional construction (to get details follow the link).

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Tinkerbell Returns!

A good while ago here on the VC (in 2003, to be precise) I introduced (and subsequently named) the "Tinkerbell Effect" (and its close cousin, the "Reverse Tinkerbell Effect"). A Tinkerbell occurs when some phenomenon is more likely to become true simply as a consequence of more people believing it to be true; a Reverse Tinkerbell occurs when some phenomenon is more likely to become false simply as a consequence of more people believing it to be true. [And a shout-out to VC reader Patick Hynes, who helped me, back then, find the name for the phenomenon -- derived, of course, from the moment in Peter Pan when little Tink's light starts to dim, and Peter explains to the audience that Tink is ill, and might just die, because nobody believes in fairies anymore, at which point he exhorts the audience to believe in fairies, and to clap and to cry out "I believe!" -- after which Tinkerbell recovers and everyone feels wonderful. [It always worked, too!] The Reverse Tinkerbell, then, occurs when the more you believe in something, the more likely it is to vanish.]

[Some examples of Reverse Tinkerbells: Voting: The more that people believe the truth of the proposition "My vote matters," the less likely it is that it will become true (because more people will vote if they believe it matters, and that makes it less likely that your vote matters); similarly, the more that people believe the proposition "My vote doesn't matter," the less likely it is to become true (i.e., fewer people will vote, and then your vote will matter). Or: The more that people believe the proposition " X [the college library; Cancun; etc.] is a quiet and unspoiled spot," the less true it becomes. Or: The more people think that some charity (e.g., the March of Dimes, or the Salvation Army) really needs money, the less money it will need.]

Tinkerbells and Reverse Tinkerbells are everywhere, once you start looking for them. Here's one that's been on my mind recently. Anyone who spends 15 minutes or more thinking seriously about how to market a book in this country to a wide audience (as I have been doing of late) realizes that the proposition "Book X is a New York Times Bestseller" is a classic Tinkerbell -- the more people believe the proposition, the more likely it is to become true. That is, of course, why publishers will splash the fact (if it's true) all over their advertisements, and all over the covers of their books (when the new editions come out), and all over their marketing material, etc. [The actual links connecting the belief in the proposition and the outcome are quite interesting and could use some careful study, I think -- once a book is a NY Times Bestseller, many things happen: NPR is more likely to carry a story about it; Terri Gross is more likely to interview the author; bookstores all over the country are more likely to feature it on their display shelves; ordinary consumers are more likely to shell out their hard-earned money (hey - it's a NY Times Bestseller, how bad can it be?...)]

That's all pretty commonplace - like I said, everyone who thinks about selling books understands this. Like every other author out there, I'd love to figure out a way to ride this Tinkerbell to greater and greater heights, to get those positive feedback belief loops humming. How to do that? Well, I could just put "In Search of Jefferson's Moose: a New York Times Bestseller!!" all over the webpage for my book, the Amazon page for my book, the Google AdWords campaign for my book, etc. and watch my sales go up.

Unfortunately, there's a name for that: "fraud."

But here's the interesting wrinkle. On the Net, these loops can aggregate and amplify these signals with astonishing speed [see, e.g., "marketing, viral"], and it might be possible to game this system while avoiding serious exposure for fraud. Here's the idea: assume (even if you don't happen to believe that it's true in this instance) that this particular Tinkerbell really can induce increased sales of Book X. For a fairly modest outlay of money -- I'd guess $20 or $30K could do it -- one could design a blitz Internet ad campaign, saturating Google's AdWords, Amazon and bn.com and maybe some of the other online retail sites, and some of the big blogs, getting that message in front of hundreds of thousands or millions of eyeballs. The ad campaign focuses on the message: "Book X: A New York Times Bestseller!!" The question is: can you get enough velocity to actually make that become true soon enough so that nobody feels "defrauded" or cheated by the transaction? That is, if you were reasonably confident that you could actually generate enough sales on Monday, Tuesday, and Wednesday to make the book an actual NYT bestseller list on the following Sunday's list, who will claim to have been defrauded? Indeed, will there have actually been fraud, in that circumstance?

It probably wouldn't actually work in this instance -- this particular market's not quite friction-less enough to induce it to happen quickly enough; it takes time for realspace booksellers to reorganize their shelves, and time for Terri Gross and Jon Stewart to put together their lineups, etc. etc. My guess, though, is that someone, surely, is going to try. [Not me, by the way -- it sounds too much like Bernard Madoff for my tastes. Rest assured: if you see an ad for my book trumpeting that it's a NY Times Bestseller, the claim is factually true. [And those of you who are more devious than I have already noticed that my getting you to believe that could just be the linchpin of my Tinkerbell strategy . . .]].

And here's a final nice touch -- the belief in the efficacy of this kind of scheme to game the NY Times Bestseller System is itself a Reverse Tinkerbell! The more people believe the truth of the proposition "The NYT Bestseller System can be gamed," the less likely it is to become true (because if people believe that system can be gamed, the "New York Times Bestseller!!" label no longer induces people to buy the book . . .)

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The Effect of the Internet on the Number of Withdrawn Nominees: In his post below, Eugene asks why there seem to be more withdrawn nominees in the early phase of this Administration than in past Administrations. I'm not really sure there are more in this Administration than others, as it's not something I have followed closely or can easily quantify. At the same time, if it's happening, I would think one significant reason is the Internet.

  The Internet has made so much more information about people widely available in an instant that there is now much more basis for critics to object to nominees who have said or done something controversial. In the the old days, it was hard to learn about a nominee. You might know a nominee's basic resume, but good luck finding any record of what they thought or said or did on controversial issues. In an era of blogs, YouTube, and Google, that's much less common. A great deal is now online, so there is much more information out there and there's a much greater chance that something the nominee said or wrote about controversial issues will come to light. And humans being humans, messy and imperfect, at least some of that is going to cause problems for at least some of the nominees.

  I don't think that explains everything. But if it's true that there have been more withdrawn nominees than in the past, I suspect the Internet explains at least part of it. (Oh, and I'll close comments here because this is really just an extended comment on Eugene's post; If you'd like to comment, please do so in the original thread.)

Related Posts (on one page):

  1. The Effect of the Internet on the Number of Withdrawn Nominees:
  2. Withdrawn High-Level Nominees:

Tuesday, March 10, 2009

Potential Court of Appeals Nominees: The New York Times has a story that floats names of possible Court of Appeals nominees that the White House is apparently considering:
  To fill a seat that traditionally goes to someone from Maryland, officials said the White House was considering nominating Andre Davis, a District Court judge based in Baltimore.
  There are several candidates for the Virginia seat, including Elizabeth Magill, a law professor at the University of Virginia and daughter of a former federal appeals court judge.
  For the United States Court of Appeals for the Second Circuit, based in New York, officials said the White House had settled on elevating Judge Gerard E. Lynch, a Columbia law professor, from the District Court.
  Gerard Lynch for the Second Circuit would be an excellent pick: Although I do not know him well, I have long considered him an extremely smart and very thoughtful judge. He seems like an obvious pick for the Second Circuit. (If confirmed, Judge Lynch would be the second former Columbia criminal law professor on the Second Circuit, joining Debra Livingston.) I only know of Professor Magill from her very impressive bio page and CV at Virginia, although I trust many readers will know Professor Magill and can weigh in.
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Withdrawn High-Level Nominees:

The latest withdrawal of a pretty high-level nominee (this time, Chas Freeman) made me wonder why there seem to be many more such in the early phase of this Administration than in past Administrations. Some possible explanations:

  1. I'm misremembering, and there were roughly as many in past Administrations.

  2. This Administration is unusually poor at vetting people. (If so, why?)

  3. This Administration's adversaries are unusually good at torpedoing people. (Doesn't seem quite right, especially given how badly the Republicans were beaten in the election.)

  4. This Administration is unusually willing to cut nominees loose. (If so, why?)

  5. The threshold for disqualifying a nominee has fallen in the last few decades. (If so, why?)

  6. This Administration is unusually willing to propose controversial nominees. (But many of the nominees have not been defeated because their policies or personalities were controversial.

I'm sure there must be others. What are your thoughts on this?

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Judicial Nomination Filibusters for the NYT, but Not the GOP:

Yesterday’s New York Times had a particularly intemperate editorial on the subject of judicial nominations. Though the Times supported Senate Democrats’ filibuster against several Bush judicial nominees – and is still unready to abandon the tool — the Gray Lady’s editorialists are apoplectic at the suggestion that Senate Republicans might do the same, even in pursuit of “appropriate” White House consultation on prospective nominees.

The Times still defends those old filibusters, but only against conservative judicial nominees. Resort to the filibuster “can be an appropriate response when it is clear that a particular nominee would be a dangerous addition to the bench,” the Times explains. But threatening a filibuster is inappropriate in pursuit of greater consultation.

If anything, the Times has it backwards. I do not believe it is ever appropriate for the Senate to filibuster nominations on ideological grounds, and I have no love of blue slips. If filibusters against nominations are ever appropriate (and I stress the “if”) it would be on procedural grounds, such as to ensure the consistent application of Senate rules. I find resort to procedural tactics less objectionable when the aim is to ensure that Senators have adequate time to review a nominee’s record than when used to defeat a judicial nominee who enjoys majority support.

The Times’ argument is also difficult to square with history. Senate Democrats did not simply filibuster the “least-competent, most radical” Bush nominees. While the filibuster was deployed against my least favorite Bush nominee, some of those Senate Democrats sought to block were among the most impressive and accomplished. Nominees with majority "well qualified" ratings from the ABA were stalled, while those with simply "qualified" ratings (or worse) sailed through. Senate Democrats did not filibuster Miguel Estrada because he was any more conservative or less qualified than other appellate nominees. To the contrary, he was blocked because Senate Democrats feared he might be nominated to the Supreme Court. In other cases, filibusters were explicitly used as payback for GOP failure to move Clinton nominees, consult adequately with Senate Democrats, or respect the dreaded blue slips the Times now decries as “undemocratic.” If it was okay for the Senate to filibuster Henry Saad to force the renomination of Helene White, how are the Republicans out of line now?

The Times editorial is also over-the-top in its characterization of Bush nominees now on the bench. “The nation is now saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims.” Those last bits are particularly amusing given the Supreme Court’s expansive rulings on standing and habeas rights in Massachusetts v. EPA and Boumediene, respectively, not to mention the Wyeth decision handed down last week – a decision that should help put to rest claims that federal courts exhibit “reflexive deference to corporations.”

Setting the merits of individual cases aside, it is hard to argue that the Supreme Court is particularly right wing, as I’ve discussed at length. It is also hard to take seriously the Times’ suggestion that federal courts are “stock[ed]” with “conservative ideologues.” President Bush named approximately one-third of the judges now sitting on the federal appellate bench. This is close to what one would expect given his eight years in the Oval Office – if anything, the proportion of Bush nominees on federal appellate courts is below the norm.

Now the Times calls upon President Obama to “repair the damage” wrought upon our legal system by Bush nominees through the nomination of “highly qualified, progressive-minded judges” who will “counterbalance” the “ideologues who control many appeals courts.” The folks at Times Square should take a deep breadth and relax. As I explained here, President Obama is likely to name close to one-third of the federal appellate bench in a single term, all but erasing any purported conservative dominance of the federal courts. Even if President Obama emulates his predecessor by renominating a few Bush nominees, there’s little doubt Democratic nominees will constitute a majority of federal appellate judges in 2012.

Finally, I would note that the Times editorial is riddled with inaccuracies and misrepresentations. Ed Whelan details some of them here (see also here).

UPDATE: Ed Whelan has more on what was, and was not, done with blue slips here.

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Closestool Burst Destructor:

When I travel to Israel, one thing that amuses me is that a huge percentage of the toys and games that are sold there apparently wind up there because the Chinese manufacturers mangled the English on the box, and therefore couldn't sell them, as planned, to English-speaking countries. Usually, it's just a question of bad grammar or egregious spelling errors, but occasionally it goes well beyond that.


The Chutzpah of Chas. Freeman:

Freeman, who was to be appointed to chair the National Intelligence Council, has withdrawn his name from consideration, following criticism of his candidacy, including on this blog.

Freeman first drew negative attention for what were perceived to be his anti-Israel views, but that's not what ultimately killed his candidacy. Rather, bloggers and journalists (outside the MSM) discovered that he has been a paid shill for the Saudi dictatorship (as president of a Saudi-funded think tank), and served on the board of a company owned by the Chinese government, while also acting as an apologist for the brutal repression by that government in Tianamen and Tibet (the protests last year in Tibet, according to Freeman, were but a "race riot").

So, here we have a former high-level U.S. official who has cashed in on his connections by being a paid p.r. rep. for the Saudis, and sitting on the board of a company owned by a Chinese government whose intentions, especially with regard to espionage, are hardly always friendly to the U.S. And he then expects to be appointed to a high-level, sensitive, intelligence position.

And who's to blame for his withdrawal? Surely, pro-Israel individuals played a significant role in forcing Freeman's withdrawal. But they wouldn't have gotten anywhere if he wouldn't have given them plenty of ammunition. So perhaps he might notice that his choice of paymasters wasn't exactly conducive to a future career in intelligence? Why, no, it's all the fault of the nefarious "Israel Lobby," which he defined today as "a Lobby intent on enforcing the will and interests of a foreign government."

Ironically, the members of the so-called Israel lobby are Americans, who do not take money or orders from any foreign government (and indeed often disagree among themselves as to whether specific Israeli policies are wise), and who believe that what they are doing is in the best interests of the United States, on moral grounds, practical grounds, or, usually, both. Unlike Freeman and other members of the "Saudi Lobby," they are not paid by a semi-hostile, repressive, dictatorial foreign government to be a de facto propaganda agent, nor would the vast majority of them want to take money from the likes of Saudi Arabia and China. The chutzpah of someone who has been paid by such foreign governments to promote their political and business interests in impugning the integrity and patriotism of those who have not is something to behold.

[Sorry, I'm not opening comments. I've pretty much had it with comments until we solve a technical issue: how to keep banned commenters from returning with new URLs. Life is too short to spend my time consistently policing the same commenters.]


New Yawk Tawk:

Any New York-area VCers interested in coming to a book talk I'm giving at NYLS are welcome to drop by; info is here.

And we're having a book launch party afterwards at the 169 Bar

169 East Broadway, NYC, NY 10002 Cross Streets: Rutgers St and East Broadway (Essex & Canal street is close enough) Directions: Take the F train to East Broadway exit, or the B train to Grand & Christie, walk East to Essex then South to East Broadway. Tel: 212-473-8866 WEDNESDAY MARCH 11 from 6 - 9 PM. Cash bar. And if you're a musician, bring your instrument if you dare ... we'll be having a jam session starting at around 730 or so to keep everybody in the proper celebratory mood.

DavidP

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Moose:

One of the nice things about writing a book and loosing it upon the world is discovering instances when your work stimulates people to do interesting and creative things. I stumbled across this the other day, by Ken Liu — "Chinese Characters for a New World". It's a new character for "moose," formed from the characters for "hand" (doubled, for the palmate antlers of the male") and "deer":

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Ward Churchill v. University of Colorado

is being blogged, mostly by University of Denver law students, at The Race to the Bottom (a faculty-student collaborative blog). For more, see here.

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Regulation by Litigation Event - March 17:

Next Tuesday, March 17, the Case Western Reserve University School of Law’s Center for Business Law and Regulation and the Federalist Society are co-sponsoring a luncheon on “Regulation by Litigation: Boon or Bane?” in Washington, D.C. The event centers on a new book, Regulation by Litigation by sometime VC guest blogger, Andrew P. Morriss (University of Illiniois), Bruce Yandle (Clemson), and Andrew Dorchak (Case Western). The event will feature remarks by the books authors, followed by commentary from David Vladeck (Georgetown) and former EPA General Counsel Roger Martella, Jr. (Sidley Austin). Details and registration information are here.

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The Parable of the Boiling Frog, Taken Too Far:

From a recent divorce case, in which the father's actions were apparently held against him in deciding child custody:

[Father] conceded that the children were very upset when he performed a science experiment to demonstrate that a frog would remain in a pot of slowly heated and then boiling water until it died.

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"The Connecticut Legislature's Preposterously Unconstitutional Attack on Catholicism":

Prof. Rick Hills (PrawfsBlawg) has more on the bill, and on why it's unconstitutional.

My friend Prof. Rick Garnett has also posted an open letter drafted by Doug Laycock -- one of the leading Religion Clauses experts in the nation -- which I had the pleasure of signing, together with several other professors. I'm pretty sure that the signatories disagree on a great deal about Religion Clauses law, but we certainly agree on this. And my Mayer Brown colleague Philip Lacovara has published a letter with his own legal analysis, with which I also agree. (I learned of the letter from a religion-and-the-law discussion list, entirely outside my Mayer work.)

The proposal seems to have been tabled by the legislature for now. Let's hope it stays that way.

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Banning Cartoons of Candidates + Banning Disparagement of Candidates Without Opponents' Permission + Limiting Distribution of Information on Legislators' Votes:

That's what IowaHouse Bill 229 (introduced by Richard Anderson and Mary Mascher) would do:

3. A person shall not distribute any campaign material concerning a target candidate with the intent to encourage the recipient of that campaign material to vote against that target candidate, without first ... obtaining, in writing, the prior consent of the beneficiary candidate to the distribution of the campaign material.

4. A person shall not distribute any campaign material that contains a cartoon, caricature, or defacement of the personal likeness of a target candidate.

5. A person shall not distribute any campaign material that contains photographs or other depictions of human role playing, except of a candidate who has approved the campaign material.

6. A person shall not distribute any campaign material regarding a vote cast by a target candidate who is a member of a house of the general assembly if a majority of the membership of the house of which the target candidate is a member voted in the same manner as the target candidate and if the majority of those members of that house of the general assembly who are affiliated with the political party which is not the party of the target candidate voted in the same manner as the target candidate.

7. Campaign material that refers to a prior vote cast by a target candidate on an issue must disclose all of the following:
a. The total votes cast for and against the issue.
b. The total votes cast on the issue by members of each political party of the membership of the legislative chamber of which the target candidate is a member.

Thanks to Prof. Rick Hasen (Election Law Blog), who has more on this. He and I of course agree that this proposal is blatantly unconstitutional.

Related Posts (on one page):

  1. This Cartoon Could Be Illegal, If Two Iowa Legislators Have Their Way:
  2. Banning Cartoons of Candidates + Banning Disparagement of Candidates Without Opponents' Permission + Limiting Distribution of Information on Legislators' Votes:
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The Law Market:

I just received The Law Market, by lawprofs Erin O'Hara and Larry Ribstein. Here's a short description:

In this book, Erin O'Hara and Larry E. Ribstein explore a new perspective on law, viewing it as a product for which people and firms can shop, regardless of geographic borders. The authors consider the structure and operation of the market this creates, the economic, legal, and political forces influencing it, and the arguments for and against a robust market for law. Through jurisdictional competition, law markets promise to improve our laws and, by establishing certainty, streamline the operation of the legal system. But the law market also limits governments' ability to enforce regulations and protect citizens from harmful activities. Given this tradeoff, O'Hara and Ribstein argue that simple contractual choice-of-law rules can help maximize the benefits of the law market while tempering its social costs.

I haven't read the book yet, but I did see Ribstein give a talk based on the book at AEI. Based on that talk, and my high regard for the authors' work, I'm sure the book will be fascinating.


"A Saudi Arabian Court Has Sentenced a 75-Year-Old Syrian Woman to 40 Lashes, Four Months Imprisonment and Deportation ... for Having Two Unrelated Men in Her House,

according to local media reports," reports CNN.

One of the men (age 24) stated that "he had the right to be there, because Sawadi had breast-fed him as a baby and was therefore considered to be a son to her in Islam, according to Al-Watan," and "that his friend [also age 24] was escorting him as he delivered bread for the elderly woman." One man "was sentenced to four months in prison and 40 lashes" and the other "to six months in prison and 60 lashes." The Telegraph (UK) reports that one of the men, the one who had been breastfed, "was Mrs Sawadi's late husband's nephew."

Thanks to Religion Clause for the pointer. If you're interested in news on religion and the law in the U.S. and elsewhere, you should regularly visit the site, or subscribe to it via RSS or by e-mail (check out the right sidebar a few pages down).

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Indian Prime Minister Says There is No Right to "Criticize or Run Down" Religions:

From The Press Trust of Indian:

Prime Minister Manmohan Singh today met a group of Muslim girls [on the occasion of Milad-un-Nabi, Mohammed's birthday] ... [and] said "our Constitution gives full freedom to the people to practice any religion of their choice, but it does not give anyone the license to criticize or run down other religions."

Thanks to Religion Clause for the pointer.

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Speech Tomorrow in Riverside, CA: Tomorrow I am giving a noon-time talk on "Was Lochner Right? Natural Rights and the Fourteenth Amendment," sponsored by the Inland Empire Chapter of the Federalist Society. It will be held at the Tamale Factory located at Avila Terrace, 3663 Main Street, Riverside CA. The cost is $30, which includes lunch. Check-In: 11:45 a.m. To make reservations, please call, fax, or e-mail Kaiya Avery. E-mail: kaiya.avery@kmob.com or phone: (951) 781-9231 Fax: (951) 781-4507.

Details on today's talk @ 5p.m. in Fullerton, CA are here.

The Unfinished Daubert Revolution:

That's the title of my article, recently published in Engage. It can be downloaded here.

Here's the abstract:

The American judiciary traditionally had a laissez-faire approach toward the admissibility of most categories of expert testimony. This approach ended in federal courts when the U.S. Supreme Court adopted a reliability test for the admissibility of expert testimony in a series of three decisions: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire Co., Ltd., v. Carmichael. An amendment to Federal Rule of Evidence 702 in 2000 then codified a stringent interpretation of the "Daubert trilogy." Many states also have adopted some version of the Daubert reliability test.

Contrary to many early predictions, the consequences of Daubert v. Merrell Dow Pharmaceuticals and its progeny have been quite positive. Contrary to pre-Daubert practice, all expert testimony is now scrutinized for reliability before admitted into court. The result has been a significant decline in the presentation of "quackspertise" in the courts.

Nevertheless, Daubert has several significant limitations.

First, many state courts have declined to adopt it, and have instead retained more liberal rules of admissibility, some of which amount to a "let-it-all-in" philosophy.

Second, some federal judges simply refuse to acknowledge the sea change that has occurred in the law of expert testimony, and continue to rely on older, more inclusionary precedents.

Third, Daubert has been ineffective in limiting the use of junk science by prosecutors in criminal cases. Finally, Daubert is a poor match for certain kinds of expert testimony. Specifically, Rule 702 and the Daubert trilogy are ill-equipped to deal with "connoisseur" testimony that arises from a legitimate field of expertise, but whose reliability is ultimately dependent on the personal credibility of the testifying expert.

This paper addresses each of these limitations in turn, and suggests that the relevant problems demand resolution before the Daubert revolution can be deemed complete.


Monday, March 9, 2009

Do You Carry Nondeadly Defensive Weapons, or Keep Them at Home? Have You Used Them?

If your answer to either question is yes, can you please tell me a bit about the circumstances? I have in mind weapons such as pepper spray or stun guns, which are designed specifically to be nondeadly defensive weapons, and I'm looking for uses by people other than police officers and security guards. And I'm looking for a whole range of details. In particular:

(1) Why do you use them instead of guns? Is it because it's illegal for you to carry or possess a gun (e.g., because you live in a jurisdiction in which licenses to carry are unavailable, or because you are under 21 and carry licenses are only available to people 21 and above, or because you have some criminal conviction that bars possession of a gun)? Or do you prefer nonlethal weapons, and, if so, exactly why? (I can guess why people might, but I'd like to hear your own views.)

(2) Have you had any incidents in which you've used such weapons for self-defense? How did they happen? How happy were you with the defensive weapon's effectiveness?

Please post your answers, or, if you'd rather just e-mail me, please do so, at volokh at law.ucla.edu.

I realize, by the way, that these weapons can in principle be deadly, but so can fists. I call the weapons nondeadly because only a tiny fraction of attacks with them -- even ones that connect -- lead to death.

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Interesting Proposed Statute:

From Texas S.B. No. 11, proposed penal code § 33.06(b):

A person commits an offense if, with the intent to benefit, to promote, or to further the interests of a criminal street gang or to increase the person’s standing, position, or status in the criminal street gang, the person uses the Internet, including distributing, selling, transmitting, or posting on the Internet an audio, video, or still representation of a person engaged in criminal activity, to ... advertise the presence of the criminal street gang in a specific geographic location.

Constitutional? Thanks to BNA's Internet Law News for the pointer.

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Speech Tomorrow in Fullerton, CA: Tomorrow at 5:00pm, I will be speaking on "Was Lochner Right? Natural Rights and the Fourteenth Amendment" at Western State University College of Law, 1111 N State College Blvd, Fullerton, CA 92831. The event is sponsored by the Federalist Society and will be held in room 102. If you are a VC reader come and say "Hi."

For info on my speeches on Wednesday in Riverside and Thursday in San Diego, click here.

Obama Removes Stem Cell Barriers.

In a good move today, President Obama removed Bush Administration barriers to some forms of stem cell research [funding]. Executive Order of March 9, 2009:

Sec. 1: . . . For the past 8 years, the authority of the Department of Health and Human Services, including the National Institutes of Health (NIH), to fund and conduct human embryonic stem cell research has been limited by Presidential actions. The purpose of this order is to remove these limitations on scientific inquiry, to expand NIH support for the exploration of human stem cell research, and in so doing to enhance the contribution of America's scientists to important new discoveries and new therapies for the benefit of humankind.

Sec. 2. Research. The Secretary of Health and Human Services (Secretary), through the Director of NIH, may support and conduct responsible, scientifically worthy human stem cell research, including human embryonic stem cell research, to the extent permitted by law.

Sec. 3. Guidance. Within 120 days from the date of this order, the Secretary, through the Director of NIH, shall review existing NIH guidance and other widely recognized guidelines on human stem cell research, including provisions establishing appropriate safeguards, and issue new NIH guidance on such research that is consistent with this order.

Behind Obama at the signing was a group of distinguished scientists, including my wife's mentor, Janet Rowley of the University of Chicago.

Obama gave an eloquent little speech about basing policy on science and facts. I am happy to see this remnant of what has been called the "Republican war on science" fall by the wayside. I wish he would take on the war on science being waged by many mainstream scientists (and their political acolytes) in the climate field. If scientific standards were higher in that field, I doubt that Obama would now be proposing to saddle American business with a trillion or two dollars in carbon emission restrictions and offsets when we can least afford it.

Obama should start by requiring — AND ENFORCING — federal rules and norms for prompt, effective data archiving on federally funded projects. The stakes are too high to allow climate science to pass without checking.

UPDATE: Here is "Reason as Our Guide," the dissent filed by Janet Rowley and Elizabeth Blackburn to the Kass Committee Report on Stem Cell Research.

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Justice Ginsburg Urges Congressional Action Once Again: As Ed Whelan points out, Justice Ginsburg's brief dissent in Bartlett v. Strickland has a Ledbetter-like call for Congress to overrule the Court's opinion because she believes the majority opinion "severely undermines" the "estimable aim" of the Voting rights Act of 1965:
I join JUSTICE SOUTER’s powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality’s interpretation of §2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute’s estimable aim. Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2.
We've had a debate on this sort of dissent before. I remain of the view that it's a pretty troubling practice if the Court wants to maintain its judicial independence.
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Proof That Justice Ginsburg Was Once A Law Professor: From Footnote 5 in her opinion in Vermont v. Brillon:
Notably, the Vermont Supreme Court made no ruling under the State’s own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See Oregon v. Hass, 420 U. S. 714, 719–720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340, 343–344 (1978).
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Sunday, March 8, 2009

Is the Roberts Court Still "Pro-Business"?

Today's Washington Post notes that the Supreme Court does not appear to be as "pro-business" as it had a year or two ago. After the Court rejected Lily Ledbetter's pay discrimination claim and slashed the punitive damage award against Exxon for the Valdez oil spill, many commentators claimed the Court was "pro-business." Since then, however, the Court has often gone the other way, rejecting corporate claims that federal regulations preempt state tort suits in Altria v. Good and Wyeth v. Levine and siding with employees in several discrimination suits. I don't think this means the Court has shifted all that much. Rather, as I told the Post, it illustrates that much of the talk that the Roberts Court is a "pro-business" court was premature. And while the Roberts Court is still a work in progress, the pattern of decisions to date defies such simplistic labels.

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Kagan Advances Without Answering Questions:

The Senate Judiciary Committee favorably reported the nomination of Elena Kagan to be Solicitor General by a vote of 13-3. Three Republicans voted against her nomination, and three more abstained, due to Kagan's failure to answer questions about her views on various cases and legal questions, despite having written previously that nominees should be more forthcoming than they have been in the past. The Washington Post's Robert Barnes reports:

She once wrote that nominees should answer questions from senators.

And in no uncertain terms, either. Reviewing Stephen Carter's book "The Confirmation Mess" for the University of Chicago Law Review in 1995, Kagan opined that "when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

She thought that executive branch nominees, "for whom 'independence' is no virtue," really deserved to be grilled.

Those statements apparently are no longer operative. . . .

Kagan, the dean of the Harvard Law School, told the lawmakers she had endeavored to answer their questions but acknowledged: "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested." . . .

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

For what it's worth, I think Kagan is more correct now than she had been in 1995. While I believe she should have been more forthcoming in responding to the Committee's questions -- some prior SG nominees certainly gave more complete answers to equivalent questions -- I also think it's long past time to retire the idea that the problem with confirmation hearings is that nominees are not forced to give more detailed answers about their personal legal and political views. Insofar as Kagan's reticence was prompted by concerns about how her answers could play out should she be nominated to the bench, it is further reason to abandon the Senate's ideological inquests. In my view, judicial confirmation hearings should focus on qualifications and temperament, rather than judicial ideology. I suspect Kagan has more sympathy for that view now than she might have in the past.

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Where on the Earth

can you go 10 miles south, 10 miles west, and 10 miles north, and end up exactly where you started? (Assume away real-world transportation difficulties.) A fun puzzle I heard from my father when I was a child.

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Sunday Song Lyric: Bob Dylan's "Desolation Row" is featured in Watchmen — but it's not Dylan's version. Rather, the closing credits feature a cover by My Chemical Romance. The lyrics, however, appear to remain Dylan's, which begin:
They're selling postcards of the hanging
They're painting the passports brown
The beauty parlor is filled with sailors
The circus is in town
Here comes the blind commissioner
They've got him in a trance
One hand is tied to the tight-rope walker
The other is in his pants
And the riot squad they're restless
They need somewhere to go
As Lady and I look out tonight
From Desolation Row
The full lyrics are here. Here are the MCR video and live Dylan performances from 2003 and 1966.
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New Study May Underestimate Left-Wing Preponderance in Academia:

A new UCLA study finds that 56% of academics consider themselves to be "liberal" (47%) or "far left" (9%), compared to only 16% who say they are "conservative" (15.2%) or "far right" (0.7%). This result is consistent with numerous previous surveys showing that academics are overwhelmingly left of center.

The new survey may actually underestimate the degree of left-wing dominance. In the UCLA study, 28% of respondents say that they are "middle of the road." However, earlier research suggests that self-described academic "moderates" are likely to be well to the left of moderates in the general population. They may be "moderate" relative to their fellow academics, but liberal relative to the general population. Second, the UCLA study probably understates the proportion of academics who are on the extreme left, as opposed to mainstream liberals. The study gives respondents the option of calling themselves "liberal" or "far left" (as well as "conservative" or "far right" on the opposite end of the spectrum). However, "far left" and "far right" are pejorative terms that many people will not want to use to describe themselves, even if such a description might be accurate. Most people don't like to think of themselves as extremists. I suspect that a larger fraction of academics than the 9% who are willing to embrace "far left" would be willing to adopt a more neutral-sounding term such as "very liberal" or perhaps "radical."

The same may be true of academics on the right side of the spectrum (where only 0.7% say they are "far right"). But because there are so many fewer right-wing scholars than left-wing ones, this factor probably doesn't skew the results as much as the use of "far left" does.

There is, however, one aspect of the survey that may lead to underestimation of the proportion of right of center academics: the lack of a "libertarian" option. Many right of center academics are libertarians rather than conservatives, and a large proportion of the former may not want to describe themselves as "conservative" or "far right." In the UCLA survey, such libertarian academics might have chosen "middle of the road" or "liberal" or simply refused to answer the ideology question.

Ideological imbalance in academia isn't objectionable in and of itself. However, it does tend to influence research agendas and the content of classroom instruction, and is therefore worrisome for those reasons.

UPDATE: In the Chronicle of Higher Education article discussing the UCLA study, sociologist Neil Gross is quoted as claiming that liberal dominance in academia merely reflects the leftward movement of general public opinion in recent years. This is highly unlikely for several reasons. First, the UCLA results are similar to those reached in other surveys going back several decades. Second, general public opinion remains far to the right of that of academics. For example, 2008 election exit poll data shows that 34% of the general public call themselves "conservative," compared to 22% who say they are "liberal" and 44% "moderate." Thus, the proportion of academic liberals is at least 2.5 times greater than that in the general public.

UPDATE #2: Neil Gross e-mailed to point out that he meant to say that trends in general public opinion only explain why academic opinion is slightly more liberal than it was a few years ago, rather than the massive overall disparity between academics' ideology and that of the general public. This distinction was not, in my view, clear in the linked article. But I am happy to correct the mistake nonetheless.

UPDATE #3: I have corrected the flawed link to the UCLA study in the first sentence of the post. Sorry it took so long. I was out of town and not checking these matters as promptly as I normally would.

Related Posts (on one page):

  1. New Study May Underestimate Left-Wing Preponderance in Academia:
  2. Self-Identification of the Political Views of College Faculty:
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