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Saturday, March 21, 2009

Richard Painter, Guest-Blogging:

I'm delighted to report that Prof. Richard Painter, of the University of Minnesota law school, will be guest-blogging this coming week. Prof. Painter is the author of dozens of law review articles on lawyers' ethics, corporate governance and corporate ethics, and securities law, and coauthor of the casebooks Securities Litigation and Enforcement (2d ed. 2007) and Professional and Personal Responsibilities of the Lawyer (2d ed. 2001). He has been active in law reform efforts, including the 2002 Sarbanes-Oxley Act provision requiring lawyers to report known securities law violations up the ladder to senior management and, if necessary, to client boards of directors.

He's also the author of the new Oxford University Press book Getting the Government America Deserves: How Ethics Reform Can Make a Difference. Here's a quick summary:

Federal ethics law is relatively unknown in legal academia and elsewhere outside of Washington, D.C., but it is binding on over one million federal employees. Lobbyists, federal contractors, lawyers and others who interact with the federal government are also deeply interested in federal ethics law and represent a surprisingly large market for a little-studied area of the law. The book argues that in order to be effective, federal ethics law must address sources of systematic corruption rather than simply address motives that individual government employees might have to betray the public trust (such as personal financial holdings or family relationships). The book articulates a general approach to combating systemic corruption as well as some specific proposals for doing so.

The book argues that the existing ethics regime is in need of substantial reform since federal ethics laws fail to curtail conduct that undermines the integrity of government, such as political activity by federal employees and their interaction with lobbyists and interest groups. The book also contends that in some other areas, such as personal financial conflicts of interest, there is too much complexity in regulatory and reporting requirements, and rules need to be simplified. Painter's solution includes strengthening the enforcement of ethics rules, reforming the lobbying industry, and changing a system of campaign finance that impedes meaningful government ethics reform.

I'm much looking forward to Prof. Painter's posts.

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ACS Board Adds Three: The American Constitution Society has added three new members to its board: Former NYT reporter Linda Greenhouse, Stanford lawprof Pam Karlan, and Georgetown lawprof James Forman, Jr.

OurCourts.Org and Ideas for Games About Constitutional Law: Retired Justice Sandra Day O'Connor is behind a new website, OurCourts.Org, that is desiged to teach students abot the importance of the judicial system and constitutional rights. The site indicates that it will soon host two new games that students can play to learn about the Constitution and the Supreme Court:
Do I have a Right?
In this game, students will advise fictional kids about their rights under the Constitution and the Bill of Rights. As they advance, additional rights are unlocked and the scenarios get more complex. This short game will teach students that they have important rights grounded in the specific Amendments to the Constitution.

Supreme Decision: Freedom of Speech
In this game, students will work for a Justice of the Supreme Court. They will use the First Amendment of the Constitution to help their Justice decide whether a fellow student, Ben, can be suspended from school for wearing his favorite band t-shirt. If they demonstrate good reasoning, students earn the chance to write the majority opinion for the Supreme Court. This game will ask students to explore the parameters of the First Amendments free speech guarantee so that they can assist the Justices in performing their constitutional role.
  This is a pretty interesting idea. Here are two more suggestions that I've come up with for games that the site might want to use:
Reasonable Observer
In this game, students will advise a fictional client as to how to apply the "reasonable observer" test to determine when government conduct is an unconstitutional establishment of religion. At the end of the game, retired Justice Sandra Day O'Connor will appear and tell students whether they are right or wrong.

Supreme Decision: Count to Five
In this game, students will work for a Justice of the Supreme Court. They will use personal advocacy and negotiation to try to get five votes for whatever result the Justice wants. If they demonstrate good political skills, students earn the chance to write the majority opinion for the Supreme Court. But be careful: Better write that opinion narrowly or you might lose Tony!
Feel free to offer your own ideas for new games in the comment thread.
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"Bi-coastal Tax Chutzpah: CA & NY Congressmen Say They Live in Maryland to Claim Property Tax Break on Million Dollar Vacation Homes":

Prof. Paul Caron at TaxProf Blog blogs about this, and links to various news stories. I don't know tax law well enough to have an informed opinion, but Caron does know tax law, and seems to think there is indeed some misbehavior there.

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How About a 90% Tax on Some of the People Who Caused This Mess?

I was thinking: How about imposing a 90% tax on the income over $100,000 of some of the people who caused this mess? Perhaps not at the top of most lists, but fairly near the top, should be Christopher Dodd, Barney Frank, and the leaders of Fannie Mae, Freddie Mac, and ACORN.

If Congress is going to target unpopular people who make larger than average incomes, it should start with itself (and its sources of campaign funds and workers).


Gov. Sanford on the Stimulus:

In today's WSJ, South Carolina Governor Mark Sanford explains his opposition to accepting portions of the federal stimulus funds, and his desire to use stimulus money to pay down state debt.

Before the stimulus bill passed, I asked for states not to be bailed out. After it was signed into law, I said that a state bailout would create more problems than it solved, and that we shouldn't spend money we don't have. That debate was lost, so I looked for a reasonable middle ground. I asked the president for his support in using the $700 million to pay down state debt.

If we're going to spend money we don't have at the federal level, it becomes all the more important that our state balance sheet is in good order -- particularly if this is a protracted downturn. But many people do not realize that the stimulus money runs out in 24 months -- at which point South Carolina will be forced to find a new source of funding to sustain the new level of spending, or to make sharp cuts. Sure, I could kick the can down the road; in two years, I'll be safely out of office. But it would be irresponsible.

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Explaining Alleged ABA Bias:

Todd Zywicki noted this story on a new study purporting to show liberal bias in the ABA's evaluation of judicial nominees. This conclusion, in itself, is not particularly surprising, but I think it is worth noting that the study reportedly found quite a few interesting things, including that:

  • Nominees with prior judicial experience tend to get higher ratings than those without such experience;
  • Nominees of Democratic Presidents tend to get higher ratings than nominees of Republican Presidents;
  • More conservative nominees tend to get lower ratings;
  • White nominees tend to get higher ratings.
From this list, it strikes me that there is more going on than a simple "liberal bias," as a nominee's ideology is not the only variable that appears to influence the ABA's ratings. So what's going on? First, I think it is possible that those with prior judicial experience tend to get higher ratings because it is easier for the ABA evaluators (and the judge pickers) to project how someone will perform as a judge if they've already been a judge. Some people make the transition from advocate to arbiter better than others. But if a nominee has no judicial experience, assessing how they would perform on the bench involves a bit more guesswork, and this uncertainty could certainly produce lower average ratings.

What about ideology and race? I don't think the study necessarily shows that the ABA is consciously biased against conservative nominees. An alternative explanation is that the ratings reflect the perspective of a somewhat-insular white liberal elite that has a tendency to give higher ratings to those who are most like them in background, experience and perspective. Insofar as the committee reflects a liberal white elite, its members may have difficulty identifying with those who have different racial and ethnic backgrounds, as well as those with strongly divergent political views. Such unconscious bias could result in systematically higher ratings to nominees who reflect the experience and outlooks most common among the groups from which ABA evaluation committee members are drawn even if the evaluation committees do not explicitly consider the political views of individual nominees. If this explanation explains some of the alleged ideological bias in law school hiring, it seems to me it might explain the apparent ideological (and racial) bias of the ABA's vetting process as well.

Related Posts (on one page):

  1. NYT: The ABA Is Not Liberal Enough:
  2. "Bias at the Bar":
  3. Explaining Alleged ABA Bias:
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Filibusters and Blue Slips (Again):

A common argument making the rounds is that Senate Democrats only filibustered some of President Bush's judicial nominations because then-Senate Judiciary Committee Chairman Orrin Hatch violated Senate traditions with regard to blue slips. Let's assume for the moment that the charge against Hatch is accurate, does this explain the filibuster of Bush nominations? No. Filibusters were used to stall or block the confirmation of nominees for which blue slips were completely irrelevant, including Miguel Estrada and Priscilla Owen. Estrada was nominated to the U.S. Court of Appeals for the D.C. Circuit, so there was no blue slip issue whatsoever. Owen was nominated to a Texas seat on the U.S. Court of Appeals for the Fifth Circuit, and both Texas Senators strongly supported her confirmation. Why, then, were they filibustered? Here's the case made by the NYT editorial board at the time:

Filibustering Judge Owen's confirmation would send the Bush administration two important messages: the president must stop packing the courts with ideologues, and he must show more respect for the Senate's role. . . .

The filibuster is not a tool to be used lightly. But the Senate has been right to use it against the nomination of Miguel Estrada, who is hiding his views on legal issues. It should do the same to stop the once-rejected Judge Owen, and tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary.

The other odd thing about the "Senate Democrats were just defending blue slips" argument is that it would actually seem to justify Senate Republican use of a filibuster for the same purpose. After all, if filibusters were an acceptable way to enforce the traditional blue slip policy before, they should no less acceptable today. And even if Senate Republicans opposed such filibusters in the past, would it be wrong for them to acquiesce to the new norm created by Senate Democrats? They opposed the filibuster for judicial nominations, but they lost that fight. Save for the few who (wrongly) maintained that such filibusters were "unconstitutional" (as opposed to "extraconstitutional," undemocratic, or merely unwise), I am not even sure the hypocrisy charge sticks all that much if the alternative is "unilateral disarmament."

As I've made clear repeatedly, I think Senate Democrats were wrong to filibuster Bush judicial nominees, particularly on ideological grounds. I further believe Senate Republicans would be wrong to respond in kind, even to defend the blue slip. I believe filibusters have no place in the judicial confirmation process. A Senate minority should not block the confirmation of judicial nominees who enjoy majority support. Period. But I am not sure those who supported the use of such tactics have much basis to complain now that the shoe is on the other foot.

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The Obama administration's three front move against citizen firearms:

In this week's Second Amendment Podcast, Jon Caldara and I discuss three recent steps the Obama administration has taken against firearms: canceling Department of Defense sales of once-fired brass; strangling the armed pilots program; and the new National Park Service rule against lead in national parks. The show was taped on Tuesday, and, happily, the first problem was fixed on Wednesday, as I explained in a postscript.

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Friday, March 20, 2009

Pope Benedict on Condoms and AIDS:

I read this editorial in the Washington Post yesterday and it seemed to me that the editors must've been making a straw man out of Pope Benedict's position on condom use and AIDs:

THE LATE New York senator Daniel Patrick Moynihan once said, "Everyone is entitled to his own opinion but not his own facts." This holds true even for the pope.

While on a flight to Cameroon on Tuesday to begin a weeklong journey through Africa, Pope Benedict XVI said, "You can't resolve [the AIDS epidemic] with the distribution of condoms. On the contrary, it increases the problem." In a perfect world, people would abstain from having sex until they were married or would be monogamous in committed relationships. But the world isn't perfect -- and neither is Pope Benedict's pronouncement on the effectiveness of condoms in the battle against HIV/AIDS. The evidence says so.

Are condoms foolproof protection against infection by HIV, which causes AIDS? No. Sometimes they break, and sometimes people put them on incorrectly. Still, doctors on the front lines of the fight against the AIDS epidemic established long ago that the use of condoms greatly diminishes the transmission of HIV, the cause of a disease that has no cure. That the pope chose to question the value of condoms in fighting the nearly 28-year-old scourge while heading to the continent whose people are most affected by it is troubling. According to UNAIDS, the Joint United Nations Program on HIV/AIDS, sub-Saharan Africa is the epidemic's center, with 67 percent of the world's 32.9 million people with HIV and with 75 percent of all AIDS deaths. Heterosexual intercourse is the "driving force" of the epidemic.

Now the peculiarity in this editorial is that the Post insists that "the evidence" says that Pope Benedict is wrong. Yet the Post cites no evidence to support its position. Instead, it offers a hypothesis and implies that common sense says it must be right--but that's not evidence. Obviously it is true that if you have sex, using condoms will reduce the transmission of AIDS.

But is seems obvious that was not the Pope's point. Obviously what he had in mind is that the promotion of condom use leads to an increase in sex and that the increase in sex leads to an increase in AIDS infection. The question is an empirical one.

And, in fact, I see from Mirror of Justice that is exactly what the Pope had in mind. I haven't done an exhaustive empirical investigation as to the accuracy of the findings reported there or whether they are generalizable. But although the Wa Po insists that there is evidence, it doesn't actually provides any evidence for its argument or against Benedict's claim that urging condom use will lead to an increase in sex. Instead it seems like the Post simply misunderstood Benedict's argument and instead attributed an utterly illogical and senseless position to him, implying that his position is something stupid like using a condom while having sex does not reduce the transmission of AIDS. If the Post was not treating the Pope's position as a straw man argument it seems like it would have done well to actually provide some evidence that would disprove the Pope's actual claim.

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Whelan on Lithwick:

Ed Whelan comments on Dalia Lithwick's latest (noted by Orin). Whelan's response seems to me to be more persuasive and certainly more factually developed than Lithwick's.

On particular point caught me eye--Lithwick dredges up a supposedly sexist joke made by John Roberts back in the day. I have to say, I don't see how anyone could realistically read that off-hand comment as being anything other than a lawyer joke, not a sexist joke. Whelen reveals a few other stretchers in Lithwick's piece.

I am also persuaded by Whelan that it is not obviously hypocritical to apply different standards to question Executive Branch officials than judges. I'm not sure I necessarily agree with Whelan's argument. But it does seem obvious that Lithwick needs more than rhetoric to prove that they should be the same, although it seems like it never even occurred to her. Overall, even if one doesn't agree with all of Whelan's arguments, after reading his comment, I have to say I found her analysis pretty thin.

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Left/Right bloggers agree: Obama team weak on promoting economic confidence; bailout fatigue will impede Obama agenda:

This week's National Journal poll of top political bloggers finds some broader areas of agreement. Asked to "Grade the performance of the president's economic team in inspiring public confidence," neither the Left nor the Right thought that the team was doing a good job, although there was disagreement about how bad they were doing. The Left gave Team Obama a C+, while the Right awarded an F. My comment: "Like McCain, the Obama team is right that the economy is not nearly as bad as the hysterics contend. But the Obama team itself was a prime promoter of hysteria -- not only during the campaign, but also during the push for the so-called 'stimulus,' which was based on aggressive use of the politics of fear. So at this point, some people are understandably skeptical when Obama now tells us: 'Never mind. The economy is fundamentally sound. Trust us. Stop all those Tea Parties.'"

Question two was "How much will bailout fatigue hamper President Obama's ability to advance his economic agenda?" Sixty-four percent of the Left said "a great deal" or "a moderate amount," and did 88 percent of the Right. My comment: "At this point, it is difficult to believe that the Obama administration is competent at spending money efficiently, or much interested in adhering to its admirable campaign promises in favor of transparency and against pork and earmarks. Given the record so far, giving the Obama administration even more money to spend -- especially on something as monumental as restructuring American health care -- would be like putting Kathleen Blanco in charge of disaster relief." Not that the performance of the Bush administration--either in its handling of Katrina or of the corporate welfare bailouts--was any better.

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Law Prof's Article About His Jury Experience Leads to Overturned Verdict:

The ABA Journal has this interesting article about how a law professor's article for the New Jersey Law Journal resulted in an overturned jury verdict. A New Jersey appeals court ruled that the professor's explanation of legal concepts to his fellow jurors had a tendency to influence the verdict.

The appellate court opinion, found here, overturned a trial court finding that the professor's involvement was not uniquely important.

I disagree with the appellate court's decision. Whenever a juror is selected to participate in a jury, he brings his own background along with him. The appellate court does not contend that the law professor was instructed not to use his legal background in participating in jury deliberations. Moreover, both sides decided not to use a peremptory strike to remove him. Having taken a calculated gamble that the law professorwould be favorable to their side of the case, I don't think that the losing party should be able to challenge the resulting verdict on appeal.

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Kagan confirmed:

Elena Kagan has been confirmed as Solicitor General. Early on, before becoming Dean of Harvard Law School, she showed wise judgment by giving me an A in Administrative Law, which I'm teaching right now. And, in one of her first acts while dean, she graciously moderated my target shooting club's debate featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Congratulations, Elena!

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A Constitutional Thought Experiment: In a short essay, An American Amendment, Nick Rosenkranz proposes a constitutional amendment:
"This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations."
Interesting.

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Still Need That Word: Almost five years ago, I wrote a post arguing that the English language needs a new word. From July 17, 2004:
The English language needs a word for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency. You can see it in politics whenever there is a change in power. Advocates from the party that loses power switch to the standard what-you-say-when-you're-the-opposition arguments, and those from the party that is now in power switch to the standard what-you-say-when-you're-in-power arguments. You never have to wait very long before one side tries to outfox the other by trotting out what their opponents said back before the power switch: "Aha!" an advocate for one side will say, "But back in 199_, you took the opposite position!" Well, of course: back then, everyone took the opposite position. I don't know of a word for this particular phenomemon, but I think we need one.
Too bad we never did come up with a word for this, as I could have used it to describe this new essay by Dahlia Lithwick.
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Thursday, March 19, 2009

Ham + Muslim Students -> School Discipline -> Satire -> Serious Repetition on National TV -> Libel Lawsuit -> First Circuit Opinion:

Check out Levesque v. Doocy, decided today:

On April 11, 2007, a student at Lewiston Middle School placed a bag containing leftover ham on the cafeteria table where Somali Muslim students were sitting for lunch. The Somali students reported the incident to Bill Brochu, a Lewiston police officer stationed at the school. After an investigation of the incident, the middle school's assistant principal suspended the offending student for ten school days, a decision in which the principal concurred. The assistant principal classified the incident as "Hate Crime/Bias" in the school's computer system, and Brochu filed a police report under the direction of his superior officer, characterizing the incident as "Crime: Harassment/Hate Bias." Levesque was informed of the suspension and endorsed the decision.

The following week, while the Lewiston schools were closed for April vacation, Bonnie Washuk, a reporter for the Lewiston Sun Journal, contacted Superintendent Levesque to discuss an article she intended to write about the incident. Published on April 19, 2007, the Washuk article included quotations from both Levesque and Stephen Wessler, the executive director of the Center for the Prevention of Hate Violence ("the Center") which was working with the Lewiston Middle School to develop an appropriate response to the incident. Washuk quoted Levesque as describing the offending student's conduct as "a hate incident" and acknowledging, "We've got some work to do to turn this around and bring the school community back together ... All our students should feel welcome and safe in our schools." Wessler described the incident as "extraordinarily hurtful and degrading" and warned that without a response, "more degrading acts will follow, until at some point we'll end up having violence." Somali students reflected that the event reminded them of an incident earlier that year when the head of a pig was rolled into a Lewiston mosque during a prayer session that many Somalis attended.

On April 23, four days after the Sun Journal ran Washuk's article, Nicholas Plagman uploaded a piece he had written about the April 11 incident to Associated Content, a website platform that permits registered users to publish content on topics of their choosing. [I suspect this is the piece. -EV] While the Plagman article purported to describe the incident as a news story, it mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than ham steak, on the cafeteria table. Similarly, where Washuk reported that the Center was working with the school to create a response plan, Plagman described it as "an anti-ham 'response plan.'" Plagman also included fictitious quotations which generally built upon those accurately used in Washuk's article. For example, according to Plagman, Levesque stated, "We've got work to do to turn this around and bring the school community back together again. These children have got to learn that ham is not a toy." Plagman also quoted Wessler as stating, "It's extraordinarily hurtful and degrading. They probably felt like they were back in Mogadishu starving and being shot at." Finally, Plagman falsely listed the Associated Press ("AP") as a source. Because Plagman indicated that his story should be housed under Associated Content's "humor" and "news" categories, the article was retrievable through Google News, a computer-generated website that aggregates headlines from news sources worldwide.

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Religious Exemptions from Generally Applicable Laws:

A commenter on the hoasca exemption thread writes:

So if my religious precept is that all infidels should be killed or thrown in jail and all girls should be given clitorectomies the government should not be compelling me to violate these precepts? Obviously there are all kinds of limits on the things people can do in the name of religion. I don't see the logic in excluding drugs from this if society has determined that drug use is harmful and is subject to a general prohibition.

Here's the thing: Society, as represented by the aggregate judgment of Congress, did not determine that drug use is subject to a general prohibition. Rather, Congress has determined that drug laws -- alongside pretty much all federal laws -- should be subject to religious exemptions when courts determine that the law (1) substantially burdens people's religious exercise, and (2) granting the exemption doesn't sufficiently undermine any compelling government interest. That's the Religious Freedom Restoration Act, passed by such a broad bipartisan coalition that the vote was unanimous in the House and 97-3 in the Senate.

So the "limits on the things people can do in the name of religion" are (as to federal laws) supposed to be set by courts, at least in the first instance. Congress could, if it wants to, carve out some statutory field -- such as drug law -- from the scope of the Religious Freedom Restoration Act, and keep courts from carving out exemptions. But it hasn't. (I discuss all this in very great detail in my A Common-Law Model for Religious Exemptions article, which argues both that jurisdiction-by-jurisdiction RFRAs are generally a good statutory rule, and that Employment Division v. Smith was right in generally rejecting religious exemptions as a constitutional rule.)

Now some might well think that RFRA shouldn't have been enacted. But now that it has been, they can't appeal to "societ[al] determin[ation]" that federal laws should be uniformly enforced, including against religious objectors -- no such determination has been made.

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Does Ohio Ban on Disseminating "Harmful to Juveniles" Material to Juveniles

apply only to "personally directed devices" aimed at particular juveniles, for instance "instant messaging ... or person-to-person e-mail," or does it also cover at least some Web material that can be read by juveniles?

The U.S. Court of Appeals for the Sixth Circuit just asked the Ohio Supreme Court to interpret the Ohio statute, so the Sixth Circuit can then determine whether the statute violates the First Amendment. (State supreme courts are considered the final expositors of the meaning — as opposed to the constitutionality — of state statutes, so federal courts will sometimes certify such interpretive questions to state courts.) The statute is indeed pretty complex, and in my experience fairly unusual. If you want to comment about the case, you might want to read it carefully; it's on pp. 3 and 4 of the linked-to opinion.

Thanks to How Appealing for the pointer.

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Federal Preemption of Tort Lawsuits Against Gun Manufacturers:

There's an interesting new case on this, Adames v. Beretta U.S.A. Corp., a unanimous decision of the Illinois Supreme Court throwing out such a lawsuit. Thanks to David Hardy, singing at Of Arms & the Law.

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Bleg on shooting and concealed carry data:

There are several studies of how often police officers miss the criminal whom they are shooting at. Are there any studies or data regarding how often those missed shots injure or kill an innocent bystander? I suspect the rate is very, very low.

Second, the discussion about whether people with CCW licenses commit crimes at a high rate (as the Brady Campaign and the Violence Policy Center often assert) tends to involve data from Florida and Texas. Do VC readers know of data from other states?

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International Human Rights Law as Barring Sentencing Murderers to Life Without Parole?

The New Zealand Herald reports:

Foreign Affairs officials are warning the Government that its hardline sentencing and non-parole policy risk damaging New Zealand's international reputation.

They say National's "no parole for the worst murderers" policy and the proposed "three strikes and you're out" law could breach international obligations on torture and civil rights.

The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.

The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".

The ministry has told the Government that no parole for the worst murderers — a National election policy — would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.

Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)"....

Depending on how three strikes laws are implemented, they may indeed be unwise and unjust. The same might even be true of life without parole for some murderers — consider someone who is guilty of a mercy killing, or of killing in revenge against a brutal attack on his child (when such a killing is planned over an extended time, it probably would be murder rather than manslaughter). These, though, would be rare cases, especially as to the "murderers with previous [violent] convictions" that seem to be involved in this situation.

But I would pretty strongly resist any attempt to have our laws on these subjects be governed by "human rights conventions" that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials). I would hope that New Zealand would take a similar view.

It's also important to keep in mind that the "international law"-based argument against the death penalty wouldn't be limited just to the death penalty, and in fact might end up being deployed against the very punishment that is often urged as a reason why the death penalty is unnecessary.

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Is Originalism Crossing Over? Next week, I will be giving my talk on "Was Lochner Right? Natural Rights and the Fourteenth Amendment" at Georgetown Law on Tuesday at noon and at GMU Law on Thursday at 5pm. In my talk, I explain the original meaning of the Privileges or Immunities Clause and its connection to the Ninth Amendment. In response, people are very curious as to whether whether I think there is any chance for a revival of the Privileges or Immunities Clause in the Supreme Court. My answer is that we stand poised on the threshold of a possible shift when the constitutionality of state restrictions of the right to keep and bear arms is confronted by the Court in the wake of DC v. Heller. The evidence is overwhelming that the Privileges or Immunities of Citizens of the United States included a personal right to keep and bear arms. Indeed, the evidence that the right protected by the original meaning of the Fourteenth Amendment was personal and individual is even stronger and less impeachable than it is with the Second Amendment. And all the historical evidence concerning a right to keep and bear arms that exists concerns the Privileges or Immunities Clause, not the Due Process Clause.

Moreover, since the path breaking work by Michael Kent Curtis appeared in the 1980s, there has formed a remarkable scholarly consensus among those familiar with the historical record, and this consensus is entirely nonideological. Indeed, on February 4, 2009, the self-described "progressive" Constitutional Accountability Center filed a brief in the consolidated case of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, now pending in the Seventh Circuit, arguing that the individual right to bear arms recognized in District of Columbia v. Heller, is “incorporated” against state action via the Privileges or Immunities Clause of the 14th Amendment. CAC’s brief (available here) was filed on behalf of professors Richard Aynes, Jack Balkin, Michael Kent Curtis, and Michael A. Lawrence. Their brief speaks only to the incorporation issue and did not argue that the challenged gun regulations are unconstitutional.

The CAC maintains that a close attention to "text and history" leads to progressive results and that conservative renditions of original meaning have been too cramped. There is much to be said on behalf of this stance, which I anticipated in my 1999 article entitled, "An Originalism for Nonoriginalists." While some may object that this is not "really" originalism, in my experience at least part of this objection is based on results not method. I do think some conservative readings of the original meaning of the text have been distorted to reach certain results. And where inconvenient original meaning is conceded--for example, with the Ninth Amendment--the argument then immediately shifts to nonoriginalist claims about judicial "role." If a commitment to originalism means anything, however, it should mean letting the chips fall where they may with respect to results.

With all this in mind, it was noteworthy to see a lengthy feature article on originalism in the Wall Street Journal's weekend section. Entitled Rethinking Original Intent, the subtitle is: "The debate over the Constitution's meaning takes a surprising turn; a pivotal gun-rights case." The article is well worth reading. Here is a taste:
This new twist on originalism is gaining momentum, and its proponents hope it will lead courts to take a more expansive view of individual rights. Although nurtured by liberals -- including some with close ties to the Obama administration -- some conservatives are backing the broader application of the originalist method. In uniting some unusual allies, the Illinois gun-rights case could be the vehicle to correct what scholars on the left and right say is a 136-year-old constitutional wrong.

The Constitutional Accountability Center brief served in effect as an intellectual loss leader for liberals frustrated by conservative success in the battle over the Constitution's meaning. Douglas Kendall, the center's head, says he personally supports gun control, but if courts embrace his arguments, the door could open to a new era of liberal jurisprudence.

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. The 13th, 14th and 15th amendments radically altered the structure of American federalism, elevating federal power over that of the states, and giving individual rights pre-eminence.
Whatever its weaknesses, the article is important evidence that the Privileges or Immunities Clause may indeed rise from the grave that was dug for it in The Slaughter-House Cases. Indeed, I don't think the Court would have to reverse Slaughter-House to enforce a right to keep and bear arms; it would only have to reverse the vile U.S. v. Cruikshank. (For why Cruikshank is vile see The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction)

I have procrastinated about blogging about this because the subject quickly gets complex. for example, is this a good or a bad thing for originalism? Many conservative originalists would find this development loathsome. But I think that any shift to a focus on the original meaning of the text can only be a good thing. Consider the originalist debate between Justices Scalia and Stevens in Heller. This is far preferable to interpreting the Constitution according to the sort of allegedly pragmatic considerations of Justice Breyer in Heller.

Of course, any assertion of original meaning must be confined to original meaning. Moving to the "original principles" underlying the text and then using these principles to decide cases is a tried and tested way of avoiding rather than adhering to the original meaning of the text. But the purpose of this post is merely to report the news of progressive originalism and the increasing likelihood of reviving the Privileges or Immunities Clause in the context of gun rights. We report, you decide.

"North Korean Officials Cross the Border To Arrest US Journalists,"

reports the Times (London):

Security officials from North Korea have detained two Korean-American journalists [Laura Ling and Euna Lee], apparently while they were on the Chinese side of the border and filming into the closed Stalinist state.

The report by South Korea's YTN channel quoted a South Korean government official as saying that the guards had crossed the border into Chinese territory to arrest the pair after they ignored warnings to stop filming.

The two women worked for an online news company based in California, the report said....

If the North Korean guards did cross the Yalu or the Tumen rivers that demarcate the border, this could prove extremely embarrassing for Beijing, which is the only major ally of isolated North Korea and its main source of economic aid....

More from ABC News, quoting a State Department spokeswoman:

We are aware through reliable channels on the morning of March 17, that two American citizens were taken into custody across the Tumen River from China into North Korea by what appeared to be North Korean border guards....

We are working with the Chinese government in the area to get information on the whereabouts and welfare of the Americans in question. We have also been in touch with North Korean authorities to express our deep concern about this situation. We have also been in touch with our protecting power, the Swedish Embassy in Pyongyang....

"Protecting power" is of course a diplomatic term of art here, rather than a claim about any likely forceful protection.

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OK, this is weird: President Obama's official chief White House photographer, Pete Souza, was also President Reagan's official photographer. According to Souza, this photo taken of Reagan in Red Square shows what appears to be a young Vladimir Putin posing as a tourist during his time in the KGB.

Putin with Reagan

In an interview with NPR,
Souza recounts a story from a trip to Russia with Reagan. He shot photos of Reagan as the president toured Moscow's Red Square with then-Soviet leader Mikhail Gorbachev. Gorbachev introduced Reagan to various tourists, who asked the American president pointed questions about subjects such as human rights in the United States. Souza says he remembers turning to one of the Secret Service agents standing nearby. "I can't believe these tourists in the Soviet Union are asking these pointed questions." The agent replied, "Oh, these are all KGB families."
The photo was posted on Foreign Policy's blog FP, though Ed Morrisey expresses some doubts on Hot Air. We report, you decide.

Free trade petition:

My friend Tom Palmer, with his colleagues at the Atlas Global Initiative for Free Trade, Peace, and Prosperity, is (as part of a larger campaign) circulating a free trade petition, which will be unveiled on April 1st before the G20 meetings in London. He encourages everyone, especially (but not only) economists, to sign it, and to share it with friends, colleagues, professors, and the like. (I also recommend that people cross-post this on their blogs, especially econny blogs.)

Here's the text of the petition:

Free Trade Is the Best Policy

The specter of protectionism is rising. It is always a dangerous and foolish policy, but it is especially dangerous at a time of economic crisis, when it threatens to damage the world economy. Protectionism’s peculiar premise is that national prosperity is increased when government grants monopoly power to domestic producers. As centuries of economic reasoning, historical experience, and empirical studies have repeatedly shown, that premise is dead wrong. Protectionism creates poverty, not prosperity. Protectionism doesn’t even “protect” domestic jobs or industries; it destroys them, by harming export industries and industries that rely on imports to make their goods. Raising the local prices of steel by “protecting” local steel companies just raises the cost of producing cars and the many other goods made with steel. Protectionism is a fool’s game.

But the fact that protectionism destroys wealth is not its worst consequence. Protectionism destroys peace. That is justification enough for all people of good will, all friends of civilization, to speak out loudly and forcefully against economic nationalism, an ideology of conflict, based on ignorance and carried into practice by protectionism.

Two hundred and fifty years ago, Montesquieu observed that “Peace is the natural effect of trade. Two nations who differ with each other become reciprocally dependent; for if one has an interest in buying, the other has an interest in selling; and thus their union is founded on their mutual necessities.”

Trade’s most valuable product is peace. Trade promotes peace, in part, by uniting different peoples in a common culture of commerce – a daily process of learning others’ languages, social norms, laws, expectations, wants, and talents.

Trade promotes peace by encouraging people to build bonds of mutually beneficial cooperation. Just as trade unites the economic interests of Paris and Lyon, of Boston and Seattle, of Calcutta and Mumbai, trade also unites the economic interests of Paris and Portland, of Boston and Berlin, of Calcutta and Copenhagen – of the peoples of all nations who trade with other.

A great deal of rigorous empirical research supports the proposition that trade promotes peace.

Perhaps the most tragic example of what happens when that insight is ignored is World War II.

International trade collapsed by 70 percent between 1929 and 1932, in no small part because of America’s 1930 Smoot-Hawley tariff and the retaliatory tariffs of other nations. Economist Martin Wolf notes that “this collapse in trade was a huge spur to the search for autarky and Lebensraum, most of all for Germany and Japan.”

The most ghastly and deadly wars in human history soon followed.

By reducing war, trade saves lives.

Trade saves lives also by increasing prosperity and extending it to more and more people. The evidence that freer trade promotes prosperity is simply overwhelming. Prosperity enables ordinary men and women to lead longer and healthier lives.

And with longer, healthier lives lived more peacefully, people integrated into the global economy have more time to enjoy the vast array of cultural experiences brought to them by free trade. Culture is enriched by contributions from around the world, made possible by free trade in goods and in ideas.

Without a doubt, free trade increases material prosperity. But its greatest gift is not easily measured with money. That greatest gift is lives that are freer, fuller, and far less likely to be scalded or destroyed by the atrocities of war.

Accordingly, we the undersigned join together in a plea to the governments of all nations to resist the calls of the short-sighted and the greedy to raise higher the barriers to trade. In addition, we call on them to tear down current protectionist barriers to free trade. To each government, we say: let your citizens enjoy not only the fruits of your own fields, factories, and genius, but also those of the entire globe. The rewards will be greater prosperity, richer lives, and enjoyment of the blessings of peace.

Again, the link to sign the petition is here.

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"Ooooga Bugga! Drugs!!!!":

A federal district court has just upheld another religious exemption claim for the use of hoasca, this one in Church of the Holy Light of the Queen v. Mukasey. The case naturally relies heavily on the Supreme Court's Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) decision, but has some interesting factual discussion specific to this particular case, and the government's reasons for the challenge.

My UCLA School of Public Affairs colleague Mark Kleiman (Reality-Based Community) — a leading drug policy scholar — was an expert witness for the claimants in the O Centro case. His post on this case provides the quote that I use in the title of my post.

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Tribe on Taxing AIG Bonuses:

Conor Clarke posts Laurence Tribe's views on whether the federal government could effectively take back the AIG bonuses without running afoul of constitutional prohibitions. Tribe's bottom line:

It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.

If Professor Tribe is right, I wonder what such a targeted tax provision would look like. Megan McArdle also wonders what implications this will have for other institutions that received TARP.

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Are You a Parent of a Teen?

If so, you might want to note the first three definitions of the word "teen," from the Oxford English Dictionary:

1. Harm inflicted or suffered; injury, hurt, mischief; damage.

2. Irritation, vexation, annoyance; anger, wrath, rage; spite, ill-will, malice. transf. Something vexatious, a cause of annoyance; a trouble.

3. Affliction, trouble, suffering, grief, woe.

As they say, I am not making this up. Note, though, that the OED marks these definitions as "arch[aic]" and "Obs[olete]" -- an obvious error.

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Obama's East Coast Bias:

President Obama released his NCAA basketball tournament predictions yesterday, and what is most noticeable is the complete disrespect the President shows for the Pac-10 conference. Other than games between #8 and #9 seeds — usually considered toss-ups — Obama plays it pretty safe and picks mostly higher seeds (lower numbers). He picks only three upsets in the first round, and his projected losers in all three of these games are Pac-10 teams (#11 VCU over #6 UCLA, #10 Maryland over #7 California, and #11 Temple over #6 Arizona State). In the second round, the president predicts only 2 upsets, and Pac-10 regular season champion #4 Washington is on the losing end of one of these. Overall, Obama predicts Pac-10 schools will end the tournament with a combined record of 1-6. We Californians know that east coast bias is nothing new in college sports, but it is surprising to see it coming from Obama, whose brother-in-law, Craig Robinson, is the head basketball coach at Pac-10 school Oregon State!

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Wednesday, March 18, 2009

Charles Murray on "The Happiness of the People":

Last week I heard Charles Murray speak at the AEI annual dinner and the topic of his remarks was "The Happiness of the People." I thought it an extraordinarily insightful and challenging speech, especially for someone with strong law & econ instincts like myself. It is really a remarkable statement on what exactly it means to be human and to engage in a "life well-lived" as he puts it. Almost every reader will find something to disagree with in it (I know some of the people at my table did). But at its root I think that Murray is onto something important about what it means to live, flourish, and be happy as a human being. For me, at least, after 43 years on this planet I think I'm coming to appreciate many of the things Murray has to say about what makes a satisfying, rewarding life much better than I did in my younger days.

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"[Carnegie Mellon University Computer] Algorithm Enables Chain of 10 Kidney Transplants":

My friend Haym Hirsh (a computer science professor and a CMU graduate) writes:

Person A needs a new kidney. His relative B is willing to give one up for A, but B is not a good tissue match.

Person C needs a new kidney. His relative D is similarly willing to give one up for C, but D is not a good tissue match.

But what if B is a good match for C and D is a good match for A? “Swapping” donors in this fashion is called a paired swap.

But now what if there were still no matches, and there are two more people E and F and the tissue matches are such that, collectively, everyone who wants to donate a kidney does so, and everyone who wants to get one does so.

And now what if it takes a 10-way swap to make this happen? It’s previously been too difficult to scale things up much beyond paired swap given the many many people in the national registries for kidney transplants. Computing has just come to the rescue – computer scientists at CMU have managed to make this happen, as reported in the New England Journal of Medicine. See http://www.csdhead.cs.cmu.edu/blog/2009/03/17/cmu-algorithm-enables-chain-of-10-kidney-transplants/ for an overview.

Of course, I have argued that a very old technology is ultimately the most effective way of solving these problems, but so long as we insist on refusing to use that, I applaud other temporary alternatives.

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Second Annual VC March Madness Pool:

I've received a number of emails wondering whether I would do another VC March Madness Pool. Sure, what the heck! And my colleague Ross Davies, Editor of the Green Bag, has again offered to put up a Justice Kennedy bobblehead to the winner. And I'll throw in a Volokh Conspiracy t-shirt again to boot. And this year my bracket won't be fouled by an overoptimistic choice of George Mason to the Final Four (nor apparently will my NIT bracket be so fouled, if I had an NIT bracket). Sorry I'm getting to this late, but its been a busy week.

So if you'd like to join, I've set up the league on CBS Sportsline. One bracket per person please. Submitting more than one bracket will result in referral to your local bar authority for disciplinary proceedings (not really). Note that the scoring system is weighted by upsets.

Jim Lindgren is the defending champion, as one of the few people last year who correctly chose Kansas to win it all.

Here's the info:

Our group is: http://volokh.mayhem.cbssports.com/e?referrer=MKTG_BM_INVITE

Our password is: zywicki

Have fun!

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The ABA's "Perceived Liberal Bent":

Well, it turns out the ABA's liberal bent isn't just "perceived," at least according to a new study reported in the National Law Journal (HT: Curt Levey).

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Health Reform: ERISA and Pay or Play II

San Francisco is not the only place to adopt a pay or play initiative. In the past few years, Maryland, Massachusetts, and Suffolk County, New York have all adopted such statutes. California adopted a pay or play statute in 2003, but it was overturned by Proposition 72 in the 2004 election. These statutes required employers to spend at least a specified percentage of their payroll (Maryland) or a specific amount per worker per hour (Suffolk County) or their “fair share” of the cost of coverage (Massachusetts).

The Maryland statute was enjoined by the 4th Circuit in Retail Industry Leaders Association v. Fiedler, 475 F.3d 180 (4th Cir. 2007). The Suffolk County ordinance was also enjoined by the District Court and was not appealed to the 2nd Circuit. The Massachusetts statute has not yet been challenged, and the (comparatively) modest imposition on employers makes it less likely it will be preempted under ERISA. For a detailed examination of that issue, see this paper by Professor Amy Monahan of Minnesota.

The Maryland statute and Suffolk County ordinance, although facially neutral, were nonetheless carefully targeted: the Maryland statute was widely known as the “Wal-Mart bill,” since it was drafted so as to exclude every other company in the state, and the Suffolk County ordinance targeted non-unionized retail stores selling groceries. Both were strongly backed by local and national unions. Public choice, anyone?

Finally, pay or play strategies dovetail nicely with the widespread perception that employers are paying for health insurance for their employees – and employers who fail to contribute are shirking their responsibility. In reality, employer contributions toward health coverage for their employees are simply another form of compensation – meaning that it is workers who bear the costs of coverage – whether it is provided voluntarily, or as the result of a “pay or play” mandate.

Related Posts (on one page):

  1. Health Reform: ERISA and Pay or Play II
  2. Health Reform: ERISA and Pay or Play
54 Comments

Gun Sales Up:

Last year, I blogged about claims that gun sales were up due to concerns about the economy; I expressed skepticism, given that the rises and falls seemed to have little to do with economic trends. But more recent claims that gun sales rose following President Obama's election turn out to be accurate, at least judging by background check data. Here is the table I posted last October, updated to include October 2008 to February 2009; each cell indicates a percentage increase over sales during the same month of the preceding year, which would account for seasonal variations:

JanFebMarAprMayJunJulAugSepOctNovDecTotal
2001, relative to 20000-5-1-41-2-141022964
2002, relative to 200143-265-4-1-2-16-18-10-8-5
2003, relative to 2002-223-1020-121-530
2004, relative to 20036203-435-201672
2005, relative to 2004-134332037-2483
2006, relative to 2005131010612111221161413812
2007, relative to 20061511152028292010363-211
2008, relative to 2007512712103184315422414
2009, relative to 20082923

So we see that there has been a big increase in Nov. 2008 to Feb. 2009 over the corresponding months the preceding years. The increase is far greater than what we've seen in past month ranges since 2001 — April to July 2007 was the only thing close to it, and it was substantially below what we've seen, especially in the month of the election.

This can't just be explained as seasonal variation. It can't be just explained by population growth. I know of no explanation stemming from new technological or marketing developments (e.g., some especially appealing new gun going on the market), though if some of you know it, I'd love to hear it. This does not seem to be just a brief blip. And the timing does seem to be more closely linked to the election than to the economic downturn more broadly.

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Happy St. Patrick's Day!

Enjoy this version of "A Nation Once Again," voted the world's most popular song by BBC listeners.

This great and timeless song fills me with joy about nations such as Ireland, Israel, and the United States, which have won their independence, and with hope for Taiwan, which seeks to perfect its independence. May the great example of the Irish freedom fighters of 1916-21 (and in the centuries before) give strength to the all the opppressed people around the world--in Tibet, Darfur, and many other places--who still seek their right of self-determination, and to live in peace in the community of nations.

The Irish revolution was inspired by the American Revolution, and, as "A Nation Once Again" illustrates, by the brave Spartans at Thermopylae ("three hundred men") and by the Roman story of Horatio at the Bridge ("and three men"). "A Nation Once Again" was written by an Irish Protestant, showing that Irish nationalism at its best, is non-sectarian and inclusive, as the Proclamation of the Republic affirmed. The great liberation, from the Exodus to the present, is the common heritage and the common hope of all freedom-loving peoples. God Save Ireland, and God Bless America, "For, Freedom comes from God's right hand, And needs a Godly train."

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Confronting the Third-Party Doctrine: VC readers in the Berkeley, California area -- or at least those area readers who are interested in Fourth Amendment law -- might be interested in this event hosted at the Bancroft Hotel tomorrow afternoon: Confronting the Third Party Doctrine and the Privacy of Personal Information, sponsored by the Berkeley Center for Law & Technology. The one-and-only Richard Epstein will be presenting his own take on the third-party doctrine, and the always-insightful Erin Murphy and myself will be offering comments. (As you might guess, my own comments will reflect my recent article in favor of the third-party doctrine.)
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North Korea - A Real-Life 1984:

In a more serious vein than my last North Korea post, it is worth noting that North Korea's social structure more closely approximates that of George Orwell's 1984 than even the Stalin-era Soviet Union. For example, the entire North Korean population is rigorously sorted into three categories: "Core" (trusted supporters of the regime), "wavering," and "hostile." The "hostiles" make up some 25% percent of the population and are ruthlessly discriminated against in every aspect of life, as North Korea expert Kongdan Oh explains at the above link:

An individual's political loyalty is likely to be re-examined anytime he or she comes to the attention of the authorities, for example when being considered for a job, housing, or travel permit. One's political classification is not a matter of public knowledge, nor is it known to the individual, but it is recorded in the personal record that follows every North Korean throughout life, and of course becomes part of the record of that person's children and relatives as well.

Only people classified as politically loyal can hope to obtain responsible positions in North Korean society. People classified as members of the wavering class are unlikely to be considered for membership in the Korean Workers Party. People who fall into the hostile class are discriminated against in terms of employment, food, housing, medical care, and place of residence.

Belonging to a minority religious group or being a relative of an "enemy of the people" automatically puts you in the "hostile" category.

This tripartite division of the population is very similar to that of 1984, where the people were divided into the Inner Party, the Outer Party, and the downtrodden Proles. Of course, this is no coincidence. After all, Orwell's fictional Oceania was modeled on Stalin's USSR, and the same can be said of today's North Korean regime. However, even the Soviet government never classified the entire population quite as rigidly as North Korea does.

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Tuesday, March 17, 2009

Vease:

Spotted in a law review article on Westlaw: "Vease Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026 (2003)." Of course, it shouldn't have seemed strange at all.

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Kozinski Dissent from Denial of Rehearing En Banc, Joined by Reinhardt and Willie Fletcher:

A fairly technical Armed Career Criminal Act issue, made interesting by Kozinski's customary verve and clarity.

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"Would a Super-Tax on AIG Bonuses Be an Unconstitutional Bill of Attainder?"

David Kravitz (Blue Mass Group) -- a very smart appellate lawyer and a former law clerk for Justice Sandra Day O'Connor -- writes on the subject. The most recent case I know of involving bills of attainder in the business law context is Consolidated Edison Co. v. Pataki, 292 F.3d 338 (2d Cir. 2002), which struck down as a bill of attainder the following New York statute:

§ 1. Declaration of legislative findings. The operator of a nuclear generating facility has a high duty of care to protect the health, safety and economic interests of its customers. Rate regulation of nuclear operators should discourage the taking of risks with regard to potential threats to public health and safety.

By continuing to operate steam generators known to be defective, and thereby increasing the risk of a radioactive release and/or an expensive plant outage, the Consolidated Edison Company failed to exercise reasonable care on behalf of the health, safety and economic interests of its customers. Therefore it would not be in the public interest for the company to recover from ratepayers any costs resulting from the February 15, 2000 outage at the Indian Point 2 Nuclear Facility.

§ 2. With respect to the February 15, 2000 outage at the Indian Point 2 Nuclear Facility, the New York state public service commission shall prohibit the Consolidated Edison Company from recovering from its ratepayers any costs associated with replacing the power from such facility. Such prohibition shall apply to any such costs incurred until the conclusion of such outage, or incurred at any time until all defective steam generation equipment at the facility has been replaced, whichever occurs later. Such prohibition shall apply to automatic adjustment mechanisms as well as base rates or any other rate recovery mechanism. The commission shall order the company to refund any such costs which have been recovered from ratepayers.

I can't say anything beyond that, since I'm not an expert on bills of attainder, and unfortunately don't have the time right now to get up to speed on the subject.

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Communism Provides Pizza for the Masses - Or at Least the Communist Party Elite:

North Korea may have the most oppressive government on earth, and its people may be starving as a result of horrendous communist policies. But the North Korean proletariat was surely thrilled to learn that their Dear Leader Kim Jong Il has thoughtfully provided "authentic" Italian pizza for a few of his most privileged subjects. And it only took a mere ten years to achieve this triumph of socialist central planning:

It has taken almost 10 years of work, but North Korea has acquired the technology to launch a project very dear to its leader's heart - the nation's first "authentic" Italian pizzeria.

The launch of Pyongyang's first Italian restaurant meanwhile brings to fruition a ten-year effort by Kim Jong-il - a renowned gourmand and lover of western food - to create the perfect pizza and pasta in his homeland.

Last year a delegation of local chefs was sent by Kim to Naples and Rome to learn the proper Italian techniques after their homegrown efforts to mimic Italian cuisine were found by Kim to contain "errors".

In the late 1990s Kim brought a team of Italian pizza chefs to North Korea to instruct his army officers how to make pizza, a luxury which is now being offered to a tiny elite able to afford such luxuries in a country that cannot feed many of its 24 million inhabitants.

Although the news story isn't clear on this point, I suspect that the access to the Pyongyang Italian pizzeria is limited to those with special privileged status given by the government, as was standard for stores providing unusual goods in most communist societies.

On the upside, Kim Jong Il's plan to provide pizza for the toiling masses of North Korea seems to have worked out better than his earlier plan to alleviate food shortages by breeding imported giant rabbits, which was aborted when the greedy Dear Leader decided to eat the initial batch of rabbits himself.

Related Posts (on one page):

  1. North Korea - A Real-Life 1984:
  2. Communism Provides Pizza for the Masses - Or at Least the Communist Party Elite:
47 Comments

Come Now, Is This Really About "International Law"?

From Zenit (a Catholic news service):

The proposal of a member of the social networking Web site Facebook suggesting that the Vatican should exchange its treasures for food in Africa is an impossibility due to international law, says Cardinal Paul Josef Cordes.

The president of the Pontifical Council Cor Unum said this Friday to ZENIT at a press conference Friday in which he commented on the online petition titled "Exchange the Vatican’s Treasures for Food for Africa. Do You Want to Sign a Petition?"

The cardinal noted that, apart from the ideological aspect of the proposal, the Pope cannot consider it because he is prevented from doing so by international law....

Alberto Juesas Escudero of Spain launched the initiative, which now has more than 40,000 supporters. Escudero claims "it is a shameful to see the Vatican’s riches and then watch the news."

He explained that what motivated him to issue this invitation was that he believes the Vatican "does not admit its errors. [...] It does not preach by example. Jesus was born in a cave and lived in poverty."

The youth concluded: "The Vatican is a disgrace! The Catholic religion is a disgrace!"

In answer to ZENIT’s questions, Cardinal Cordes ... explained, "I had looked into [the status of the Vatican’s holdings] and found out that the Church cannot do what it wants with the works of art that are in the Vatican."

In reality, he said, the Church "has the duty to conserve the works of art in the name of the Italian state." He affirmed, "It cannot sell them." ...

As Religion Clause (Prof. Howard Friedman) points out, the 1929 Treaty between Italy and the Vatican provides, "The artistic and scientific treasures existing within the Vatican City and the Lateran Palace shall remain open to scholars and visitors, although the Holy See shall be free to regulate the admission of the public thereto." The Vatican therefore indeed might not be free to sell off the paintings without violating its obligations to Italy.

But if the Vatican really wanted to sell the paintings and still comply with its obligations, it could just ask Italy to amend the treaty; nothing says such bilateral treaties are unamendable or even extremely hard to amend. And if Italy says no, then it could blame Italy. Or it could just say that it doesn't want to sell the treasures, in my view a perfectly defensible position. But appealing to "international law," as if it were some sort of unchangeable command that strongly constrains the Vatican here, strikes me as something of a smoke screen.

(Whether the reference to "international law" was made by the Cardinal, or added by Zenit, "a non-profit international news agency, made up of a team of professionals and volunteers who are convinced of the extraordinary richness of the Catholic Church's message, particularly its social doctrine, ... [and who see] this message as a light for understanding today's world," I can't say for sure, since Zenit doesn't link to the text of Cordes's comments.)

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Anti-Palestinian Fliers Lead to Calls for Police Investigation; Police Say The Fliers Are Free Speech:

The University of Maryland Diamondback reports:

University of Maryland Palestinian students and supporters were confronted with malevolent opposition Tuesday in the form of posters bearing vivid anti-Palestine propaganda that students said made them feel threatened, though it did not stop Palestinian Solidarity Week from continuing Wednesday night....

One such flier depicted a woman, wearing a traditional Muslim burqa and holding an AK-47 in one hand and a bomb-toting baby in the other. "What did she teach her child today?" was written above the picture.

This poster and others like it were found after Tuesday's "What would MLK Say About Gaza?" event, which was hosted by several student organizations....

Senior dietetics major Gisica Abdallah was at Tuesday's event — which was held in Jimenez Hall — when her friends brought the posters to her attention....

"They were everywhere," Abdallah said. "The hatred that was portrayed, that was the most hurtful thing."

Abdallah then began tearing down as many signs as she could before running to the Stamp Student Union, where she brought the fliers to Vice President for Student Affairs Linda Clement.

"[The posters] made a number of our students feel very uncomfortable," Clement said. "We have been doing things all day to investigate the incident. ... We have people examining surveillance tapes in the union and will be working with University Police to try and figure out who did this." ...

A University of Maryland Police spokesman reports that the department concluded that, "Basically, these fliers were free speech, [p]lain and simple."

But the university administration seems to take a different view:

The fliers ... were in violation of the university's policy on free speech ....

"There's such a thing as free speech," [Vice President for Student Affairs Linda Clement] said. "But when you post things anonymously and make others feel threatened, that's not free speech."

A few thoughts:

1. If the signs were in violation of a valid and content-neutral posting policy (e.g., that one can't post signs on building walls), they might indeed be properly punished, and removed.

2. Likewise, if there was a policy banning anonymous postings on university bulletin boards, it might be constitutional. The government may not ban anonymous speech generally, but it's possible — though not fully settled — that the university may indeed restrict anonymous posting on property that it voluntarily opens up for student access. This wouldn't make the posters illegal (unless they were seen as some sort of trespass, which I doubt), but perhaps it might justify the removal.

3. But if those aren't the rationales, and the university views the posters as unprotected — and is willing to countenance their removal by students — because of the message they express, then the university may do so only if the speech really falls within the narrow First Amendment exception for threats. Judging by the newspaper account, and by the police department's conclusion, there seems to be no evidence of that here. If any of you can point me to the actual posters involved, I'd love to analyze them (and link to them so readers can make the judgment for themselves).

Of course, there's the now customary quote about the "difference between free speech and hate speech":

"There is a difference between free speech and hate speech," said government and politics and Spanish language and literature major Sana Javed, who helped to organize Palestinian Solidarity Week. "They were an irrelevant commentary on Islam, but we were talking about politics."

No, there is no such difference under First Amendment law. Nor does First Amendment law draw a distinction between "commentary on Islam" (or Christianity or Judaism or atheism or whatever else) and "talking about politics," since much commentary on religion is commentary on politics.

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"[Saudi Commission for Promotion of Virtue and Prevention of Vice" in Combat with Sorcerers, Magicians":

From the Saudi Gazette:

The Commission for Promotion of Virtue and Prevention of Vice (Hai’a) in Al-Ahsa arrested a sorcerer who dealt in magic and provided his services to several men and women, who turned to him out of a lack of religious motivation and ignorance, that sorcery became the talk of the town.

Sheikh Adel Faqih, an expert in such matters and director of the Hai’a branch of sorcery in Riyadh, said, “We are in an Islamic country which is governed by Islamic law which prohibits polytheism. Sorcery and magic are considered polytheism in Islam. Unfortunately, sorcery is not a new phenomenon. It is a problem that has existed since the time of Prophet Muhammad (peace be upon him).”

Sheikh Faqih explained that a sorcerer can be identified when he asks for the name of a patient and for the name of the patient’s mother or if he is seeking to buy an animal with certain features. He can also be identified if he asks for a sheep to be killed without mentioning Allah’s name and asks to stain the body with the animal’s blood or if he asks for similar unusual things.

Sheikh Faqih said, “Sorcery cannot be divided into two branches. There is only one kind of sorcery. There is no such thing as black or white magic. Allah said that magic is infidelity and no one can be a sorcerer unless he offers sacrifices to spirits and disbelieves in God.” “Sorcery deals with amulets and talismans which lead people to believe that such things can help them, but that Allah cannot,” he added. “There are several awareness programs conducted by the Hai’a through local and international media to counteract the phenomenon of magicians and sorcerers,” Sheikh Faqih said.

Thanks to the indispensable Religion Clause (Prof. Howard Friedman) for the pointer.

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Health Reform: ERISA and Pay or Play

A majority of Americans obtain health insurance through their place of employment, or the place of employment of an immediate family member. The Census Bureau provides more detail in Figure 7, here. However, small employers, and employers in certain sectors of the economy (e.g., retail and agriculture) are much less likely to offer coverage. In the view of many, employers that fail to offer coverage to their employees (leaving aside, for the moment, the affordability of that coverage), are morally blameworthy free-riders. A popular policy response is a “pay or play” initiative. Employers can either offer health insurance to their employees ("play") or pay a tax/penalty to the state ("pay"). These initiatives may be subject to ERISA preemption, depending on how they are designed and implemented.

Last week, the 9th Circuit denied en banc review of the panel decision in Golden Gate Restaurant Association v. City and County of San Francisco. The case turned on whether ERISA preempted San Francisco’s attempt to impose a mandate on employers to provide health insurance to their employees, or make payments to the city, with the precise amount to be paid tied to the number of employees, hours worked, and whether the employer was non-profit or for-profit. The panel upheld the law, overturning the district court’s decision. Eight judges dissented from the denial of en banc review. The summary paragraph of the dissent is as follows:

Our decision in this case creates a circuit split with the Fourth Circuit Court of Appeals [in Retail Industry Leaders Association v. Fiedler, 475 F.3d 180 (4th Cir. 2007)], renders meaningless the tests the Supreme Court set out in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), conflicts with other Supreme Court cases establishing ERISA preemption guidelines, and, most importantly, flouts the mandate of national uniformity in the area of employer-provided healthcare that underlies the enactment of ERISA.

Judge Fletcher, who wrote the original panel disputed these claims – mostly by repeating the arguments he had made in the panel opinion. Professor Ed Zelinsky of Cardozo has written a detailed critique of the panel’s decision here. The plaintiff has vowed to seek Supreme Court review. A detailed chronology of all the filings in the case may be found here.

Related Posts (on one page):

  1. Health Reform: ERISA and Pay or Play II
  2. Health Reform: ERISA and Pay or Play
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Unusual Voting Rights Case:

Hans Bader calls my attention to this victory for the United States in an unusual voting rights case in the 5th Circuit. Why ? Because it documents ongoing voting rights violations by the black majority against the white minority in a county in Mississippi. Hans A. von Spakovsky summarizes the case and criticizes the DOJ's muted response here.

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Upcoming Speech on Kelo and Post-Kelo Reform at University of Florida Law School:

For readers who may be in the area, I will be speaking on Kelo v. City of New London and post-Kelo eminent domain reform at the University of Florida Law School at noon this Thursday, March 19. Florida law professor Michael Allan Wolf will be commenting on my talk, and I expect that we will disagree somewhat over both Kelo and various aspects of the political reaction to it. The event will be held in Holland 345.

Many of the issues I intend to cover are ones I discussed in my academic work on Kelo and the Kelo backlash (see here and here).


The ABA's Insider Role in Evaluating Judicial Nominees is back. No surprise there, of course: The ABA was cut out of the process in 2001 because of its perceived liberal bent, and that bent is an asset rather than a liability for a Democratic Administration.
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"MRI Lie Detection To Get First Day in Court":

Wired reports:

In an upcoming juvenile-sex-abuse case in San Diego [a child protection hearing to determine if the minor should stay in the home of the custodial parent accused of sexual abuse], the defense is hoping to get an fMRI scan, which shows brain activity based on oxygen levels, admitted to prove the abuse didn't happen.

The technology is used widely in brain research, but hasn't been fully tested as a lie-detection method. To be admitted into California court, any technique has to be generally accepted within the scientific community.

The company that did the brain scan, No Lie MRI, claims their test is over 90 percent accurate, but some scientists and lawyers are skeptical.... The company's report says fMRI tests show the defendant's claim of innocence is not a lie.

Laboratory studies using fMRI, which measures blood-oxygen levels in the brain, have suggested that when someone lies, the brain sends more blood to the ventrolateral area of the prefrontal cortex. In a very small number of studies, researchers have identified lying in study subjects with accuracy ranging from 76 percent to over 90 percent (pdf). But some scientists and lawyers like [Stanford law professor Hank] Greely doubt that those results will prove replicable outside the lab setting, and others say it just isn't ready yet....

[On the other hand,] even if the science behind a technology isn't fully established, Brooklyn Law School's Edward Cheng, who studies scientific evidence in legal proceedings, said it might still be appropriate to use it in the courtroom.

"Technology doesn't necessarily have to be bulletproof before it can come in, in court," Cheng.

He questioned whether society's traditional methods of lie detection, that is to say, inspection by human beings, is any more reliable than the new technology....

Read the whole article -- very interesting stuff both on the possible problems with the technology and some of the legal questions it raises (on which I can't opine, since I'm not an expert in scientific evidence law). Thanks to GeekPress for the pointer.

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More on Vote-Changing To Free Jurors from a Long Trial:

My colleague Steve Yeazell, an expert on civil procedure (and a historian of civil procedure), writes this apropos the "Lawyer Disbarred for Switching Vote as a Juror Solely in Order To Return To His Busy Law Practice" post:

I am ... a little dubious about the less-noted part of the case -- the trial court’s order of a new trial on the basis of Fahy’s affidavit. I don’t know the specific California law on this question, but the trend in the US has been to insulate juries from most internal scrutiny -- scrutiny, that is, that asks about why the jury came to the verdict it did, so long as, seen from outside, it’s rationally defensible, as this one clearly was.

In a leading case, written by Learned Hand, the Second Circuit affirmed a defense verdict reached under the following circumstances: deadlocked 7-5 for the defense, the jury learned that one of its members’ sons had just been killed in WWII. They agreed that the minority would vote with the majority so the member could go home to grieve, thereby producing a unanimous verdict. Held: no grounds for a new trial. Jorgenson v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947): “Not only ought we not upset the judge’s discretion in refusing to grant a new trial for such a reason; but, had he granted the motion ... we should not have sustained it.”

Yes, the Fahy verdict is distinguishable, but not by a lot. And, even if the judge should not have granted a new trial, that doesn’t speak to the disbarment order: it may be that for a lawyer-juror to rank his personal interests this high is a special problem. (And this was not Fahy’s first brush with bar discipline.) But as you imply in your blog: one bets a lot of jurors throw in the towel after a week of deliberation and decide that the majority must be right. Is that really a terrible thing? The standard “dynamite” charge to deadlock jurors in fact encourages them to think about whether their fellow jurors maybe have it right.

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Kinkopf on Signing Statements: Over at the Executive Watch blog, Georgia State lawprof and former OLC lawyer Neil Kinkopf has a post disagreeing with co-blogger Eric Posner's suggestion that signing statements don't really matter.

  My own take is sort of a middle ground. On one hand, I agree with Eric that signing statements themselves have no legal effect (at least that I know of). On the other hand, an Administration that issues them in public is probably acting on them in private (or will, if the relevant facts are presented). As I see it, signing statements are sort of like "present sense impressions" allowed as exceptions to the hearsay rule: Sure, we don't know with certainty that the person is being truthful, but it's more likely that the person is fairly representing the state of his mind or his understanding in that setting than in other ones.

  Put another way, signing statements are indirect public evidence of a particular view of presidential power. The implicit constitutional arguments made by signing statements are therefore reasonably helpful evidence as to what an Administration is doing on matters not revealed to the public.
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Australia Bans Internet Access to Web Pages with Pictures of Aborted Fetuses?

That appears to be so according to a news site run by The Australian newspaper. The Australian blog Somebody Think Of The Children publishes what is said to be an e-mail from the government agency expressing its position (the text is consistent with one of the e-mails that The Australian is reporting about).

The site mentioned in the e-mail, http://www.abortiontv.com/Pics/AbortionPictures6.htm, indeed contains what purport to be pictures of aborted fetuses. They are quite gruesome, but in my view quite clearly legitimate aspects of political debate — even if one accepts the position (in my view an unsound position, but one that Western democracies outside the U.S. have generally accepted) that banning incitement to racial or religious violence or even racial or religious hostility is permissible.

According to the Australian Minister for Communications, Stephen Conroy,

Freedom of speech is fundamentally important in a democratic society and there has never been any suggestion that the Australian Government would seek to block political content.

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

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Cambridge MA talk today:

If any VC-ers are in the neighborhood and so inclined, I'm giving a book talk today over at Harvard Law School at 5 PM, and you're more than welcome to drop by. DavidP

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First Obama Court of Appeals Nominee

President Obama has just named his first court of appeals nominee -- district judge David Hamilton, nominated for the Seventh Circuit.

I had the pleasure of working with Judge Hamilton for several years on the Judicial Conference's Criminal Law Committee. He always struck me as a very sensible and reasonable person -- a good selection for the Seventh Circuit.

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"Boy Banned from Wearing Obama Mask in Skit":

From Oregon Live:

A mask similar to one President Barack Obama himself wore in a "Saturday Night Live" skit prompted a Portland school principal to ban a boy from performing while wearing it at his elementary school talent show after deciding the rubber likeness of the 44th president was "inappropriate and potentially offensive."

Dru Lechert-Kelly, 11, a fifth-grader at Llewellyn Elementary School in Southeast Portland, decided to dress up like his role model and dance to a popular YouTube song that features an Obama look-alike dancing to a parody called "I Can Do Whatever I Like." ...

When asked what was offensive about Dru's skit, Powell refused to discuss it.

Thanks to Don Surber and InstaPundit for the pointer.

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The NYT's Love-Hate Relationship with Blue Slips:

In its March 9 editorial on judicial nominations (which I discussed here), the New York Times called for eliminating the use of "blue slips," through which home-state Senators can block judicial nominations. Specifically, the Times' editorialists wrote:

Mr. Leahy must decide whether to follow the Senate’s “blue slip” tradition, which holds that judicial nominees should not move forward without their home-state senators’ support. Blue slips have no constitutional basis, are undemocratic and are subject to abuse. The Republicans abandoned them when they controlled the Senate under Mr. Bush. Blue slips should be allowed to die a quiet death.

I am no fan of blue slips, and never have been. Yet, as Robert Alt notes, this is something of a change of heart for the Times. Back in 2001, the Times was all about blue slips, encouraging their use by Senate Democrats to block President Bush's judicial nominees. Back then, just before and after Bush announced his first crop of nominees, the Times wrote:

  • "[P]ast abuse does not mean the Democrats should now abandon the blue-slip policy completely and give the Republicans carte blanche . . . ." (April 27, 2001, A24)

  • "A key is for the Democrats to stand firm on enforcing the prerogative under the so-called blue-slip policy that allows any senator to block a nominee from his home state." (May 11, 2001, A34)

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AIG Bonuses.

I wonder whether AIG could have paid the bonuses in toxic assets, derivatives such as were sold by their Financial Products division, or at worst, AIG stock.

Paying bonuses in toxic assets would have shifted risk to some of those who helped generate that risk and would improve AIG's balance sheet.

But that probably wasn't possible without declaring bankruptcy.


"Criminalizing [Children's] Communion?"

The Arkansas House of Representatives just passed An Act to Provide Criminal Liability for a Social Host Who Knowingly Serves Alcohol to Persons Under the Age of 21 ...:

3-3-219(a)(1) A person who exercises control over private property shall not knowingly allow a person under twenty-one (21) years of age who is not a child or ward of the person to:
(A) Consume alcohol on the private property; or
(B) Remain on the private property if the person under twenty-one (21) years of age consumes an alcoholic beverage on the property.
(2) This subsection applies only to a person who is present and in control of the private property at the time the consumption occurs.

(b)(1) A first violation of this section is a Class C misdemeanor.
(2) A second violation of this section is a Class A misdemeanor.
(3) A third or subsequent violation of this section is a Class D felony.

But as my friend Dan Greenberg, an Arkansas state legislator, points out:

Does this bill give an incentive for unmonitored underage drinking to occur? I think so, and I also think that the law would be better if it went the other way -- that is, to give an incentive for an adult to stick around and keep an eye on the problem, rather than leave. I understand that a couple of teenagers sitting around drinking beer is hardly an ideal situation, but this new bill makes the problem much worse by discouraging adult monitoring of any kind....

[Also,] I tend to think that a legal requirement to order a child off your property [see (a)(1)(B)] has its own set of problems. Maybe [the child] has a cell phone and can call for a ride, or maybe she can walk home. I hope so, and I hope she hasn’t had much to drink. And I hope it’s not too late at night -— especially once the new law we voted for last week kicks in and it’s a ticketable offense for a minor to drive from 11 p.m. to 4 a.m. Maybe if she has a car outside, her best bet is just to lock the doors and sleep it off....

This will [also] be a big problem for some religious communities, given that as far as I can tell we have just criminalized children’s Communion. (This is a traditional Catholic practice in which a child takes a tiny, ceremonial sip of wine.) Similar rites take place in some Jewish, Episcopalian, and Lutheran congregations -— and probably others, but I am just a lawyer and legislator and not a scholar of comparative religions....

Finally, the problem this bill’s trying to solve is already addressed in current state law. It’s already a criminal offense to “give, procure, or otherwise furnish” alcohol to someone under 21 (and that law, unlike this one, exempts religious ceremonies). It’s also a criminal offense to contribute to the delinquency of a minor. Both of those offenses, already on the books, carry harsher criminal penalties than this bill....

I spoke against this bill on the floor of the House. I wasn’t successful....

After we voted, the bill’s sponsor came over and assured me that the bill would be amended in the Senate to fix some of its problems. I tend to think that the only way to fix this bill’s problems is to run it through a shredder, incinerate the remains and bury what’s left in a big hole.

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Illinois’s special shame continues: Governor Confuses Democracy with Socialism.

Pat Quinn, our new governor – who seems to be a decent enough guy though of modest talents – on Monday seems to have confused one of Karl Marx’s and Joseph Stalin's most famous slogans with a democratic principle.

[Illinois] Governor Pat Quinn . . . says, "There will be some that will have a higher tax burden — but it’ll be based on the principle that all of us in a democracy can believe in: ability to pay. My philosophy is to cut taxes on as many people as possible in Illinois."

However, the Governor wouldn't comment on reports he wants to raise the state income tax [from its current three percent] to four and a half percent.

The governor says families of four making less than about 57–thousand dollars a year won't see their taxes go up.

The idea that contributions should be “from each according to his ability” to pay or otherwise contribute is half of the ultimate goal of an advanced Marxist state:

In a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor has become not only a means of life but life's prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly—only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!

Karl Marx, Critique of the Gotha Program.

In the 1936 Soviet Constitution, Joseph Stalin included Governor Quinn’s principle as half of the general principle of socialism:

"The principle applied in the U.S.S.R. is that of socialism: From each according to his ability, to each according to his work."

Governor Quinn seems to have forgotten a bunch of other democratic principles that have equally fine pedigrees, such as:

"One dollar, one vote."

"To each according to the contributions of their lobbyists."

"The Golden Rule: He who has the Gold, Rules."

"From the people, to the 'Friends of Angelo.'"

"From those who work hard, to those without cottages on the coast of Ireland."

and, of course, that old standby:

"Soak the rich."

UPDATE: "Ability to pay" is NOT a central principle of income taxation "that all of us in a democracy can believe in." Some of us see it, at most, as a side constraint that should rarely come into play even in a system of progressive taxation.

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Monday, March 16, 2009

Shortcomings of Madison's Federalist 10:

I am a big fan of James Madison's work, as I noted in my last post. He was probably America's greatest constitutional theorist, as well as an influential Founding Father. I am happy to celebrate his birthday here at the VC. I even have a portrait of Madison hanging in my home office, an "honor" I rarely bestow!

However, I have serious reservations about Madison's best-known essay, Federalist 10, which I think is overrated. In Federalist 10, Madison erred by ignoring the threat posed by minority interest groups and understating the dangers of political centralization.

I. Ignoring the Threat Posed by Minority "Factions."

One major flaw in Federalist 10 is Madison's claim that "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution." Madison believed that "tyranny of the majority" is a serious danger in a democracy, but rent-seeking by minority interest groups is not.

This is true in some cases. However, there are many ways minority factions can use the democratic process to benefit themselves at the expense of the majority. For example, the majority may simply be ignorant of the existence of policies that harm its interests in order to benefit a well-organized minority, a dynamic that may help explain the failure of many states to enact the strong protections for property rights against takings that are supported by the overwhelming majority of the public. Small interest groups might also be able to outmaneuver the general public because they are less subject to collective action costs and free-riding.

II. Understating the Dangers of Political Centralization.

The most famous argument in Federalist 10 is Madison's assertion that the national government is less dangerous than state governments because it is harder for a faction to capture it and use it for its own benefit at the expense of minorities or the general public:

[T]he greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other . . .

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it . . .

This is correct in so far as it goes. It probably really is easier for a faction to use a state government to "execute . . . plans of oppression" than the federal government. However, Madison ignores the fact that if the federal government does get captured by a faction, the consequences are a lot worse than with a state. An oppressive federal policy will likely affect far more people than an oppressive state policy. In addition, people living in a state with harmful policies can often "vote with their feet" and move to another state with relatively better ones. It is usually much more costly to leave the country completely - the only way to flee an oppressive federal policy. Madison may have been right to believe that state governments might become tools of factional oppression more easily than the federal government. But he ignored the fact that the consequences of federal oppression, when it does happen, are potentially much worse. This failure significantly weakens Madison's argument for concentrating more power in the federal government relative to the states.

In fairness, Madison's view was understandable in its historical context. When Madison wrote Federalist 10 in 1787, the feds had too little power to be a serious threat to anybody. Madison became more attuned to the dangers of federal power later in his career, when he helped lead the opposition to Alexander Hamilton's centralizing policies. Much less defensible than Madison's 1787 view is the use of Federalist 10-like arguments to justify the growth of federal power today.

Madison was a great writer and thinker. But, contrary to conventional wisdom, Federalist 10 was far from his best work.

UPDATE: As Tim Sandefur points out in the comments, Madison favored relatively strict limits on federal power, even in 1787. My point is not that Madison wanted unconstrained federal power, but that in Federalist 10 he ignored the specific danger from federal power discussed in this post.

UPDATE #2: Tim Sandefur criticizes this post here.

In response to my second point, he argues that "Madison could not possibly have imagined that Americans would so eagerly give up so much of their freedom to create the regulatory welfare state. He thought, and was correct, that America was far more prone to centrifugal forces." I agree that Madison could not and did not fully foresee these problems. That's why I said that his view was understandable in historical context. However, he could have foreseen that centralization would pose the risk I mention in the post (that if factional capture did occur at the federal level, it would be more dangerous than similar capture of a state). That point follows logically from the fact that a federal policy affects more people than a state law and is harder to escape. Both of these realities were possible to understand in 1787. And Madison possibly did have an intuitive grasp of them. But he failed to integrate them into the theory presented in Federalist 10.

Tim also responds to my first point as follows:

As far as your first critique, Madison does not rely entirely on the republican principle to counteract minority factions. He explains that one method of preventing this problem is an independent judiciary which will enforce the constitution against factions that capture legislatures. The problem, as he sees it (and as historically he naturally would see it) is that a "will independent of the people," while effective in preventing such faction problems, tends to become so independent that it then starts ruling in its own interest--and (in one of his subtler observations) that the federal judiciary is in fact a republican institution that is (indirectly) controlled by the majority, so that it cannot entirely prevent faction-capture problems. It is one method, but not perfect.

I think that Madison viewed these other mechanisms as tools for controlling majority tyranny and self-dealing by government officials. I'm not aware of any evidence that he believed they were necessary to control rent-seeking by minority "factions" outside the government: the issue discussed in this post.

Finally, Tim notes that "Madison rightly saw that there was no institution that would prevent the people from (in Oliver Wendell Holmes' timeless expression) choosing to go to hell." That's true, of course; there are no perfect safeguards against the abuse of power. But Madison failed to recognize - at least in Federalist 10 - that institutional safeguards against the two dangers discussed in this post are necessary to reduce the chance that we will end up in hell.

UPDATE #3: In the comments, I think one can detect a growing convergence between my position and Tim's. For example, Tim notes that Madison in 1787 demonstrated "shortsightedness [about] the dangers of the federal government," as evidenced by his early view that there was no need for a Bill of Rights to constrain abuses of federal power.

Related Posts (on one page):

  1. Shortcomings of Madison's Federalist 10:
  2. Happy Birthday James Madison:
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Peter Robinson Interviews Justice Scalia:

The Forbes.com article is here.

Looks like the video of the full interview will be running on NRO this week. The first installment is here.

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Virginia Tech's Students for Concealed Carry on Campus:

Last week, two student leaders of the Virginia Tech chapter of Students for Concealed Carry on Campus were interviewed in a podcast by the Independence Institute's Jon Caldara. It's an 18 minute podcast, and very powerful, not only in the personal stories that are told, but in the calm logic of the SCCC presentation.

Here at the Independence Institute, we have started a weekly series of podcasts on Second Amendment issues. Some recent topics have been: international data showing the countries with most guns tend to have the most civil, political, and economic freedom; my law review article in progress on campus carry reform; the call to ban "assault weapons" because of problems in Mexico; Education Secretary Arne Duncan; and the Independence Institute's empirical brief in the Chicago handgun ban appeal. The archive of all our iVoices.org podcasts on Second Amendment issues is here.

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Happy Birthday James Madison:

Tim Sandefur points out that today is James Madison's birthday, and links to some of Madison's most important works. As a Property professor, I agree with Tim that Madison's "Property" is among his best writings. But my favorite little-known Madison quote is his warning in Federalist 62 that big government undermines democratic control over public policy by making it impossible for citizens to acquire the knowledge they need to monitor what government is doing:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

This is a point that I have focused on in much of my own work on political ignorance (e.g. - here and here). Madison, however, at least partially foresaw that this danger might arise over 200 years ago, when the functions of government were incomparably narrower and simpler than they are today.

UPDATE: When I first wrote this post, I hadn't noticed that co-blogger Randy Barnett had put up his own post on this subject just a few minutes before. Sorry for any confusion.

Related Posts (on one page):

  1. Shortcomings of Madison's Federalist 10:
  2. Happy Birthday James Madison:
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Happy Birthday, James Madison Tim Sandefur reminds me that today is the birthday of James Madison to whom I dedicated Restoring the Lost Constitution (along with Lysander Spooner). He offers his own tribute here.

Noncitizens Completely Barred from Owning Defensive Weapons, Including Pepper Spray, in Massachusetts:

Massachusetts bars the possession of firearms or "ammunition," which includes pepper sprays, unless one has a firearms identification card -- and it bars aliens from getting firearms identification cards. Mass. Gen. Laws. ch. 140 §§ 121, 129B, 129C. And Massachusetts completely outlaws stun guns for civilians. Mass. Gen. Laws. ch. 140 § 131J. The one possibly relevant exception (I set aside an exception for target-shooting competitions) is that "The colonel of the state police may, after an investigation, issue a permit to an alien to own or have in his possession or under his control a rifle or shotgun; subject to such terms and conditions as said colonel may deem proper." But that's entirely within the colonel's discretion, and is limited to devices that are both deadly (pepper spray is excluded) and can't be easily carried in public. Please let me know if I'm misreading these provisions.

Yet the Massachusetts Constitution says, "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties." Many states with nearly identical provisions have interpreted them as securing a constitutional right to self-defense and defend property (subject to traditional limits barring the use of excessive force, such as deadly force in response to not very grave threats). The matter has never been litigated in Massachusetts, but the text seems quite explicit, and the precedents from other states on point. But despite this Massachusetts law seems to take the view that non-citizen people can be limited to defending their lives with their hands, or maybe other items that come to hand but that aren't optimized for use as actual life-defending weapons.

Kind of like telling people that they have a right to prevent conception, but only using the rhythm method plus maybe Saran wrap. Except of course that the right to defend life is expressly mentioned in the Massachusetts Constitution, so that there should be no controversy about whether such rights should be protected as unenumerated rights (which has been the case as to contraceptives).

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Guess the Author of the 114-page article analyzing the works of Alan Dershowitz published in the Albany Law Review last year, entitled Visibility, Accountability and Discourse As Essential to Democracy: The Underlying Theme of Alan Dershowitz's Writing and Teaching.



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Advice for Bloggers Promoting Their Work to Other Bloggers:

I thought now was a good time to repost my old post on the subject, especially since I suspect that many other bloggers have similar preferences to these. I also add a new item (#3):

We sometimes get e-mail from people asking us to link to their blogs, or their posts.

We actually very rarely add new blogs to the blogroll, which is already pretty long; perhaps this is a mistake, but that's our tentative approach to this. But we're always happy to consider linking to interesting posts on other people's blogs. Three brief reminders about what tends to make this process easier for us (reminders to which I'll link from a permanent "Linking policy" link that I'll be adding to the front page):

1. Pitch the post, not the blog. If you have a post that you think we and our readers will find especially interesting, let us know about that -- such custom-selected posts are generally more tempting than just a suggestion to read whatever happens to be on the front page of some blog.

2. Include both (a) the text of the post and (b) the URL of that particular post as part of the text of the e-mail. When we're working remotely, often on slowish connections, this makes it much easier for us to read the post -- and thus much more likely that we will read it and consider linking to it.

3. Target the right Conspirator. Send the post to the particular blogger who you think will find it most interesting, not just to me. You might think that I'd forward the post to whoever I think will find it potentially appealing; but I'm often reluctant to do that, since I don't want my cobloggers to feel pressured by me to blog about matters. (Not that they should feel pressured even if I do post something, but there's always the risk of some slight tendency in that direction whenever a friend and coauthor passes something along.) So target the right person on the blog.

As I mentioned, I suspect many other bloggers have the same views, though I can't be sure about that.

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Highest and Lowest Starting Ages for Unsupervised Driving in the U.S.:

Which states have the highest and lowest starting ages for unsupervised driving, though perhaps with limits on time and number of passengers? (My source is the Insurance Institute for Highway Safety.)

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Only 80s Music Video Shot in a Law Library, at least that I know of: Toto's Africa. Oh, sure, the guy pretends that he's looking for some sort of map or picture of an African statue, all Indiana-Jones-like. But those are law books on the shelves.

I've long wondered what it means to "bless the rains," but at least according to this site, even the members of Toto thought the lyrics didn't make any sense.

  (Incidentally, neither the Volokh Conspiracy collectively or any of the bloggers individually are in any way liable or responsible if you can't get this song out of your head the next time you're in a law library. Nor are we responsible for the content of the video. View at your own risk.)
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Incentivize, Jeopardize, Tyrannize, and Other -Izes:

A very interesting post on reactions to -ize coinages over the centuries, by linguistics professor Mark Liberman (Language Log).

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Legal Times, 1978-2009: The Legal Times, the terrific newspaper/magazine focused on the DC legal scene, has announced that it is merging with the National Law Journal. The BLT has the story. It looks like the content of the two publications will largely merge, although sadly it means that there will no longer be a paper just focused on DC legal news anymore. Also, no word yet on what will happen to the relatively new but nonetheless must-read Legal Times blog. Perhaps it will just become the BNLJ, but that's not nearly as clever.
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Native Americans and Property Rights:

Economist Terry Anderson, an expert on Native American issues, has an interesting op ed pointing out that the dire poverty of many Indian tribes could be partly alleviated by strengthening protection for private property rights:

Two vital steps in this direction are to strengthen property rights and the rule of law on reservations. Virtually every study of international development shows that both of these are crucial to prosperity. Indian country is no different. The effect of insecure property rights is evident on a drive through any western reservation. When you see 160 acres overgrazed and a house unfit for occupancy, you can be sure the title to the land is held by the federal government bureaucracy. In contrast, when you see irrigated land in cultivation with farm implements, a barn and well-kept house, you can be sure the land is held in fee simple, whether by an Indian or non-Indian.

Land tenure in Indian country is complicated thanks to laws, dating back to the 19th century, which put millions of acres of tribal and individual Indian land under the trusteeship of the Interior department's Bureau of Indian Affairs. These lands cannot be sold, used as collateral, easily inherited, or managed productively. Instead of giving Indians more federal welfare, Mr. Obama has the opportunity to increase their autonomy. It is, after all, their land. Let them manage it, borrow against it, and make it productive.

Like many property teachers, I sometimes encounter the persistent myth that Native Americans don't believe in private property, had no concept of property rights before Europeans arrived, and so on. But, as Anderson explained in this 1997 article, many Indian tribes used property rights for a wide range of purposes long before whites arrived. Ironically, the myth of Native American hostility to property rights was first developed by 18th and 19th century whites as a justification for dispossessing Indians of their land on the grounds that they didn't really own it. In the 20th century, the myth was taken up by some left-wing environmentalists and others in order to show that Native Americans had a supposedly superior collectivist ethic that whites should emulate.

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1776: The Musical: Today is the 40th anniversary of the Broadway opening of “1776.” Reading this post on Big Hollywood and watching the video clips there made me realize that I never watched the film in its entirety. I knew I not seen the stage play, but I sort of assumed I had seen the film at one time or another. Apparently, what memory I have of the musical must have come from highlights I saw in compilations. I hope to rectify this soon. Here is how the review begins:
“1776″ uses the character of John Adams as the main protagonist in telling the story of his legendary fight to convince the continental congress to adopt a resolution calling for independence from King George. The show follows the journey of Adams’ victories in convincing congress to form a committee to draft the Declaration of Independence, the ensuing debate over the contents of the declaration, the conflict between the Northern states and the Southern states over slavery and finally, the climactic scene depicting the signing of the declaration.

The brilliance of the drama in this show is not “will they do it?” since everyone in the audience knows they will… the drama lies in “how are they gonna pull this off?” The show uses a simple but very theatrical and dramatic device by showing a giant day calendar on the wall above John Hancock’s desk. Each new scene shows the calendar page ripped away revealing what day we are witnessing. Everyone with at least a 1st Grade education knows that we are all counting down to July 4th and the tension genuinely builds as we see the day coming closer and yet it doesn’t seem like Adams and his coalition will get all of the states to favor a declaration in time.

“1776″ is unique in many ways. Most striking is the fact that the stage is populated by many, many men and there are only two women in the show: Abigail Adams and Martha Jefferson. And Abigail only appears through her letters with John–she does not actually interact with the rest of the cast. Martha only appears for one scene, a somewhat apocryphal moment when Franklin and Adams send for her to provide Jefferson a much needed conjugal visit so he can re-focus on the writing of the declaration.

So, other than that, it’s a 2 1/2 hour long musical with a bunch of wig-wearing guys sitting around debating in 18th century aristocratic costumes. No chorus, no dancers, no special effects, no leggy dancers… not really the recipe for musical theatre success.

Because the film was such a faithful replica of the stage production including using most of the same principal actors, clips from the film should provide you with a great taste of what it was like to witness this show live at the 46th Street Theatre (now the Richard Rodgers) 40 years ago. Here is the great opening number, “Sit Down John!”:


Given what I now know about constitutional history, that there would be a whole number about Richard Henry Lee is quite remarkable.
History tells us that one of the strategies Benjamin Franklin and John Adams used to move the Declaration of Independence along was to get Richard Henry Lee to make the motion in congress. He was so respected and carried so much weight that he would be accepted as the sponsor of the resolution (where as Adams was hated by all). It was up to Lee to ride to Virginia to get the approval of the House of Burgesses to make the motion. Here’s how “1776″ portrays the man and the moment:


Lots more commentary and clips are at Big Hollywood.

Update: Here's a link to the "Director's Cut" of 1776:


"Cash-Strapped Ohio City Court Will Accept New Case Filings Only If You Supply Own Paper,"

reports the AP. Sounds like a bureaucratic battle that went a little too far. Thanks to James Gibson for the pointer.

UPDATE: Commenter wfjag points out that this adds a new meaning to the phrase in forma pauperis.

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Congratulations to Our Own Orin Kerr,

on being elected a member of the American Law Institute, the source of the Restatements of the Law, the UCC, and many other important legal projects. Our coblogger David Hyman is also a member.

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IHS Summer Seminars: Keri Anderson, Student Coordinator for the Institute for Humane Studies, passes along information about IHS Summer Seminars. I highly recommend them.
Many students want to add an intellectual component to their summer without a large time commitment or want to enhance their internships with additional career advice and networking. The free, weeklong summer seminars hosted by the Institute for Humane Studies offer the opportunity to engage in thoughtful conversations this summer and explore current issues from many perspectives. There are several seminars that I want to highlight.

Students may be interested in our Liberty & Current Issues seminar held at Trinity University in Washington, DC, July 18-24 where they will learn about the politics that shape policy. Topics covered include economic policy, small business regulation, campaign finance reform, and individual rights. This seminar is ideal for students considering careers in public policy.

Students may be particularly interested in our Exploring Liberty seminar which focuses on the historical, economic, and philosophical foundations of a free society.

Of particular interest to graduate students is the interdisciplinary Social Change Workshop held at Brown University from June 13-19. The theme of this year's workshop is Institutions, Behavior, and Development. Throughout the week the workshop will be asking both descriptive and normative questions about the relationship between knowledge, decision-making, and social, political, and economic institutions.

Participation in the workshop and seminars, including housing and meals for the weekend seminars, is free. Details about the dates and locations of all 12 seminars are available at www.TheIHS.org/seminar. The deadline to apply is March 31.
Also, while I cannot vouch for the seminar personally, the Clemson Institute for the Study of Capitalism announced that the theme of its 2009 Student Summer Conference is "Ayn Rand's Atlas Shrugged and the Moral Foundations of Capitalism."

Debate on Federalism & Preemption:

If you are in the vicinity of George Mason Law School this evening, you are invited to a public program at the law school (the organizers asked me to post this):

Perspectives on Preemption: Federalism and the State AGs ___________________

MONDAY, MARCH 16 George Mason University School of Law 3301 N. Fairfax Drive, Arlington, VA 22201 Hazel Hall 225 5:00pm – 6:00pm Reception to follow in the Dean’s Suite (RM. 215)

The extent to which state laws are or should be preempted by federal rules is the subject of great debate among legal scholars across the country. The issue of preemption is particularly salient for the 56 Attorneys General of the States, U.S. Territories/Commonwealths, and the District of Columbia, given their role as “the people’s attorney.” Is there virtue in the uniform application of federal rules designed by experts, as opposed to a patchwork of state standards? Or are State AGs and courts the best situated to protect the American public? Please join us for a moderated discussion on this important and timely legal matter.

FEATURING:

Hon. Hal Stratton Adjunct Professor, GMUSL Former Attorney General for the State of New Mexico and former Chairman of the Consumer Product Safety Commission (CPSC)

Michael Greve John G. Searle Scholar and Director of the Federalism Project at the American Enterprise Institute (AEI) Co-editor and Contributor of Federal Preemption: States’ Powers, National Interests

Doug Kendall Founder and President, Constitutional Accountability Center (CAC) Editor and Co-author of Redefining Federalism: Listening to the States in Shaping our Federalism Legal commentator and blogger for The Huffington Post

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Why Conservatives Can't Win With Minorities:

A provocative column by Shelby Steele. Here's a taste, but read the whole thing:

When redemption became a term of power, "redemptive liberalism" was born -- a new activist liberalism that gave itself a "redemptive" profile by focusing on social engineering rather than liberalism's classic focus on individual freedom. In the '60s there was no time to allow individual freedom to render up the social good. Redemptive liberalism would proactively engineer the good. Name a good like "integration," and then engineer it into being through a draconian regimen of school busing. If the busing did profound damage to public education in America, it gave liberals the right to say, "At least we did something!" In other words, we are activists against America's old sin of segregation. Activism is moral authority in redemptive liberalism....

And here is conservatism's great problem with minorities. In an era when even failed moral activism is redemptive -- and thus a source of moral authority and power -- conservatism stands flat-footed with only discipline to offer. It has only an invisible hand to compete with the activism of the left. So conservatism has no way to show itself redeemed of America's bigoted past, no way like the Great Society to engineer a grand display of its innocence, and no way to show deference to minorities for the oppression they endured. Thus it seems to be in league with that oppression.


Sunday, March 15, 2009

Speculation on Justices Ginsburg or Souter resigning.

Via Breitbart comes speculation on Justices Ginsburg, Souter, or Stevens resigning soon. Justice Ginsburg's remarks at a Boston speech on Friday sparked the most recent discussions.

Justice Ruth Bader Ginsburg has hinted at a possible vacancy "soon" at the US Supreme Court, without indicating who would be leaving.

Speaking Friday at New England Law Boston's annual "Law Day," Ginsburg told students that the nine justices only take pictures together when a new member joins the high court.

"We haven't had any photos for some time, but surely we will soon," she said.

"The dynamic is a little different when someone leaves."

Ginsburg, who turns 76 on Sunday, declined to elaborate on her comments and did not take questions from reporters at the event.

She underwent surgery for pancreatic cancer in early February but has returned to the bench.

Despite speculation that she might leave the court, Ginsburg has on several occasions expressed her intention to remain on the court for several more years. . . .

[S]he is one of five justices who are over 70 years old. Justice John Paul Stevens, the most liberal of the justices, is the oldest at 88. He turns 89 next month.

Stevens, Ginsburg or fellow liberal justice David Souter, 69, have been expected possibly to retire soon . . . .

Although Stevens has reportedly hired law clerks for the next term that begins in October, Souter has not.

As for Justice Souter resigning, the revelation — if it's even true — that Souter has not hired clerks for next fall would seem to be strong evidence that he has either decided to retire this summer or is at least strongly considering resignation. [UPDATE: Apparently, Justice Souter usually hires late, between February and April, so there probably is nothing oput of the ordinary here.]/p>

As for Justice Ginsburg, who has had serious health problems in recent years, my personal opinion is that there is a reasonable chance that she will leave the court over the next 18 months.

As for Justice Stevens resigning, my question is: Why? Stevens, apparently in good health and fully engaged in a job he seems to enjoy, has no obvious reason to decide to leave. I would be very surprised if Stevens retired anytime soon.

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Is the Stimulus Bill Constitutional?

This week, Governor Mark Sanford announced that South Carolina will reject a large chunk of the stimulus funds targeted for his state. The state legislature may disagree. If so, this could set up a confrontation over the constitutionality of the stimulus, specifically the provision that purports to enable state legislatures to bypass Governors and accept funds on behalf of their state. Professor Ron Rotunda doubts this provision is constitutional. He writes:

If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution? . . .

The two main sources of power that might justify subsection (b) are Congress' power over interstate commerce and its power to tax and spend. The commerce power does not support this law. The commerce power is very broad indeed, but there are limits. One important one is that Congress can only use the commerce power to subject the states to "generally applicable" law. For example, if Congress sets the minimum wage at $7 an hour for all workers in interstate commerce, that law can include state workers in interstate commerce. But subsection (b) is not "generally applicable." By its very nature it only governs states.

The second main source of federal power is the spending power, allowing Congress to bribe the states to take certain actions. . . .

The spending clause does not work here. Congress is not telling a state, "You must change your state constitution before we will give you a dime." Instead, Congress is simply telling the state, "We have changed your state constitution so that we give more power to the state legislature, without any pesky interference from the governor."

Rotunda doubts the bypass provisions could survive court challenge. He also notes such a suit could raise interesting severability issues, potentially invalidating other aspects of the stimulus. Stay tuned.

UPDATE: See also this post by Jack Balkin.

Related Posts (on one page):

  1. Is the Stimulus Bill Constitutional?
  2. The Stimulus and the Spending Clause:
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Peggy Noonan as Roger Rosenblatt: Tom Smith nicely captures my gut reaction to Peggy Noonan's essays in the Wall Street Journal and rekindles painful memories of NPR's Roger Rosenblatt.
I finally realized who it is that Peggy Noonan reminds me of and why I wish she would just stop. It's Roger Rosenblatt. You don't see him around much these days (is he still alive?). But in the '80's he was much in evidence, blathering in his deeply pretentious yet relentlessly middle-brow way about the most topical of the topical. God he was painful to listen to. Nobody achieved a higher ratio of sheer opininated gas to actual content, the actual content being some thoroughly distilled bromide of public television contributor class. You'd need an astrophysicist to explain the profound vacuities he was able to achieve. Anyway, Peggy Noonan has something of the unmourned Rosenblatt in her, only instead of pieties of the leftish New England middle-brow liberal arts major class of '65, we get the pieties of the (very) soft traditionalist Right.
The rest of his evidence of "The Roger Rosenblatt of the Right" is here.

Osama bin Elvis: Angelo M. Codevilla, a professor of international relations at Boston University, has a fascinating analysis of the "war on terror" that challenges the conventional wisdom of conservatives, progressives, and libertarians alike. In fact, his essay Osama bin Elvis challenges so much conventional wisdom that it makes your head spin. Yet it is curiously plausible and even sensible. This is definitely a "read the whole thing" piece, but here are some excerpts to whet your appetite:

On Osama bin Laden being an ex-existing terrorist
Negative evidence alone compels the conclusion that Osama is long since dead. Since October 2001, when Al Jazeera's Tayseer Alouni interviewed him, no reputable person reports having seen him—not even after multiple-blind journeys through intermediaries. The audio and video tapes alleged to be Osama's never convinced impartial observers. The guy just does not look like Osama. Some videos show him with a Semitic aquiline nose, while others show him with a shorter, broader one. Next to that, differences between colors and styles of beard are small stuff.

Nor does the tapes' Osama sound like Osama. In 2007 Switzerland's Dalle Molle Institute for Artificial Intelligence, which does computer voice recognition for bank security, compared the voices on 15 undisputed recordings of Osama with the voices on 15 subsequent ones attributed to Osama, to which they added two by native Arab speakers who had trained to imitate him and were reading his writings. All of the purported Osama recordings (with one falling into a gray area) differed clearly from one another as well as from the genuine ones. By contrast, the CIA found all the recordings authentic. It is hard to imagine what methodology might support this conclusion. [snip]

We do not know what happened to Osama. But whatever happened, the original one, the guy who looked and sounded like a spoiled Saudi kid turned ideologue, is no more. The one who exists in the tapes is different: he is the world's terror master, endowed with inexplicable influence. In short, whoever is making the post-November 2001 Osama tapes is pretending to far greater power than Osama ever claimed, much less exercised.
On why the real Osama was not all he was cracked up to be:
There is a good reason why neither Osama nor al Qaeda appeared on U.S. intelligence screens until 1998. They had done nothing noteworthy. Since the 1998 bombings of U.S. embassies in Africa, however, and especially after director of Central Intelligence George Tenet imputed responsibility for 9/11 to Osama "game, set, and match," the CIA described him as terrorism's prime mover. It refused to countenance the possibility that Osama's associates might have been using him and his organization as a flag of convenience. As U.S. forces were taking over Afghanistan in 2001, the CIA was telling Time and Newsweek that it expected to find the high-tech headquarters from which Osama controlled terrorist activities in 50 countries. None existed. In November 2008, without factual basis and contrary to reason, the CIA continued to describe him and his organization as "the most clear and present danger to the United States." It did not try to explain how this could be while, it said, Osama is "largely isolated from the day to day operations of the organization he nominally heads." What organization?
On why the CIA focused so heavily on the largely irrelevant Osama:
But why such gymnastics in the face of Osama's incontrovertible irrelevance? Because focusing on Osama and al Qaeda affirms a CIA axiom dating from the Cold War, an axiom challenged during the Reagan years but that has been U.S. policy since 1993, namely: terrorism is the work of "rogue individuals and groups" that operate despite state authority. According to this axiom, the likes of Osama run rings around the intelligence services of Arab states—just like the Cold War terrorists who came through Eastern Europe to bomb in Germany and Italy and to shoot Pope John Paul II supposedly acted despite Bulgarian intelligence, despite East Germany's Stasi, despite the KGB. This axiom is dear to many in the U.S. government because it leads logically to working with the countries whence terrorists come rather than to treating them as enemies.

But what if terrorism were (as Thomas Friedman put it) "what states want to happen or let happen"? What if, in the real world, infiltrators from intelligence services—the professionals—use the amateur terrorists rather than the other way around? What is the logical consequence of noting the fact that the terrorist groups that make a difference on planet Earth—such as Hamas and Hezbollah, the PLO, Colombia's FARC—are extensions of, respectively, Iran, Saudi Arabia and Egypt, and Venezuela? It is the negation of the U.S. government's favorite axiom. It means that when George W. Bush spoke, and when Barack Obama speaks, of America being "at war" against "extremism" or "extremists" they are either being stupid or acting stupid to avoid dealing with the nasty fact that many governments wage indirect warfare.
On who were really the perpetrators of 9/11 etc:
Questioning Osama's relevance to today's terrorism leads naturally to asking how relevant he ever was, and who might be more relevant. That in turn quickly shows how flimsy are the factual foundations on which rest the U.S. government's axioms about the "war on terror." Consider: We know that Khalid Sheikh Mohammed (KSM) planned and carried out 9/11. But there is no independent support for KSM's claim that he acted at Osama's direction and under his supervision. On the contrary, we know for sure that the expertise and the financing for 9/11 came from KSM's own group (the U.S. government has accepted but to my knowledge not verified that the group's core is a biological family of Baluchs). This group carried out the 1998 bombings of U.S. embassies in Africa and every other act for which al Qaeda became known. The KSM group included the perpetrators of the 1993 World Trade Center bombings Abdul Rahman Yasin, who came from, returned to, and vanished in Iraq, as well as Ramzi Yousef, the mastermind of that bombing, who came to the U.S. from Iraq on an Iraqi passport and was known to his New York collaborators as "Rashid the Iraqi." This group had planned the bombing of U.S. airliners over the Pacific in 1995. The core members are non-Arabs. They had no history of religiosity (and the religiosity they now display is unconvincing). They were not creatures of Osama. Only in 1996 did the group come to Osama's no-account band, and make it count.

In life, as in math, you must judge the function of a factor in any equation by factoring it out and seeing if the equation still works. Factor out Osama. Chances are, 9/11 still happens. Factor out al Qaeda too. Maybe 9/11 still happens. The other bombing plots sure happened without it. But if you factor out the KSM group, surely there is no 9/11, and without the KSM group, there is no way al Qaeda would have become a household word.
Why focusing on Osama is dangerous:
Focusing on Osama bin Elvis is dangerous to America's security precisely because it continues to substitute in our collective mind the soft myth that terrorism is the work of romantic rogues for the hard reality that it can happen only because certain states want it to happen or let it happen. KSM and company may not have started their careers as agents of Iraqi intelligence, or they may have quit the Iraqis and worked for others, or maybe they just worked for themselves. But surely they were a body unto themselves. As such they fit Osama's description of those responsible for 9/11 as "individuals with their own motivation" far better than they fit the CIA's description of them as Osama's tools.

More important, focusing on Osama and al Qaeda distorts our understanding of what is happening in Afghanistan. The latter-day Taliban are fielding forces better paid and armed than any in the region except America's. Does anyone suggest seriously that Osama or al-Zawahiri are providing the equipment, the money, or the moral incentives? Such amounts of money can come only from the super wealthy of Saudi Arabia and the Gulf. The equipment can come only through dealers who work at the sufferance of states, and can reach the front only through Pakistan by leave of Pakistani authorities. Moreover, the moral incentives for large-scale fighting in Pushtunistan can come only as part of the politics of Pushtun identity. Hence sending troops to Afghanistan to fight Pushtuns financed by Saudis, supported by Pakistanis, and disposing of equipment purchased throughout the world, with the objective of "building an Afghan nation" capable of preventing Osama and al Qaeda from messing up the world from their mountain caves, is an errand built on intellectual self-indulgence.
On the competence of the CIA and the role it performs:
The CIA had as much basis for deeming Osama the world's terror master "game, set, and match" in 2001 as it had in 2003 for verifying as a "slam dunk" the presence of weapons of mass destruction in Iraq, and as it had in 2007 for determining that Iran had stopped its nuclear weapons program. Mutatis mutandis, it was on such bases that the CIA determined in 1962 that the Soviets would not put missiles in Cuba; that the CIA was certain from 1963 to 1978 that the USSR would not build the first strike missile force that it was building before its very eyes; that the CIA convinced Bush 41 that the Soviet Union was not falling apart and that he should help hold it together; that the CIA assured the U.S. government in 1990 that Iraq would not invade Kuwait, and in 1996 that neither India nor Pakistan would test nuclear weapons. In these and countless other instances, the CIA has provided the US government and the media with authoritative bases for denying realities over which America was tripping.

The force of the CIA's judgments, its authority, has always come from the congruence between its prejudices and those of America's ruling class. When you tell people what they want to hear, you don't have to be too careful about premises, facts, and conclusions.
Interesting indeed.

Sunday Song Lyric: While procrastinating on a symposium paper on standing in the Roberts Court, I surfed through song lyrics with "stand" or "standing" in the title, and quickly turned up a gem from 1981: "Stand and Deliver" by Adam and the Ants. Though not at all relevant to my paper, this song is a "new romantic" classic. A "stylist's manifesto" that topped the UK charts and helped the band secure a Grammy nomination. Here's a taste:

We're the dandy highwaymen so tired of excuses
Of deep meaning philosophies where only showbiz loses
We're the dandy highwaymen and here's our invitation
Throw your safety overboard and join our insect nation

Stand and deliver,
Your money or your life
Try and use a mirror,
No bullet or a knife

Even though you fool your soul
Your conscience will be mine, all mine.
Alas, Adam soon tired of his bandmates and went solo, perhaps eliminating a two-drummer trend before it even started. Here are the full lyrics, video (opening with Adam's trademark makeup application), and a live performance.
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