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Saturday, April 11, 2009

More on Pope Benedict and Condoms:

A few weeks back I posted on what I perceived to be an incorrect suggestion in a Washington Post editorial on the position of Pope Benedict with respect to condom use in Africa and his contention "You can't resolve [the AIDS epidemic] with the distribution of condoms. On the contrary, it increases the problem." At the time, I said that surely the Pope's claim was that condoms lead to an increased frequency of sex and that increased sex led to an increase in AIDs. So the claim was a hypothesis subject to testing: does the increased-sex effect of condom use outweigh the safety benefits of using condoms.

Michael Webb of Balliol College has now followed up and done an extensive set of interviews with experts in public health to test Pope Benedict's assertion and they are posted on a website called The Alligator.

Webb describes the controversy that the Pope's statement provoked:

Delivered to a continent where 22 million people live with HIV, and which accounted for 75% of all AIDS deaths in 2007, his words provoked strong reactions. Journalists, politicians and AIDS activists from around the world lined up to criticise the Pope’s views: “The Pope deserves no credence” said the New York Times in an editorial; “Impeach the Pope” urged a guest writer in the Washington Post. The British medical journal the Lancet accused him of having “publicly distorted scientific evidence to promote Catholic doctrine”, Former French Prime Minister Alain Juppe suggested that he was “living in a situation of total autism”, while Rebecca Hodes of the Treatment Action Campaign in South Africa described his remarks as “alienating”, “ignorant” and “pernicious”.

The row goes beyond previous disagreements because the Pope appeared to stray from morals, on which he has some claim to authority, into science, on which he does not. His comment was a “testable proposition”, noted The Times in its leader, with “immense implications for human health and welfare.” The article concluded by arguing that “the Vatican must amend its position on Aids.” The specific scientific claim aside, the problem is that it is apparently impossible for the Vatican to do this.

Webb reviews the literature and seems to conclude that based on what we know today the overall effect is inconclusive whether the Pope's claim is correct. Here's one comment that supports the Pope:

Mr Doerflinger explains the science behind their claims: “There's plenty of data. Condom distribution as a solution to generalised AIDS epidemics is often very disappointing in its results, and there's some data that it makes things worse. [There’s] the whole concept of risk compensation, that people engage in more risky behaviour because they have a false sense of security from the condoms. So I thought his comments were perfectly sensible to anyone who knows the literature.” Green and not heard

This literature to which he refers does exist, though it is not mainstream. Its principal proponent has been Dr Edward Green, Director of the AIDS Prevention Research Project at Harvard. “The best evidence we have”, he says, “supports the Pope’s comments. There is a consistent association shown by our best studies between greater availability and use of condoms and higher (not lower) HIV infection rates.” He told me:

In epidemics that are population wide, where most HIV is found in the general population, for whatever reason we can't get people to use condoms consistently, and when they use them at all, that seems to have the effect of disinhibiting people's behaviours so they end up taking greater sexual risks and cancelling whatever risk reduction they have gotten from the technology they're using.

Others disagree.

The article is really terrific for those wanting to know more about this.

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Has Obama Backed Off Climate Goals?

Is the Obama Administration setting aside its ambitious greenhouse gas emission reduction goals due to political realities? Yes and no, the NYT explains.

Has the administration scaled back its global-warming goals, at least for this year, or is it engaged in sophisticated misdirection?

Maybe some of both. While addressing climate change appears to be slipping down the president’s list of priorities for the year, he is holding in reserve a powerful club to regulate carbon dioxide emissions through executive authority.

That club takes the form of Environmental Protection Agency regulation of the gases blamed for the warming of the planet, an authority granted the agency by the Supreme Court’s reading of the Clean Air Act. Administration officials consistently say they would much prefer that Congress write new legislation to pre-empt the E.P.A. regulatory power, but they are clearly holding it in reserve as a prod to reluctant lawmakers and recalcitrant industries and as evidence of good faith to other nations.

While Congress seems to have little appetite for an ambitious cap-and-trade plan at the moment, I suspect many will change their minds when confronted with the alternative of regulating greenhouse gases under the Clean Air Act. I'd like to think that pushing off the climate policy decision could cause some to reconsider use of a revenue-neutral carbon tax, as it's the best option on the table, but I am not optimistic.

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Is Wisconsin Diploma Privilege in Danger?

Apparently some of the judges on the U.S. Court of Appeals for the Seventh Circuit are skeptical of the state's defense. [LvAlthouse]

Related Posts (on one page):

  1. Wisconsin Diploma Privilege in Danger:
  2. Is Wisconsin Diploma Privilege in Danger?
39 Comments

Friday, April 10, 2009

Is Free-Range Better (For You or the Pig)?

Free-range pork may not be all it's cracked up to be.

IS free-range pork better and safer to eat than conventional pork? Many consumers think so. The well-publicized horrors of intensive pig farming have fostered the widespread assumption that, as one purveyor of free-range meats put it, “the health benefits are indisputable.” However, as yet another reminder that culinary wisdom is never conventional, scientists have found that free-range pork can be more likely than caged pork to carry dangerous bacteria and parasites. It’s not only pistachios and 50-pound tubs of peanut paste that have been infected with salmonella but also 500-pound pigs allowed to root and to roam pastures happily before butting heads with a bolt gun.

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The Rescue Shelter Boys:

It seems that PETA objects to the name "Pet Shop Boys," and sought (unsuccessfully) to convince them to change their name.


The three cases that could determine Second Amendment incorporation:

In this week's Second Amendment podcast on iVoices.org, Jon Caldara and I discuss three different cases which could give the Supreme Court an opportunity to decide whether the Second Amendment is incorporated in the Fourteenth: the Chicago handgun ban; the Alameda County, California, gun show ban on county property; and the New York nunchaku ban. The MP3 is ll minutes.

Last week's podcast discussed the New York Times article which claimed that Heller is "firing blanks." The week before, Caldara was guest-hosting an afternoon radio show, and we talked about whether Colorado should follow the policy of some other states, whereby people with concealed carry permits (which require a fingerprint-based background check) should be required to go through the instant check (a name-based computer check) when buying an additional gun.

In case you missed them the first time, here the two most popular podcasts we've ever done on iVoices. Both of them are still getting hundreds of listens per week: How to Interpret the Constitution. I interview University of Montana Law Professor Rob Natelson. We discuss originalism, and Natelson's recent articles. Nov. 24, 2008. 31 minutes.

Interview with Richard Pearson, Executive Director of the Illinois State Rifle Association. Oct. 14, 2008. Pearson has been lobbying on sporting and right to arms issues at the Illinois legislature since 1989. He has more first-hand knowledge of Obama's record on these issues than anyone except Obama himself. In the 20-minutes podcast interview, Pearson suggests that Obama's claim about his supposed record of support for sportsmen is extremely inaccurate.

148 Comments

What Moneyball Missed:

Adam Fleisher says it was the impact of the reserve clause, which ties young players to their teams at below-market salary structures. More at the Sports Economist.

I think that Fleisher's argument can, to some extent, be reconciled within Moneyball itself. As I read it, he seems to suggest that the marginal value of moneyball simply may be higher when it comes to picking amateur players at the beginning of their careers, rather than free agent professionals. This is a point that Lewis stresses though--that the A's also developed better mechanisms for evaluating amateur players, such as taking college players. Note too that drafting college players reinforces Fleisher's argument: because college players are older and more mature, they are likely to have a greater number of productive years under the reserve clause umbrella than younger players.

Regardless, it is an interesting gloss on Moneyball.

21 Comments

The University of the Totally Disarmed:

Many universities ban firearms, but some research I've been doing reveals that some universities ban firearms and stun guns and chemical defensive sprays, either in dorm rooms or in the university as a whole. This basically leaves students entirely without any defensive weapons, and also has the effect of disarming dorm residents when they go off campus property, since they have no place to store the defensive weapons when they're back on campus.

This strikes me as quite shocking, especially with regard to women students who are in the age range where the danger of rape is at its highest. The university basically leaves them as sitting ducks, unless they're willing to violate the university policy. Even if the university tries to compensate by offering a good deal of on-campus policing (some do and some don't), it surely can't protect the students when they leave campus.

Some of the universities I've found that do this are Cornell, Duke, NYU, Hofstra, University of Massachusetts-Dartmouth (though perhaps only limited to "carrying" rather than possessing in a dorm room), Bridgewater State College (likewise possibly limited to "carrying"), and University of Maryland-University College, but there are many more. Here is the explanation from Cornell for its ban (Cornell confirms that the policy remains in place today):

[P]epper spray still falls within Campus Code of Conduct language which makes it a violation to "possess, carry, or use firearms, ... ammunition, explosives, or other dangerous weapons, instruments, or substances in or upon University premises." Even though a person might possess a permit to carry a gun in the city of Ithaca, that person is not permitted to carry the gun at Cornell. Similarly, even though New York state law permits the carrying of pepper spray within the state in general, carrying this substance is not permitted on the Cornell campus.

Some people in the community may feel that this reading of the Campus Code of Conduct denies them a legitimate means of protection. While pepper spray can provide a means of protection, certain other facts indicate its limitations. Those facts include:

  • Pepper spray canisters are unreliable in cold weather.

  • If sprayed into the wind, the effects intended for the assailant can instead affect the victim, rendering the victim even more helpless than she or he was originally.

  • Pepper spray may be lethal to those with asthma or other respiratory problems.

  • Use of pepper spray for any purpose other than self-defense (for example, as a prank) — or use of the spray against a police officer — constitutes a criminal offense. Even lawful use of pepper spray may result in legal action against the user if a medical emergency results.

One of the biggest concerns is that people will place unjustified reliance on pepper spray and will forget other safety precautions that may provide even greater security. Those precautions include:

  • Walk in well-lit areas with a friend.

  • Keep car keys accessible at all times.

  • If you must walk alone, walk with a strong, confident stance.

  • Carry a whistle, and use it or yell if confronted or attacked.

  • Educate yourself on self-defense techniques.

Lovely: You might overrely on pepper spray, and you might misuse it (though of course people can misuse "self-defense techniques" as well). So we won't let you have any defensive weapons at all, and instead suggest — as our first suggestion — that you instead limit where you go, and ask for protection from others (whether by walking with them or yelling for help).

In Massachusetts, by the way, the state bill of rights begins with, "All men 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 ...." I know of no caselaw on the subject there, but there are many court decisions in other states interpreting such constitutional provisions as in fact securing an individual right. What happens to the right to defend life and liberty of students at Bridgewater and University of Massachusetts-Dartmouth students? It's reduced to (in the words of the Bridgewater policy) the right to "stay aware of their surroundings and perhaps even learn self-defense."

UPDATE: I originally noted that the Cornell explanation was of 1997, and I wasn't sure whether the Cornell pepper spray ban was still in effect — I e-mailed the Cornell people about it, and they've confirmed that it is indeed in effect. I've updated the post accordingly.

156 Comments

The Obvious Doesn't Occur to Roger Cohen:

Roger Cohen says that Israel is "crying wolf" about Iran's imminent acquisition of nuclear weapons. He notes that Israeli leaders previously predicted that Iran would acquire such weapons by 1999, and then by 2004. It doesn't seem to occur to Cohen that it's entirely possible that if Israel and its allies had not been engaging in overt and covert efforts to impede Iran, to a large extent at Israel's urging, those predictions may have come true. It's analogous to criticizing Paulsen for crying wolf for predicting the imminent collapse of credit markets last Fall; there's no way of knowing if his prediction would have come true but for the intervention that he urged. Of course, I have no idea as to whether Israel's current predictions are right or not, but neither does Cohen.

Cohen is right, though, that Israeli leaders have engaged in hyperbole about the threat from Iran's bomb. (Politicians engaging in hyperbole regarding national security issues? Imagine that!) The threat from Iran is not (primarily) that it will immolate Tel Aviv and thus gurantee Iran's own destruction, but that it will use its nuclear weapons as blackmail. Just for example, if Iran threatened to nuke a major European city, or allow an affiliated terrorist group to do so, if the Europeans failed to comply with some unreasonable demand or other (say, cutting off all ties with Israel), how confident do you think Mr. Cohen, or anybody else, is that the Europeans wouldn't simply fold? The reaction to the brouhaha over the Mohammed cartoons hardly gives me confidence in European, or even American (remember how newspapers refused to publish the cartoons in stories about the controversy?) fortitude.

UPDATE: James Taranto has some rather sharp words for Cohen. I, too, noticed that Cohen referenced "Israel's hegemony" creating a "kind of slavery," but I charitably attributed it to Cohen getting a bit too revved up on Pharoah/slavery analogies in preparation for his seder.

Comments are open for four hours.

UPDATE: BTW, I never commented on Roger Cohen's ridiculous column in February on Iran's Jews, the inevitable result of a naive (or tendentious) individual interviewing unfree people who are being watched by government agents. It reminded me very much of an incident from my college days. A "peacenik" classmate took a Soviet-sponsored tour of the USSR in the Spring of 1988. When he returned, he assured the school paper that the Jews in the USSR (some of whom he met personally) were very happy to be there, and don't want to leave. A year later, 400,000 of them fled the first chance they got.

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Bloggers: Left/Right agree that Internet helps journalism. Disagree on whether the press is helping Obama:

In this week's National Journal blogger poll, the first question was "On balance, has journalism been helped more or hurt more by the rise of news consumption on the internet?" Eighty-nine percent of the Left and 65% of the Right said "helped more." I was among the minority who voted the other way. My comment: "News consumers have been helped, especially for national and international issues. Professional journalists have been hurt, since the number of jobs in New Media journalism is much smaller than the number of Old Media jobs which are disappearing."

Question two was "What do you think of the coverage of Barack Obama so far this year?" On the Right, 93% said "too easy," a position shared by only 17% on the Left. I voted "too easy," and added this comment: "Almost no accountability for Obama's flagrant breaking of his campaign promises about ethics and transparency. Very little coverage of his administration's endless string of diplomatic gaffes."

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The Right To Keep and Bear Arms in Self-Defense and Government Tracking Regulations:

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Government tracking regulations -- nondiscretionary licensing regimes either for possession or carrying, instant background checks, registration requirements, serial number requirements, requirements that guns be test-fired and the marks they leave on bullets recorded, or requirements that all new semiautomatic guns must “microstamp” the ejected brass with the gun’s serial number -- generally don’t by themselves substantially burden self-defense. If the regulations contain some restrictions, such as waiting periods, fees, or denials of licenses to certain people (either as a class or in government officials’ discretion), those might be substantial burdens. But the tracking regulation itself is not much of a burden on self-defense: A person is just as free to defend himself with a registered gun as he would be if the gun were unregistered.

In one high-profile constitutional law area, such requirements are indeed forbidden: Most speakers don’t need to get licenses, or register their speech, or submit their typewriters for testing so that their anonymous works can be tracked back to them. Likewise, tracking requirements for abortions would likely be unconstitutional.

But this is not the normal rule for constitutional rights. Even speakers may sometimes need to register or get licensed. Parade organizers may be required to get permits. Ballot signature gatherers may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected. People who contribute more than a certain amount of money to a candidate may be required to disclose their identities to the candidate, who must in turn disclose those identities to the government; lower courts have held the same as to people who contribute to committees that support or oppose ballot measures. The contribution disclosure requirements have been judged (and upheld) under a moderately strong form of heightened scrutiny; the other disclosure requirements have been upheld even without strict scrutiny.

Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license. The Takings Clause bars the government from requiring people to leave their land unimproved and thus valueless, but the government may require a building permit before improvements are made.

People have a right to vote, under all state constitutions and, in practice, under the federal Constitution, but they may be required to register to vote. Whom they voted for has been kept secret, at least for a hundred years, but whether they voted and what party they belong to is known to the government, and is often even a matter of public record. Many of these requirements are instituted to prevent crime (chiefly fraud) or injury (such as the injury stemming from unsafe construction).

This of course leaves the question of what the right to bear arms is most like: those rights for which government tracking can’t be required, or those rights for which it can be. I’m inclined to think that it is more like the trackable rights, and that it is the untrackable rights that are the constitutional outlier.

The rule barring licensing requirements for many kinds of speakers is in large part historical, stemming from an era when such licenses were discretionary and used to control which viewpoints may be expressed. It persists largely because of a continuing concern that some viewpoints may be so unpopular with the government or the public that people who are known to convey those viewpoints will face retaliation. Even so, some kinds of speakers may have to identify themselves to the government, when the speech poses serious concerns about fraud or corruption. The same worry about retaliation, coupled with a longstanding tradition of privacy of medical records, likely provides the cause for the no tracking rule for abortions.

Gun owners as a group have faced some hostility from the government and the public, but gun ownership is very common behavior, and there’s safety in numbers: It seems unlikely that the government will retaliate against the tens of millions of gun owners in the country, who represent 35 percent to 45 percent of all American households. Gun carrying is both rarer and, if required to be done openly, more likely to viscerally worry observers. But mere gun ownership, if disclosed to the government rather than to the public at large, is not likely to yield a harsh government reaction, and registration requirements are thus unlikely to deter ownership by the law-abiding. (I set aside the question whether making gun ownership or concealed carry license records public under state open records acts might be unconstitutional.)

It’s true that certain kinds of guns are rare and especially unpopular. But as I’ve argued above, the right to bear arms in self-defense should be understood as protecting a right to own some arms that amply provide for self-defense, not a right to own any particular brand or design of gun. (In this respect, it differs from the right to speak, which includes the right to convey the particular viewpoint one wishes to convey. Many kinds of arms are fungible for self-defense purposes in a way that viewpoints are not fungible for free speech purposes.)

It is not impossible that the government will want to go after gun owners, chiefly to confiscate their guns. This could happen if the government shifts to authoritarianism, and thus doesn’t care about constitutional constraints and at the same time wants to seize guns in order to diminish the risk of violent resistance. Or it could happen if a future Supreme Court concludes the individual right to bear arms is not constitutionally protected, and Congress enacts a comprehensive gun ban. Some have argued that the Free Speech Clause ought to be interpreted from a “pathological perspective,” with an eye towards creating a doctrine that would serve free speech best even in those times when the public, the government, and the courts are most hostile to unpopular speakers. Should the Second Amendment be interpreted the same way?

Here we may be getting to a topic that’s outside the scope of this Article, because it requires us to think about whether the Second Amendment retains a deterrence-of-government-tyranny component as well as a self-defense component. I’m inclined to be skeptical of the ability of either constitutional doctrine or private gun ownership to constrain the government in truly pathological times. I’d like to think that either or both would provide a material barrier to such pathologies, but I doubt that this would in fact be so, especially given the size and power of modern national government. Nonetheless, figuring this out requires thinking through the deterrence-of-government-tyranny rationale, something I have not done for this Article.

For now, I’ll leave things at this: The tracking requirements likely don’t themselves impose a substantial burden on the right today. Such tracking requirements aren’t generally unconstitutional as to other rights, though they are sometimes unconstitutional as to some rights. And the key question is the extent to which current doctrine should be crafted with an eye towards a future time when the doctrine or government practice may be very different than it is today.

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Two Questionable Expert Evidence Rulings:

In Gass v. Marriott Hotel Services, Inc., 558 F.3d 419 (6th Cir. 2009), the plaintiffs claimed that after exposure to a "cloud" of pesticides in their hotel room, they suffered from "multiple chemical sensitivity" resulting in a variety of symptoms. The district court held that the plaintiffs' experts were not qualified to determine what pesticides the plaintiffs were exposed to, at what levels, or whether their exposure caused their symptoms. The district court therefore granted summary judgment to the defendants. On appeal, the Sixth Circuit agreed that the experts' exposure and causation testimony was inadmissible, but held that under Michigan law the case could nevertheless go to the jury on what amounts to a res ipsa loquitor theory. Judge Danny Boggs, dissenting, persuasively argues that its beyond the common knowledge of lay jurors to determine whether a variety of symptoms that have many different causes can be attributed to an unknown dose of chemicals that have not been positively identified. It's certainly rather strange for a court to hold, as the majority did, that a medical doctor is not qualified to testify regarding causation, but lay jurors can nevertheless draw an inference of causation from common knowledge. My own antenna are raised by the diagnosis of "multiple chemical sensitivity," which has never been shown to exist as a medical condition, except perhaps in the realm of psychosomatic illness.

And speaking of MCS, in Kennedy v. Eden Advanced Pest Technologies, 222 Or.App. 431, 193 P.3d 1030 (Or. App. 2008), the court wrote an atrocious opinion allowing in MCS evidence. Here are a few choice quotes:

Although the American Board of Medical Specialties does not recognize "environmental medicine" [formerly known, and discredited as, "clinical ecology"] as a specialty, the American Academy of Environmental Medicine does. Again, the implication from those facts is that there exists a legitimate debate within the scientific community between two groups of scientists. For example, Rea testified that his technique for determining the existence of chemical sensitivity in a patient is commonly used in the medical community to which he belongs. In contrast, Burton suggested that only "fringe" medical practitioners would diagnose for toxic illness in the manner that Rea does. In our view, the trial court, in performing its gatekeeping function, need not keep from the jury evidence that demonstrates only such a conflict among professionals [editor: like the conflict between mainstream biologists and creationists?].

Moreover, we observe that the evidence is in conflict about the "potential rate of error" of Rea's diagnostic technique. Burton testified that the error rate is 100 percent, a statement that follows ineluctably from his view that chemical sensitivity does not exist. But a jury might not have been persuaded of that premise in light of Rea's qualifications and clinical experience... [shouldn't the court be looking at the scientific evidence for MCS, not the qualifications and experience of the expert? Homeopaths are well "qualified" in homeopathy and can be experienced as well, but that hardly speaks to the reliability of homeopathy. Maybe the court would allow experienced Reiki specialists to testify to the magnetic energy fields their "healing touch" conveys...]

"Indeed, even defendants' expert agreed that chemical sensitivity is not a new or previously unheard of diagnosis, having been first proposed in 1940." [So? Astrology is even older!]

And my personal favorite. After acknowledging that many other jurisdictions have excluded MCS evidence:

Under Oregon law, however, the proper inquiry is not whether MCS or chemical sensitivity is a "valid" diagnosis or is recognized by other jurisdictions; rather, we must, on the record in this case, "decide whether truthfinding is better served by admission or exclusion."

I am very curious to know how allowing a jury to hear expert testimony of invalid diagnosis can "better serve truthfinding" than excluding such testimony.

In the court's defense, it relied on Jennings v. Baxter Healthcare Corp., 331 Or. 285, 14 P.3d 596 (2000), itself one of the worst post-Daubert expert evidence opinions. Oregon adopted Daubert when it thought the opinion provided a liberal admissiblity standard, but declined to adopt a meaningful reliability standard once it became clear that the full Daubert trilogy, codified in amended federal Rule 702, was far from a let-it-all-in standard. The end result is allowing all sorts of quackery into Oregon courts.

I'm opening up comments for a few hours.

10 Comments

Robinson on Zywicki on the Foreclosure Crisis:

Peter Robinson's Forbes.com column today features my analysis of the mortgage and foreclosure crisis, "The Housing Crisis Isn't A Crisis."


Does the United States rule Taiwan?

Obviously not, de facto. Taiwan is ruled by the people of Taiwan, via their elected government. The Beijing dictatorship is working hard but patiently to destroy Taiwan's sovereignty, and to bring Taiwan under the rule of the unelected kleptocracy which currently oppresses China, Tibet, and the Uighers.

But as a pure matter of international law, who is the sovereign of Taiwan? Perhaps the United States military government. China exercised sovereignty over part of Taiwan beginning in the 17th century, and asserted (but did not exercise) sovereignty over the whole island for fewer than 20 years in the 19th century. In the late 19th century, China transferred Taiwan to Japan, which ruled Taiwan until 1945. The Japanese forces on Taiwan surrendered to the American military, and so by the established laws of war, the United States became the occupying power. In the 1954 San Francisco Peace Treaty, Japan renounced all claim to Taiwan, but the treaty did not otherwise specify the status of Taiwan, and so the U.S. remained in charge, de jure if not de facto, as it does to this day. So goes an argument you can find in the Harvard Asia Quarterly, among other places.

So some Taiwanese filed a case in which they asked the the U.S. Department of State be ordered to issue them U.S. passports; they argued that legally speaking, they are "U.S. nationals" but not U.S. citizens. On Tuesday, the D.C. Circuit Court of Appeals issued an opinion stating that the plaintiffs might be correct as a matter of law, but that the the Political Question doctrine prevented the D.C. Circuit from deciding the issue.

I think that the D.C. Circuit's decision on the Political Question doctrine was correct. And I realize that a U.S. affirmation of sovereignty over Taiwan would very likely lead to a war with China, and so such an affirmation should not be made without full debate in the political branches of government, including a vote of Congress. Nevertheless, the people of Taiwan are about the most pro-American, pro-democracy, and well-educated group as can be found anywhere on the planet. Yes, Ireland and Israel would be close contenders, but the U.S. has no legal claim to sovereignty over either of those nations. It would be a better world if Taiwan's politicians were (like the politicians in American Samoa) debating the terms of their legal relationship with the United States, rather than worrying about how to avoid being engulfed by the tyrants of Beijing, and turned into an island version of Tibet's hell on earth.

40 Comments

Thursday, April 9, 2009

The Role of Compassion in Judicial Decisionmaking: Public debates on the proper role of the courts often focus on the tension between two competing visions: Some people think judges should adopt a narrow role heavily constrained by precedent and text, and some people think judges should feel more free to make rules and decisions in light of the equities of the situation.

  I was thinking of that tension when I read an en banc decision of the Third Circuit from last summer, Pierre v. Attorney General. I'm going to describe the basic facts and legal standard of this very disturbing case, and then have a reader poll on how you would vote if you were a judge.

  Here are the tragic facts. Pierre is from Haiti, and he was living lawfully in the U.S. as a permanent legal resident. Pierre is deeply troubled and has very violent tendencies, however. One night, he broke into the home of his ex-girlfriend and attempted to kill her. When a neighbor interrupted the attack, Pierre attempted to commit suicide by drinking a container of battery acid. His suicide attempt was unsuccessful, however: He lived, but his ingestion of the battery acid destroyed his ability to eat or drink normally. Pierre can survive only by receiving constant medical attetnion: He must be fed a liquid diet administered through a feeding tube.

  Pierre was convicted of attempted murder and served the mandatory 10 years of his 20-year sentence in a U.S. prison, where he received the medical care needed to keep him alive. After the mandatory 10 year sentence was up, the INS concluded that it was going to deport Pierre for having committed an aggravated felony.

  If Pierre is deported back to Haiti, he will be detained indefinitely in a Haitian prison. Haitian prisons are brutal. In particular, there are no medical facilities to feed Pierre and keep him alive. Haitian prisons just can't provide Pierre with the medical care he needs. If Pierre is sent back to Haiti, he will almost certainly die of starvation in prison in a matter of days or at most weeks.

  Now let's turn to the law. The only power a court has to stop the INS from removing Pierre in such circumstances is under the Convention Against Torture, as enacted into federal law by Pub. L. No. 105-227. Under the Convention Against Torture, courts must intervene in the removal if the individual can show that he is more likely than not to be tortured if sent to the proposed country of removal. Pierre's argument is that the failure of Haitian authorities to provide him with adequate medical attention will be tantamount to torture — he will slowly and painfully starve to death — and therefore the court must block his removal.

   The relevant regulation, 8 C.F.R. § 208.18(a)(1), limits torture to that which is
intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
  Now imagine you are a judge forced to decide Pierre's fate. Do you vote that Pierre must be sent to Haiti where he will die in a matter of days because the regulation clearly limits torture to conduct "intentionally inflicted," and the suffering that Pierre describes would not be intentionally inflicted? Or do you you vote that Pierre can stay in the United States, because the statute and regulation should be read to include the horrific reality of what will happen to him as tantamount to torture? To add another wrinkle to this, the options will also ask you to categorize your general public policy preferences — as right-of-center, left-of-center, or "other." Here's the poll:

You are a judge who must vote in Pierre's case. Do you vote to allow Pierre's removal from the United States, or must he be allowed to stay in the United States?
I vote to allow the removal. My politics are right-of-center.
I vote to allow the removal. My politics are left-of-center.
I vote to allow the removal. My politics are "other."
I vote he must be allowed to stay here. My politics are right-of-center.
I vote he must be allowed to stay here. My politics are left-of-center.
I vote he must be allowed to stay here. My politics are "other'."
  
Free polls from Pollhost.com


198 Comments

Against Universal Coverage:

An interesting op-ed by Ramesh Ponnuru.

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Questions for Harold Koh:

Julian Ku has a series of questions Harold Koh should have to answer before he is confirmed. I generally believe the Senate should be deferential to a President's nominees, but I also believe that the confirmation process should serve to inform the public about the type of administration a President is putting together. So I hope some Senator asks Koh these questions, and I look forward to hearing the answers.

Related Posts (on one page):

  1. Newsweek Previews Debate Over Koh:
  2. Questions for Harold Koh:
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"Internet records to be stored for a year": I don't normally follow EU privacy law, as it's often quite different from US privacy law, but this news from across the pond seemed worth noting:
  A European Union directive, which Britain was instrumental in devising, comes into force which will require all internet service providers to retain information on email traffic, visits to web sites and telephone calls made over the internet, for 12 months. Police and the security services will be able to access the information to combat crime and terrorism.
  Hundreds of public bodies and quangos, including local councils, will also be able to access the data to investigate flytipping and other less serious crimes. It was previously thought that only the large companies would be required to take part, covering 95 per cent of Britain's internet usage, but a Home Office spokesman has confirmed it will be applied "across the board" to even the smallest company.
  Notably, there is no such law in the United States. ISPs can keep records for as long or as short as they like. Of course, not everyone is happy with that, but that's the current system.

  Thanks to Elizabeth Joh for the original link.

  UPDATE: Commenter martinned chimes in with some helpful context:
The Directive in question is Directive 2006/24 of 15 March 2006. It was recently upheld by the ECJ in a constitutional challenge as to its legal basis in Case C-301/06, Ireland v Parliament &Council, of February 10, 2009. Most of the Directive has already entered into force, but Member States were allowed to postpone its application to various internet activities until 15 March this year (art. 15(3) of the Directive), which, I guess, is why the Telegraph was writing about it. As to the period of storage, under art. 6 the Member States are allowed to set it anywhere between 6 months and 2 years. Apparently, the UK, like most MS, opted for 1 year.

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Harold Koh, "A World Drowning in Guns":

Many people are interested in Harold Koh's nomination to be State Department legal advisor, but not all of those people have access to Lexis, Westlaw, or a good law library. Accordingly, here are links to two important articles by Koh:

On American Exceptionalism, 55 Stanford Law Review 1480 (2003). In this article, Koh examines various definitions of American "exceptionalism", then provides his own, and proposes strategies to eliminate the inappropriate exceptionalism.

A World Drowning in Guns, 71 Fordham Law Review 2333 (2003). In this article, Koh lauds the international gun control effort, and criticizes John Bolton's invocation of the Second Amendment at the 2001 UN small arms conference. VC citation counters will be pleased to see citations to an article by Randy Barnett and one by me.

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Maryland May Use Eminent Domain to Take Over the Preakness:

Maryland state legislators are considering legislation that would enable them to use eminent domain to condemn the Preakness Stakes horse-racing track, as well as the trademark and other intellectual property rights associated with the famous race which is part of the Triple Crown [HT: VC reader John Thacker]:

Under the bill, the state could seize the tracks as well as the Woodlawn Vase and Preakness-related trademarks, copyrights and contracts, if doing so prevents "the loss of the historically, culturally, and economically important" horse racing legacy . . .

The last-minute legislation was prompted in part by reports that Pikesville developer Carl Verstandig was interested in razing Pimlico and turning the Northwest Baltimore property into a shopping center. He has since said he would prefer to keep the Preakness at Pimlico, as have other potential bidders.

Magna Entertainment Corp., the firm that currently owns the Preakness and the Pimlico race track, is facing bankruptcy. And Maryland officials, including the governor, claim that the threat of eminent domain is needed to keep the Preakness from being moved out of state, as the Baltimore Colts were in 1984.

This argument doesn't make much sense. As I pointed out in a recent post, the Colts' famous midnight departure to Indianapolis was itself precipitated by the state's threat to use eminent domain against them. More generally, state efforts to use eminent domain against mobile assets tend to be self-defeating. They cause owners of those assets to flee the jurisdiction and also deter new firms from moving to the state. I suspect, therefore, that Maryland's efforts to use eminent domain to keep the Preakness in-state will be unsuccessful. They may even bring about the very result that state legislators say they want to avoid.

However, there is a complication. It's not clear to me whether the most valuable elements of the Preakness really are mobile assets or not. Since I don't know much about horse-racing, I'm not sure whether the truly valuable commodity here is the Pimlico race track (which is static) or the trademarks and other intellectual property rights associated with the annual Triple Crown race (which can potentially be held at a different race track in another state). In other words, would horse-racing fans be just as willing to watch a Preakness race held in a different state? Or is there something unique about the Maryland site that would make the race significantly less popular if it were moved elsewhere? If the latter is true, then Maryland's threat to use eminent domain might accomplish its objective of keeping the Preakness race going in-state. Ironically, it would do so precisely because the race can't really be moved out of state without losing much of its profitability. The owner's only realistic options would be to either keep the race in Maryland or shut it down entirely in favor of some other use for the land; eminent domain can prevent Magna from picking the latter option. Perhaps readers with greater knowledge of horse-racing can enlighten me as to the true nature of the Preakness' value.

Even if Maryland's eminent domain threat is rational in the sense of having a real chance of achieving its goal, I'm not convinced it is good policy. If the owners of the Preakness track prefer to shut it down and use the land for other purposes, the state probably should not intervene. After all, the owners have the strongest incentives to allocate the land to its most valued use; unlike state legislators, they have their own money at stake. If the highest valued use of the land turns out to be something other than horse-racing, I don't see any good reason for government intervention to prevent it. Indeed, if the new use produces more economic value than the race track does, preventing the change might actually hurt the state's economy during an already difficult time.

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Dungeons and Dragons Co-Creator Dave Arneson Passes Away:

Dave Arneson, co-creator of Dungeons and Dragons along with the late Gary Gygax, passed away today at the age of 61. Gygax himself died last year, at which time I wrote about the cultural significance of of D&D for my generation of academics and intellectuals. Arneson's role in the development of D&D was less well-known than that of the more famous Gygax. But it was he who introduced many of the crucial elements of character role-playing.

Unfortunately, Gygax and Arneson had a falling out in the late 1970s after a legal dispute over the intellectual property rights to their joint creation. However, both deserve to be remembered for their outstanding achievement in creating the world's most successful roleplaying game and for its positive influence on an entire generation of intellectually-oriented young people.

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The Fastest-Growing Thing:

I'm in Boise, Idaho, of all places, at the moment, getting ready for a talk tomorrow (Jefferson's moose, the Internet, and all that), and I'm just wandering around and wondering about something (and I've found that when I'm wondering about something, VC readers can sometimes help me out). Has the Internet been the fastest-growing thing on the planet over the past 30 years or so? It's a funny question, but an interesting one, when you ask it like that. The Net's been growing pretty steadily at a rate of around 4-5% a month at least since 1980 or so — say 30 years, going from a couple dozen machines to over 550 million. Is there anything else on earth that can match or better that, over that long a period? I can't think of anything.

At least, I can't think of anything tangible. There may be intangible things — like "computing power," for example, or maybe "human knowledge," or the like — that kept up a growth rate this high over this long a period. But is there anything with real, material existence — any population of bacteria, or grains of sand on a beach, or leaves on trees, or houses on a stretch of road, or ... that did so?

And if not, that's got to amount to a pretty remarkable achievement — to have built the fastest-growing thing on the planet? How did we do that? And who do we give the medals to?

Update: Thanks for all the ideas -- keep 'em coming. Many of the suggestions, though, fall into the "interesting, but not really close" category, e.g. kudzu, bamboo, human population, bacteria . . . The Net's growth rate, 4-5 % a month, implies doubling every 14 months or so — if the amount of kudzu on the planet had been doubling every 14 months or so, for 30 years, we'd be covered with it. Literally. Like many organisms, it can grow really, really fast - but it does not keep it up, year after year after year after year. And human population isn't even close - if it had been doubling every 14 months since 1980, the total population would be over 150 trillion.

Other networks are interesting - I don't have the data for railroads, telephones, cell phones, etc., but I seriously doubt they can match it for this long a period - adding that much capacity is incredibly costly, and doubling capacity every year or so starts getting expensive after a while . . . but I'm going to look into it.DavidP

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Quebec Appellate Court Upholds Lower Court Decision Reversing Father's Grounding of 12-Year-Old:

I had blogged about the lower court decision here; the appellate decision is here, in French -- if anyone can translate whatever seem to be the key portions, I'd be much obliged. In the meantime, here's a CBC news account:

A Quebec father who was taken to court by his 12-year-old daughter after he grounded her in June 2008 has lost his appeal.

Quebec Superior Court rejected the Gatineau father's appeal of a lower court ruling that said his punishment was too severe for the wrongs he said his daughter committed....

In its ruling, issued Monday, the province's court of appeal declared the girl was caught up in a "very rare" set of circumstances, and her father didn't have sufficient grounds to contest the court's earlier decision....

[The daughter] had been living with her father after her parents split up when he grounded her in 2008 for defying his order to stay off the internet. The father caught her chatting on websites he had blocked, and alleged his daughter was posting "inappropriate pictures" of herself online.

Her punishment: she was banned from her Grade 6 graduation trip to Quebec City in June 2008, for which her mother had already granted permission.

The father — who had custody — withheld his written permission for the trip, prompting the school to refuse to let the girl go with her classmates.

That's when the girl asked for help from the lawyer who represented her in her parents' separation, and petitioned the court to intervene in her case....

The girl — who now lives with her mother — doesn't have much of a relationship with her dad now ....

Thanks to Ken at Popehat for the pointer.

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The Wall Streeting of Higher Education:

This week's Chronicle of Higher Education has several interesting articles all that focus on the influence of Wall Street on higher education.

Consider this entry by Arjun Appadurai, who speaks to "Higher Education's Coming Leadership Crisis":

Governance. Most college and university boards are composed largely of wealthy people, usually from the worlds of finance, law, and private enterprise. They are sometimes alumni but are often selected for their personal capacity to give, their links to other people who might give, or their historical record of having given.

Many trustees today have in fact been part of the elite sectors of finance, law, and enterprise that have proven improvident, shortsighted, and badly governed. Can they be seen as the wisest of our wise who will bring both generosity and wisdom to the academy? Obviously many trustees have values and intellects that transcend their business skills. In some lucky educational institutions, those board members take care to respect the differences between the enterprises they own or manage and the educational institutions to which they serve as financial and policy stewards and, above all, as people to whom the president is accountable. But can we any more believe that the erstwhile masters of the economy are the best suited to be stewards of our most cherished educational institutions?

The exigencies of fund raising have created a gradual tendency to identify university stewardship almost completely with corporate leadership. Here colleges and universities may wish to learn something from the way American communities think about local school boards, which tends to reflect a deeper trust in the broad social intelligence of all Americans, of citizens from every walk of life who have earned the respect of their peers. After all, in aggregate, the hard-earned dollars of American parents, converted into tuition, are more vital to the overall financial health of American higher education than large private and corporate gifts, except in a small number of privileged institutions. If parents and ordinary citizens trust us with their money, surely they can be expected to be as wise with the trusteeship of our colleges and universities.

Higher education faces many challenges in the short run. Our solutions will not stick if we do not re-examine the potential value of "Rolodex" presidents, slash-and-burn financial officers, and too many corporate leaders who could not mind their own stores.

The cover story, "Debt Bomb is Ticking Loudly on Campuses" is an eye-opener as well. The combination of rising interest rates, a plunging stock market, and overinvestment of endowments in highly-illiquid investments has spawned both solvency and liquidity problems, even at places like Harvard:

The end of the fiscal year usually isn't a momentous occasion for colleges. But this June 30 could be a day of reckoning many never expected.

Colleges borrowed tens of billions of dollars over the past decade to improve facilities, in some cases stretching themselves to the limit and beyond. Now the financial crisis threatens to turn that debt into a ticking bomb.

The complex problem arises from a simple scenario: The debt load for many colleges has gone up, but the value of their assets has plunged. On top of that, some of the debt that they structured to protect themselves from rising interest rates has now become a financial liability.

A special problem has turned out to be "debt swaps" which have gone sour and are now forcing institutions to borrow money just to keep the lights on:

In some cases, it's the very deals colleges made to hedge against the risk of rising interest rates on their debt — called "swaps" — that are now causing them problems.

Both Harvard and Vanderbilt Universities, for example, held swap agreements on their debt that required them to post collateral if the market value on their swaps declined below a certain threshold. Because of unusual conditions in the interest-rate market, the value of many such swaps, which are in effect contracts with third parties, has dropped below those thresholds.

To avoid tapping its already declining endowment to meet that collateral call, Vanderbilt last month borrowed $250-million on the taxable market to continue operating freely. Harvard decided to buy its way out of some swaps altogether. Some of the $2.5-billion it borrowed in taxable and tax-exempt markets in December went toward that purpose.

The irony, of course, is that falling endowments and rising debt obligations are leading to a series of downgrades of the credit ratings of colleges and universities. So now, just as they need to go into the market to borrow money to fund operating expenses, they are facing higher costs of borrowing.

Of course, the bankers make money both coming and going on these--first writing the swaps then later unwinding them. It seems unlikely that it is just a coincidence that leveraging of higher education and the growth in the use of expensive, illiquid investments just happened to coincide with a growing trend toward the domination of university boards by Wall Street, as noted awhile back here and here by Roy Poses at Health Care Renewal.

Update:

Just this afternoon, Dr. Poses has posted (in a similar vein) "Hedge Fund U" describing the failure of the Yeshiva University Board of Trustees to catch the Madoff fraud--despite the presence of financiers in many leadership positions on Yeshiva's board.


VC T-Shirt:

A commenter to my March Madness winner post asked where one can get a Volokh Conspiracy t-shirt. At Cafe Press here.

Update:

The link is now fixed.

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ILVTOFU:

From the Denver Post:

Kelley Coffman-Lee's plan to advertise her love of tofu on a license plate ran afoul of censors at the Division of Motor Vehicles.

The 38-year-old mother of three asked the DMV to approve a special plate emblazoned with "ILVTOFU" for her Suzuki SL-7....

The agency turned down the request, saying the plate might be offensive to some people....

It turns out that "FU" is on a long list of letter combinations barred by the division, said Mark Couch, spokesman for the Department of Revenue. Think of it as "Eff you," he said.

Thanks to How Appealing for the pointer.

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The Right To Keep and Bear Arms in Self-Defense, and Taxes, Fees, or Regulations That Indirectly Raise Gun or Ammunition Prices:

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that “keeping a handgun in the home is associated with at least $600 per year in externalities,” is one such example. “The poorly financed [self-defense] of little people,” like their “poorly financed causes,” deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people”); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one’s home, partly on the grounds that “[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.”).) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it’s imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to “internalize the full social costs of their choices,” even if you take into account as a “cost” the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don’t amount to “substantial obstacle[s]” to a woman’s getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

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George Will on Umpires as "Baseball's Judicial Branch":

Conservative columnist George Will has written an op ed describing the role of umpires as "baseball's judicial branch." He joins a long list of jurists, including Supreme Court Chief Justice John Roberts, who have analogized umpires to judges:

Baseball is . . . the only sport that asks an on-field official to demarcate the most important aspect of the field of play -- the strike zone. Although defined in the rule book, its precise dimensions are determined daily by the home plate umpire.

Umpires are islands of exemption from America's obsessive lawyering: As has been said, three strikes and you're out -- the best lawyer can't help you. But because it is the national pastime of a litigious nation, baseball is the only sport in which a nonplayer is allowed onto the field to argue against rulings.

Umpires are used to having their eyesight questioned -- when someone criticized Bruce Froemming's, he said, "The sun is 93 million miles away, and I can see that" -- but their integrity is unquestioned . . . As umpires say, "If they played by the honor system, they wouldn't need us."

Sport -- strenuous exertion structured and restrained by rules -- replicates the challenges of political freedom. Umpires, baseball's judicial branch, embody what any society always needs and what America, in its current financial disarray, craves -- regulated striving that, by preventing ordered competition from descending into chaos, enables excellence to prevail.

Some of Will's points strike me as stretches. But he is right to focus on the umpires' broad discretionary authority over the strike zone, which is indeed somewhat analogous to judges' broad discretion in exercising the power of judicial review. I drew a similar analogy in this post.

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ABA Journal Article on the Kelo Backlash:

The ABA Journal has an interesting and generally well-written article on the political backlash sparked by Kelo v. City of New London, the controversial Supreme Court decision that ruled that government can forcibly transfer property from one private individual to another to promote "economic development." As journalist Steven Seidenberg, author of the new article, points out, Kelo led to an unprecedentedly broad political reaction, with 43 states and the federal government passing new legislation limiting eminent domain. However, the majority of these new laws are likely to be ineffective, a point I documented in great detail my forthcoming Minnesota Law Review article on the Kelo backlash.

I have a few minor quibbles with Seidenberg's account. For example, he describes California's Proposition 99 as a measure that prevents "government entities in the state from taking a single-family residence and then transferring it to another private owner." In reality, as I explained in this LA Times article, Prop 99 doesn't provide any meaningful protection for property rights of any kind, and was probably deliberately drafted that way by the California League of Cities, a organization of local governments that seeks to preserve broad eminent domain power.

Overall, however, Seidenberg's piece is one of the best media summaries of post-Kelo eminent domain reform that I have seen. And I don't say that just because he quoted me several times; he also cites other experts who have different views on recent developments in eminent domain law.

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Bloggers Urge That Organizations To Which They Give "Free Publicity" Advertise on Their Sites:

The Plum Line, Greg Sargent's blog on the Washington Post's whorunsgov.com, reports:

Some of the leading liberal bloggers are privately furious with the major progressive groups — and in some cases, the Democratic Party committees — for failing to spend money advertising on their sites, even as these groups constantly ask the bloggers for free assistance in driving their message.

The post then goes on to give more details, including this quote from a blogger: “They come to us, expecting us to give them free publicity, and we do, but it’s not a two way street. They won’t do anything in return. They’re not advertising with us. They’re not offering fellowships. They’re not doing anything to help financially, and people are growing increasingly resentful.”

I haven't thought hard about this subject; and I realize that it's easy for me to be cavalier about advertising revenue, since my academic day job lets me blog without worrying about ad income. But still I wonder whether it's quite right for authors who publish their own opinion and news commentary to demand a "two way street" in which the authors get advertising money from the people they praise.

Now some amount of blogger commentary about people who pay them money is likely inevitable. Many bloggers work at think tanks, and they may report on their employer's work product, thus helping promote the employer. I'm a part-part-part-time Academic Affiliate with the Mayer Brown LLP firm, and I occasionally blog about Mayer's cases. That, I think, can generally be dealt with by notes explaining the possible conflict of interest. (For instance, I always note, when I blog about a case that I know to be one of Mayer's, that I have an affiliation with Mayer.)

But if an ostensibly independent blogger has a general pattern of demanding advertising — even indirectly, rather than in some personal communication — from institutions in exchange for publicizing the institutions' work, that sort of relationship strike me as harder to disclose in any transparent way. And my sense is that historically this sort of deal has been seen as not entirely kosher in the newspaper business, or for that matter in the opinion magazine business. Naturally, readers expect that an opinion magazine would have editorial biases. But I don't think they expect that the opinion magazine would be making advertising dollars from positive coverage (or "free publicity") that it provides to various organizations.

On the other hand, perhaps a different model is needed for small blogs that may need advertising income to stay afloat; or perhaps some reasonable disclosure system would suffice to take care of any possible problems here; or perhaps I'm missing something, and there really aren't likely to be any problems. I just wanted to tentatively express my thoughts on the subject, and hear our readers' thoughts in return.

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Wednesday, April 8, 2009

Advanced Topics in Warranty Law:

A product is sold with printed warranties in three different languages. The consumer reads and understands each of them. The different languages offer different warranty terms. Which warranty controls?

Factual background: Last week, Denver University law students organized a firearms safety field trip to Cherry Creek State Park. The day before, students were taught firearms safety by Colorado lawyer Anthony Fabian. At the state park, the students could rent firearms and buy ammunition, and practice responsible firearms use. The DU Law Republicans paid most of the costs for the rentals and ammunition. Several dozen students attended the event at Cherry Creek, and I joined them. At the event, I purchased (well, actually I obtained for free, thanks to the generous DU Law Republicans), a box of ammunition. The box was the least expensive .45 caliber ammunition that was available. It was manufactured by Aguila, a Mexican company. (Ironically, Mexican citizens are generally forbidden from possessing .45 handgun ammunition.)

Being an attorney, I of course carefully read the warranty on the box. The Spanish warranty states: "Garantizamos que fue fabricado con esmero." [We guarantee that it was made with great care.] In French: "Nous garantissons que ce produit a ete fabrique avec the plus grand soin." [We guarantee that this product has been made with the greatest care.] (Note for linguists: the box's printed text does not include accent marks in any language.) In English: "We guarantee the exercise of reasonable care in the manufacture."

So we have three different levels of guarantee: greatest care (French), great care (Spanish), and reasonable care (English). If there were a product liability case in which the particular standard made a difference, which one would control?

After the guarantee, there is a disclaimer. In Spanish: "pero no asumimos responsabilidad alguna." [But we assume no other responsibility.] In English: "but assume no further responsibility." In French: "Nous nous dechargeons du toute responsibilite en cas utislation non-conforme."[We disclaim all responsibility in case of non-conforming usage.]

So the Spanish and English disclaimers are the same, and they disclaim all responsibility beyond some degree of care in manufacture. In contrast, the French disclaimer appears to be much narrower, and disclaims responsibility only for non-conforming uses. Other text on the box provides various safety rules (e.g., "Only use guns in good conditions. Treat every gun as if it was loaded.") But these rules too differ among the languages. In English: "Keep gun pointed in a safe direction." In French, "Ne jamais pointer l'arme en direction d'une personne." [Never point the arm in the direction of a person.] The English language version is better stated, since sometimes pointing the gun at a person (who is a violent attacker) is proper gun safety, and since there can be unsafe pointing even when not pointing at a person (e.g., shooting at a paper target without being sure that the backstop is safe).

So, if there is a product liability case, does the near-total English/Spanish disclaimer apply? Or the much narrower French disclaimer, which appears to discharge liability only for violations of the safety rules? Can a plaintiff pick and choose languages--such as relying on the narrow French disclaimer, but then citing the English version of a safety rule to determine what is a non-conforming use?

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Paying for a Case?

Did a Houston law firm effectively purchase a potentially lucrative no-bid contingency fee contract with political contributions to Pennsylvania Governor Ed Rendell? Based on the facts in this WSJ editorial, it sure looks that way. I'd be curious to see the other side of this story, if there is one.

UPDATE: The Philadelphia Inquirer reports on the story here.

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Heat Rises Over Hamilton Nomination:

The CQ "Legal Beat" blog reports tensions are mounting between Senate Republicans and Democrats over judicial nominations. Senator Arlen Specter objects to the rapid pace with which Judiciary Committee Chair Pat Leahy is advancing the nomination of David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. Senator Specter has requested a second hearing, as he argues Senate Republicans did not have adequate opportunity to prepare for the Hamilton hearing held last week, some 15 days after he was nominated and under somewhat unusual circumstances. Further, as Specter notes, the Senate Judiciary Committee had multiple hearings for John Roberts' nomination to the U.S. Court of Appeals for the D.C. Circuit.

Related Posts (on one page):

  1. Hamilton to Get Second Hearing:
  2. Heat Rises Over Hamilton Nomination:
  3. Hurrying Hamilton?
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Is Geoengineering on the Table?

The AP is reporting that the Obama Administration is considering whether to support geoengineering to combat global climate change.

John Holdren told The Associated Press in his first interview since being confirmed last month that the idea of geoengineering the climate is being discussed. One such extreme option includes shooting pollution particles into the upper atmosphere to reflect the sun's rays. Holdren said such an experimental measure would only be used as a last resort.

"It's got to be looked at," he said. "We don't have the luxury of taking any approach off the table."

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Should law schools offer courses on state constitutional law?

A recent visitor plausibly argued that they should, though few do. Legal scholarship has ignored state constitutional law for decades, though this is gradually changing. My visitor argued that state constitutional law is more important for students and lawyers than federal constitutional law is. What do readers think?

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Getting (Nearly) Naked for God:

Prof. Howard Friedman's Religion Clause -- the best news source I've seen for religion-and-the-law matters (both American and foreign) writes:

Passover begins tonight, and in Israel the dispute continues over how to interpret its Festival of Matzot (Prohibition of Leaven) Law, 5746-1986, (also known as the "Hametz Law"). Last year, a court held that its ban on the public display any leavened product for sale or consumption during Passover did not prevent the sale in a closed place of business of leavened products. (See prior posting.) The Haredi (ultra-Orthodox) community is still distressed over the ruling. This week, according to Arutz Sheva, to protest the interpretation, yeshiva student Aryeh Yerushalmi entered a Tel Aviv grocery store, went to the bread section, and stripped naked (except for a sock over his private parts). He says Israeli law bans performing an indecent act in a public place, but if a grocery store is not "public" for purposes of the Hametz Law, its should not be for the indecent exposure law either. When police arrived at the scene, the student put his clothes back on. A Tel Aviv district court judge put Yerushalmi under house arrest for a week.

For more links -- and more interesting posts on other topics -- go to the post linked to above, or to the blog generally.

36 Comments

Liberty Counsel Corrects Its Press Release:

Mat Staver of Liberty Counsel writes, apropos my post yesterday about the misuse of the word "tyranny":

Eugene,

I corrected the statement in my release yesterday which you have on your blog. The last sentence was meant to say: “The consequences will rest on their shoulders and upon those passive objectors who know what to do but who lack the political courage to do what is right for the common good of the people.” It was done in a rush and after reading it I rewrote it.

Good catch!

Mat Staver

I'm very pleased to see the correction.

Related Posts (on one page):

  1. Liberty Counsel Corrects Its Press Release:
  2. "I Don't Think [That Word] Means What You Think It Means":
59 Comments

The Right To Keep and Bear Arms in Self-Defense and Waiting Periods:

In this post and the next two on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

As I had mentioned, the article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Some jurisdictions require a “cooling-off” period before a gun may be delivered to the purchaser. Others apply this only to handguns. The rationale for such laws is to prevent impulsive killings or suicides by people who are angry or despondent and who might calm down after a few days.

It’s hard to see how handgun-only cooling-off periods will materially reduce danger of impulsive crime or injury. It’s as easy to commit suicide with a shotgun as with a handgun, and for a crime of passion a shotgun will often be equally effective, too. Though it’s not as concealable as a handgun, and thus is worse for daily carrying or for inconspicuously hanging around waiting for passersby to rob, it should be quite sufficient for a crime of passion, where it can be concealed briefly under a coat or in a bag. All-gun waiting periods might in principle be effective, if the buyer is an otherwise law-abiding citizen who wouldn’t just turn to the black market instead. But even that has not been proven: As with so many “reducing danger” arguments, the social science evidence on the effectiveness of cooling-off periods is inconclusive.

At least one state, Maryland, requires an extra background check before a gun can be picked up, and imposes a seven-day waiting period for that reason. The federal background check is generally instant, but can take several days to complete if someone with the same name as the applicant is on the prohibited list.

Finally, Illinois, Massachusetts, New Jersey, New York, and North Carolina apparently require up to a month, or in New York’s case up to six months, for a handgun purchase permit (or, in New Jersey, any firearm purchase permit) to be cleared. Other states require from two to fifteen days.

Are these waiting periods substantial burdens on self-defense (and therefore, under the framework my article proposes, presumptively unconstitutional)? In one way, they are: A person covered by the waiting period is entirely unable to defend himself for days, weeks, or (in New York) months. An attack that requires self-defense can happen during the waiting period just as easily as it can happen during other times.

Moreover, in some situations, the attack may be especially likely during the waiting period: A person’s attempt to buy a gun may be prompted by a specific threat, a threat which could turn into an actual attack in a matter of days or hours. If a woman leaves an abusive husband or boyfriend, who threatens to kill her for leaving, she may need a gun right away, not 10 days later or 6 months later.

On the other hand, it is certainly the case that being disarmed for 0.1 percent of one’s remaining life (that’s what 14 days ends up approximately being, for a person of average age) is less of a burden than being disarmed altogether. And waiting periods have been found to be constitutionally permissible as to other rights.

I can’t offer here a clear answer to whether waiting periods are unconstitutional, but I thought I would at least sketch out the analogy to other rights. The Supreme Court has upheld -- over heated dissent -- a 24-hour waiting period for abortions, justified by much the same cooling-off concerns mentioned above. A short-lived Ninth Circuit decision that recognized a right to assisted suicide said that “reasonable, though short, waiting periods to prevent rash decisions” would be constitutional, and the Oregon assisted suicide statute indeed provides a 15-day waiting period. A waiting period is often required for sterilization, though there might well be a constitutional right to undergo sterilization as part of one’s right to control one’s procreation. In many states it takes from one to five days to get a marriage license, though I know of no cases considering whether this violates the right to marry. On the other hand, there are limits: Even where prisoners and military members are involved -- a context where the government generally has very broad authority -- lower courts have struck down six-month and one-year waiting periods before a soldier or an inmate may marry.

The Supreme Court has also held that a state may require people to register to vote fifty days before the election, for much the same investigatory reasons that are offered for some background-check-based waiting periods. Cities are generally allowed to require that demonstration and parade permit applications be filed some days in advance, though lower courts have suggested the upper bound might be three or four days. Lower courts have also suggested that permit requirements would be impermissible for groups of a few people, who don’t materially implicate the city’s interests in traffic control or adequate policing.

And lower courts have also suggested that even if some substantial advance notice may normally be required for demonstration permits, there has to be a special exception for spontaneous expression occasioned by breaking events. This would suggest that a similar exception might have to be required for handgun permits when the applicant can point to a specific, recently occurring threat -- such as the applicant’s leaving an abusive boyfriend who threatened to kill her if she left. (Cf., e.g., Fla. Stat. Ann. § 790.33(2)(d)(6) (West 2007) (exempting from the waiting period, which would normally be up to 3 days, “[a]ny individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement”); Minn. Stat. Ann. § 624.7132 subdiv. 4 (West 2003) (providing that “the chief of police or sheriff may waive all or a portion of the five business day waiting period in writing if the chief of police or sheriff finds that the transferee requires access to a pistol or semiautomatic military-style assault weapon because of a threat to the life of the transferee or of any member of the household of the transferee”); Ohio Rev. Code Ann. § 2923.1213 (providing for temporary emergency license to carry a concealed weapon when the applicant provides a sworn statement “that the [applicant] has reasonable cause to fear a criminal attack upon the person or a member of the person’s family, such as would justify a prudent person in going armed,” or other evidence of such a threat); cf. 18 U.S.C. § 922(s)(1)(B) (exempting transferees from the waiting period for gun purchases if they stated that they “require[ ] access to a handgun because of a threat to the life of the transferee or any member of the households of the transferee”; this was in effect during the pre-instant-background check era, see 18 U.S.C. § 922(t)).)

These other constitutional rights are not perfect analogies. A three-day delay in voting, marrying, or demonstrating won’t leave you unprotected against a deadly attack. Conversely, erroneously authorizing someone to vote when he’s a convicted felon is less likely to cause serious harm than erroneously authorizing someone to buy a gun when he’s a convicted felon but the instant background check has yielded an inconclusive result. Nonetheless, this catalog of decisions at least suggests that (1) waiting periods on the exercise of constitutional rights need not always be seen as unconstitutional, and (2) courts are and should be willing to decide which waiting periods are excessive.

84 Comments

Muslim Policewoman Has No Right To Wear a Religious Headscarf on the Job,

the U.S. Court of Appeals for the Third Circuit just held in Webb v. City of Philadelphia (some paragraph breaks added):

[Kimberlie] Webb requested permission from her commanding officer to wear a headscarf while in uniform and on duty. The headscarf (a khimar or hijaab) is a traditional headcovering worn by Muslim women. Webb’s headscarf would cover neither her face nor her ears, but would cover her head and the back of her neck. Her request was denied in view of Philadelphia Police Department Directive 78, the authoritative memorandum which prescribes the approved Philadelphia police uniforms and equipment. Nothing in Directive 78 authorizes the wearing of religious symbols or garb as part of the uniform....

Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion. “Religion” is defined as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” To establish a prima facie case of religious discrimination [on this "religious accommodation" theory -EV], the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.

Once all factors are established, the burden shifts to the employer to show either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.... An accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer. Both economic and non-economic costs can pose an undue hardship upon employers; the latter category includes, for example, violations of the seniority provision of a collective bargaining agreement and the threat of possible criminal sanctions.

In the City’s view, at stake is the police department’s impartiality, or more precisely, the perception of its impartiality by citizens of all races and religions whom the police are charged to serve and protect. If not for the strict enforcement of Directive 78, the City contends, the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department. In the words of Police Commissioner Sylvester Johnson, uniformity “encourages the subordination of personal preferences in favor of the overall policing mission” and conveys “a sense of authority and competence to other officers inside the Department, as well as to the general public.”

Commissioner Johnson identified and articulated the police department’s religious neutrality (or the appearance of neutrality) as vital in both dealing with the public and working together cooperatively. “In sum, in my professional judgment and experience, it is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” Commissioner Johnson’s testimony was not contradicted or challenged by Webb at any stage in the proceedings....

As a para-military entity, the Philadelphia Police Department requires “a disciplined rank and file for efficient conduct of its affairs.” Commissioner Johnson’s thorough and uncontradicted reasons for refusing accommodations are sufficient to meet the more than de minimis cost of an undue burden.

For more details, including how the court dealt with various relevant precedents, both from the Supreme Court and from other circuits that had confronted similar problems, have a look at the opinion, which is pretty readable and not too long.

Thanks to Joel Sogol for the pointer.

87 Comments

Tuesday, April 7, 2009

Tushnet on OLC & D.C. Representation Bill:

Mark Tushnet thinks the flap over the Attorney General's handling of the OLC opinion on proposed legislation to grant D.C. voting rights is much ado about nothing. Whereas some commentators may have overstated the case, I think Tushnet may be understating it.

Based on what we know, OLC issued a signed opinion reiterating its prior conclusion that the pending legislation is unconstitutional. Presumably this opinion was in response to a request from the Attorney General or someone else. Then, according to most press accounts, Holder sought other opinions, albeit on a slightly different question. Tushnet is correct that the AG may seek advice from whomever he likes, but it is certainly the case that OLC has traditionally been charged with researching these sorts of questions. Further, based upon press reports, and the opinions of former OLC attorneys (e.g. Ed Whelan and John McGinnis), Holder's actions were contrary to established procedures and undermined OLC's traditional role within the Department. Of course, these conclusions are based upon news reports, which may themselves be inaccurate. Thus, I've posted every story I've seen that sheds light on what occurred in this circumstance, and will continue to do so, and repeatedly noted that my conclusions are based upon what has been reported in the press or detailed by OLC alums.

According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk. I disagree. If OLC is to perform its historic role, it needs time to examine complex legal issues. Thus, it must begin to analyze potentially problematic legislation well before it is enacted. And, in fact, it is quite common for OLC to evaluate proposed legislation before it is enacted. By the same token, if the AG is inclined to overrule an OLC opinion — and if, as Tushnet notes, it is "good practice" for the AG to issue an opinion if he is disregarding or overruling OLC's conclusions — then he better get cracking well before legislation passes both houses of Congress, particularly if we expect such a memo to substantively address the relevant legal issues. In this case, it appears the AG did initiate such an examination, and sought to contain the damage of an unfavorable OLC opinion in what OLC veterans have characterized as a violation of established procedures. Again, this is what the press reports suggest, and Holder's actions here are characterized by former OLC attorneys as untraditional. If Holder's actions were different from what has been reported, then he may have done nothing improper.

I certainly agree with Tushnet that the President is free to disregard the AG's (and OLC's) advice, and that the rejection of an OLC memorandum does not, in itself, constitute a violation of the President's constitutional obligations. I also agree that the President can (and should) give some degree of deference to Congress on close constitutional questions. In this regard, I have little problem with the Dellinger memorandum. But I don't think this is what is at issue here. The question is whether Holder acted to undermine or overrule a signed OLC memorandum in an improper fashion for political reasons. Hence, the primary charge is that Holder is "politicizing the Justice Department," not that he is inducing the President to violate his constitutional obligations. I should also note that this episode resembles Holder's conduct with regard to the Rich and FALN pardons, in which he allegedly bypassed traditional procedures in order to smooth the way for a desired outcome, far more than it does the controversy over OLC's national security memoranda. Indeed, when John Ashcroft was Attorney General, he accepted OLC conclusions that went against administration policy, and backed OLC against the White House. (See, e.g., Angler by Barton Gellman.)

Let me also note another point on which Tushnet and I are in total agreement: There is no implication that OLC did anything untoward or improper in this case. Quite to the contrary, OLC appears to have operated in accord with its traditional obligations. Further, as I have said before, I have no reason to believe that the outcome within OLC would have been any different had Dawn Johnsen been at the helm of OLC.

UPDATE: Mark Tushnet responds in the comments below, and Ed Whelan adds his thoughts on Bench Memos.

For myself, let me just note that the April 1 Post story cites the Justice Department for the proposition that Holder has, in fact, rejected the OLC opinion, a point reiterated (again citing Holder's spokesperson) in the April 2 story. So, unless the Post is misrepresenting the Justice Department, the OLC memo has, in fact, been rejected. Further, the April 3 story reports "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill." So, whatever else may or may not have occurred, it seems fairly clear at this point that Holder a) rejected the conclusion adopted in a signed OLC memo, and b) has not, and has no plans to, issue an opinion explaining the basis for his decision.

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Does a Move To Greater Internationalism Jeopardize American Free Speech Values?

Well, let's listen to Yale Law School Dean Harold Koh, now nominated to be the Legal Advisor to the State Department, in his On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003):

By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, libel, commercial speech, and publication of national security information. But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

Good to hear that American free speech tradition isn't "too deeply unsettling to world order." But wait -- check out the footnote following this paragraph:

See generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation discussed infra Part III.C.

And what is this "transnationalist approach" that can help "moderate these conflicts" caused by American constitutional protection for "hate speech ... disseminated over the Internet"? Here are the opening paragraphs of the discussion of "the transnationalist approach" is Part III.C:

What is transnational legal process? While most legal scholars agree that most nations obey most rules of international law most of the time, they disagree dramatically as to why they do so. As I have explained elsewhere, I believe that nations obey international law for a variety of reasons: power, self-interest, liberal theories, communitarian theories, and what I call “legal process” theories. While all of these approaches contribute to compliance with international law, the most overlooked determinant of compliance is what I call “vertical process”: when international law norms are internalized into domestic legal systems through a variety of legal, political, and social channels and obeyed as domestic law. In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms.

Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors -- namely, nation states, corporations, international organizations, and nongovernmental organizations -- interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.

In my view, “transnational legal process” is not simply an academic explanation of why nations do or do not comply with international law, but, more fundamentally, a bridging exercise between the worlds of international legal theory and practice. My time in government confirmed what I had suspected as a professor -- that too often, in the world of policymaking, those with ideas have no influence, while those with influence have no ideas. Decisionmakers react to crises, often without any theory of what they are trying to accomplish, and without time to consult academic literature, which, even when consulted, turns out to be so abstract and impenetrable that it cannot be applied to the problem at hand. On the other hand, activists too often agitate without a clear strategy regarding what pressure points they are trying to push or why they are trying to push them. Scholars have ideas, but often lack practical understanding of how to make them useful to either decisionmakers or activists.

And so it is with American exceptionalism. Like so many aspects of international relations, this phenomenon has generated a tragic triangle: Decisionmakers promote policy without theory; activists implement tactics without strategy; and scholars generate ideas without influence. If transnational legal process is to bridge this triangle, how can we use that concept to press our government to preserve its capacity for positive exceptionalism by avoiding the most negative features of American exceptionalism? Let me illustrate my approach with respect to three examples from the September 11 context: first, America and the global justice system; second, the rights of 9/11 detainees; and third, America's use of force in Iraq....

Maybe I'm missing something -- Prof. Koh's discussion of just how the Court can "moderate ... conflicts" between First Amendment law and foreign countries that disapprove of American free speech on the Internet is rather vague here. But it sounds to me quite a bit like the predictions that Prof. Peter Spiro, another internationalist legal scholar, made about how international norms could reduce the scope of American constitutional rights: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "As transnational society develops a common rights culture, one in which the disaggregated United States enjoys a voice, the supremacy of international rights may be normatively sustainable. In the short term, this argues for the relevance of international norms in domestic constitutional interpretation. In the long run, it may point to the Constitution's more complete subordination."

In any case, I thought I'd note this, so you folks can read it and decide for yourselves. Thanks to Ed Whelan (National Review Online) for the pointer.

49 Comments

Sovereign Immunity and the Surveillance Statutes: Yesterday the Justice Department filed a brief in Jewel v. NSA arguing that the statutory claims against the government for the NSA warrantless surveillance program cannot proceed because the causes of action under the Wiretap Act, the Stored Communications Act, and FISA are barred by the doctrine of sovereign immunity:
[I]n the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States. See 50 U.S.C. § 1810.
  This strikes me as a terrible argument. 18 U.S.C. § 2712 -- titled "Civil actions against the United States" -- is about as clear as you can get on this issue, it seems to me. It states:
Any person who is aggrieved by any willful violation of this chapter [the Stored Communications Act -- Ed.] or of chapter 119 of this title [the Wiretap Act -- Ed.] or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.
  (emphasis added)

  I see no limitations in that section to "a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute itself says "any willful violation," and it expressly covers all of Chapter 121 (the SCA), all of Chapter 119 (the Wiretap Act), and those explicit sections of FISA.

  Maybe I'm just missing something -- always a possibility. But it seems to me that the government's argument is that the court should read "any willful violation" to mean "a willful violation where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute just doesn't say that.
40 Comments

Althouse v. Frank:

Blogress diva Ann Althouse defends Justice Scalia from Rep. Barney Frank. Her essay begins:

Rep. Barney Frank (D-Mass.) says that U.S. Supreme Court Justice Antonin Scalia is a "homophobe" who "makes it very clear that he's angry, frankly, about the existence of gay people." Frank points to Scalia's dissenting opinion in Lawrence vs. Texas—a case that struck down a statute criminalizing homosexual sodomy—and accuses the justice of thinking that "it's a good idea for two consenting adults who happen to be gay to be locked up because he is so disapproving of gay people."

But Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down.

[And some think Scalia has a sharp pen . . . ]

216 Comments

"I Don't Think [That Word] Means What You Think It Means":

From Liberty Counsel:

The Vermont Legislature voted to override Governor Jim Douglas’ veto of a bill that permits same-sex couples to marry in Vermont. The state Senate voted 23-5 to override the veto and the House of Representatives voted 100-49 to override. Two-thirds of the Senate and the House votes were necessary.

Vermont was the first state to adopt same-sex civil unions in 2000 and is the first state to legalize same-sex marriage through the legislature.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “ ... By redefining marriage, the Vermont legislature removed the cornerstone of society and the foundation of government. The consequences will rest on their shoulders and upon those passive objectors who know what to do but lack the courage to stand against this form of tyranny.”

So a democratically elected legislature votes for a law that treats same-sex marriage the same as opposite-sex marriage. The law doesn't restrict the freedom of opposite-sex couples; it just gives same-sex couples the same benefits. Perhaps the law is unwise; perhaps it undermines important social institutions; perhaps it will eventually lead to bad things. I doubt that, but such arguments are at least possible. But "tyranny"? Or has "tyranny" just come to mean "any law I dislike, even if it doesn't restrict anyone's liberty, usurp any power that should belong to democratically elected bodies, or discriminate against anyone"?

UPDATE: Liberty Counsel posts a correction.

Related Posts (on one page):

  1. Liberty Counsel Corrects Its Press Release:
  2. "I Don't Think [That Word] Means What You Think It Means":
91 Comments

VC March Madness Champion:

Congratulations to Dan Huitink, the winner of this year's VC March Madness competition. Dan narrowly edged out James Meuret by a mere 2 points (311-309). James actually picked more games correctly but Dan must've picked some key upsets. Both predicted Arizona into the Sweet 16, but Dan picked Dayton's first-round upset which was just enough to get him over the top.

To Dan goes a Greenbag Anthony Kennedy bobblehead and a Volokh Conspiracy t-shirt. So Dan, get in touch and send me your address and shirt size.

4 Comments

The Religious Left at Work: God Hates Secret Ballots:

I've just received seen an e-mail from the AFL-CIO, sent on behalf of Catholic Scholars for Worker Justice. The e-mail urges that "a scholar who supports Catholic social doctrine and its teachings on workers rights", to sign an on-line petition for the (misnamed) Employee Free Choice Act.

The e-mail says that EFCA may come up for a Senate vote before the Memorial Day recess. It also notes that "The Catholic weekly, America magazine, called EFCA the most important legislation in the past 72 years." America, which is run by the Jesuits, has long been very far to the left of most of the Catholic press in the United States, and of American Catholics. The right of workers to unionize is well-established in Catholic teaching. For example, in the 1891 encyclical Rerum Novarum, Pope Leo XIII stated:

The most important of all [civic organizations] are workingmen's unions, for these virtually include all the rest. History attests what excellent results were brought about by the artificers' guilds of olden times. They were the means of affording not only many advantages to the workmen, but in no small degree of promoting the advancement of art, as numerous monuments remain to bear witness. Such unions should be suited to the requirements of this our age - an age of wider education, of different habits, and of far more numerous requirements in daily life. It is gratifying to know that there are actually in existence not a few associations of this nature, consisting either of workmen alone, or of workmen and employers together, but it were greatly to be desired that they should become more numerous and more efficient. We have spoken of them more than once, yet it will be well to explain here how notably they are needed, to show that they exist of their own right, and what should be their organization and their mode of action.
Accordingly, laws which prohibit unions are a violation of natural law:
For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them; and, if it forbid its citizens to form associations, it contradicts the very principle of its own existence, for both they and it exist in virtue of the like principle, namely, the natural tendency of man to dwell in society.
I am unaware of anything in this encyclical, or anything else in formal Catholic teaching (a category which includes Papal encyclicals but does not include editorials in Catholic magazines) which says that workers should be forced to join (or pay dues to) a union which they do not wish to join, or which says that getting rid of secret ballot elections for unionization is a positive social good. Yes, I know that EFCA technically allows for secret ballots, but the purpose of EFCA's change in the "card check" rule is to eliminate both elections and secret ballots.

93 Comments

Good Advice for Commenters: I usually try to enforce our comment policy in part through warnings. If a commenter is crossing the line and being uncivil but I think there is hope that he'll change his tune, I try to respond by pointing out the uncivil comment and reminding the commenter that comments must be civil. A while back, Anon321 chimed in with some good advice about how to respond to such warnings:
  As should be clear to most commenters by now, the surest way to get banned is, after being warned, to quarrel with the warning, accuse the blogger of improper motives, whine about unequal standards, and generally try to turn the discussion towards the subject of banning.  If you get warned and don't think you deserved to, just accept the fact that you're playing in someone else's sandbox, say you're sorry, and/or let it go.
  That's good advice. After blogging for more than five years, and moderating comment threads for much of that time, I've developed a sense that there are two basic kinds of commenters who might be uncivil. The first is the commenter who recognizes the value of civility but sometimes gets excited or can be provoked. The second is the person who thinks civility is basically silly, and that we're all best off if we can speak as bluntly and directly as possible without mincing words. To the former person, a civility warning is a reminder to "play nice." To the latter, a warning is cover for censorship, evasion, and hiding from the deep truths that only harsh words voiced bravely by that commenter can communicate.

  My sense is that a warning tends to separate these two groups. The former group "gets it," and tries to comply. The latter group plays victim and tries to turn the warning into a debate on the precise standards for commenting and the fairness of the process. The trick is that the latter type of commenter is not someone we'd like to have commenting here. There a lot of blogs out there, and there are certainly places for such people to comment. But it's not our style, and therefore not the style of the small corner of the Internet that we're trying to host. As a result, playing the victim and trying to make the issue the banning (rather than the incivility) is usually a clear sign that the commenter is in the latter group: It ends up making it pretty likely that such a commenter will then be banned.

  Of course, a number of my co-bloggers have reacted to these problems by just giving up on comment threads entirely. I can't say I blame them: editing comments and responding to the objections of commenters about the editing process is really unhappy work. But I haven't entirely reached that point yet, so I thought I would flag anon321's good advice about how to respond (and how not to respond) if a blogger warns you to be civil.
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Constitutional Obligations and Signing Statements: In the wake of the controversy over Eric Holder's apparent decision to support the DC voting rights bill despite its likely constitutional problems, a lot of conservatives are advocating a position of strict constitutional duty: If the executive branch believes that part of a bill is unconstitutional, the executive must vote against the legislation. To do otherwise is to subvert the constitution and violate the constitutional oath.

  If you identify as a conservative and you feel that way, I have a question: Where were you during the Bush Administration? President Bush repeatedly signed legislation accompanied by signing statements indicating that the President believed that many parts of the laws were unconstitutional. As I understand it, the Bush Administration's approach was to sign the legislation despite the constitutional defects, with the stated intention to not follow the parts believed to be unconstitutional. To conservatives who think Holder's apparent support for the DC voting rights law subverts the constitution, I'm curious, what did you think of the former President Bush's regular practice of approving legislation he thought was unconstitutional?

  UPDATE: Some commenters argue that the key difference is severability: It's okay to sign unconstitutional legislation if the unconstitutional parts are severable, but a violation of the constitution to sign legislation if the constitutional parts are not severable. It's an interesting idea, although I suppose it means that the arguments are much more technical than I had thought. Is that's the objection, then the DC Voting Rights Bill can simply be joined with another bill that is constitutionally uncontroversial.
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Wow: From the BLT, a remarkable development relating to the prosecution of Senator Stevens:
  Judge Emmet Sullivan dismissed the case against former Alaskan Sen. Ted Stevens with prejudice -- but the case is hardly over for the Justice Department.
  Dissatisfied with the pace of DOJ's internal investigation into the bungled prosecution, Sullivan said today that he would commence criminal contempt proceedings against the original trial team and their supervisor, and appoint a non-government lawyer to prosecute the case.
  . . . The judge said that "the interest of justice" he would appoint Henry Schuelke III, name partner at Janis, Schuelke & Wechsler, to investigate and prosecute team for violating court orders and potentially obstructing justice.
  Wow. There's this, too:
  The Judge said Attorney General Eric Holder Jr. should train new and veteran prosecutors on the rules of evidence. He further suggested that President Barack Obama obtain the commitment of prospective U.S. attorneys to abide by these rules, and that the Senate Judiciary Committee push nominees on this point during confirmation hearings.
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Twelfth Night Mock Trial: Tony Mauro has a very entertaining write-up of a "mock trial" at the Shakespeare Theatre featuring three Supreme Court justices (Ginsburg, Breyer, and Alito) and five other federal judges, sitting as the "Supreme Court of Illyria," hearing argument in the hypothetical case of "Malvolio's Revenge" from Shakespeare's Twelfth Night. There's lots of good stuff in Mauro's write-up. Perhaps the best line was Alito's, from the Justices' explanations of their votes after the argument ended:
When it was Breyer's turn to explain his vote for Olivia, he said flatly that he had voted that way because "I don't like Malvolio." Which gave Alito an opening for the last laugh. "I always wondered what 'Active Liberty' meant," Alito said wryly, a mild jab at Breyer's 2005 book by that name.
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And now, D.C.:

It's turning out to be a banner day for gay marriage. The city council in Washington, D.C. has just voted 12-0 to recognize gay marriages performed in other states. The city previously recognized domestic partnerships, but the status of out-of-state SSMs had been unclear.

There's no doubt where this is headed. According to the Washington Post:

Council member David A. Catania (I-At Large), who is also gay, predicted it was only a matter of time before the Council also takes up a bill to legalize gay marriage in the District. "It's no secret that I have been working on legislation that would take us further," he said. "This is the march toward human rights and equality. This is not the march toward special rights. This is the equal march and that march is coming here."

There are a couple of important things to keep in mind, however. First, D.C. council law is subject to override by Congress, which could place the Democrats in an awkward position. Second, recognition of gay marriages in D.C. would be subject to a ballot override.

Related Posts (on one page):

  1. And now, D.C.:
  2. Gay marriage in D.C. next year?
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Gay marriage, by legislature, in Vermont:

Nine years after it became the first state to approve civil unions, Vermont becomes the first state to enact gay marriage legislatively. With just one vote to spare, the Vermont state legislature has overridden the governor's veto of a gay marriage bill. The state house voted 100-49 and the state senate voted 23-5. You can find a roll call for the override vote in the state house here. I previously wrote about the significance of this development here.

The text of the house bill is here. It reads, in part:

Sec. 3. 15 V.S.A. § 8 is amended to read:

§ 8. MARRIAGE DEFINITION

Marriage is the legally recognized union of one man and one woman two people. Gender-specific terms relating to the marital relationship or familial relationships, including without limitation “spouse,” “family,” “marriage,” “immediate family,” “dependent,” “next of kin,” “bride,” “groom,” “husband,” “wife,” “widow,” and “widower,” shall be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.

Italics indicate added languague.

Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago. Congratulations to the Vermont Freedom to Marry Task Force and everyone in the state who spent the last nine years organizing, raising money, and lobbying legislators first to defend the state's civil unions and then to push for full marriage.

The marriages start on September 1.

Related Posts (on one page):

  1. Gay marriage, by legislature, in Vermont:
  2. SSM advances in Vermont legislature:
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Challenging the Constitutionality of the D.C. Representation Bill:

Some defenders of the proposed legislation to grant the District of Columbia voting representation in Congress argue that whether the statute is constitutional is a question that should be left to the courts. I find this problematic on multiple grounds. First, all three branches have an obligation to ensure that their actions are constitutional -- all take an oath to uphold the constitution. Second, not all federal government actions are amenable to judicial resolution (see, e.g., the post below). Some questions about the constitutionality of executive or legislative action can only be resolved by the political branches. Thus, if the executive does not make an independent effort to ensure that it is acting in accord with the constitution, there will be instances in which there is no assurance that the Executive is, in fact, acting constitutionally, because there is no judicial oversight.

While it may be appropriate for the executive branch to show some degree of deference to the independent determination of the legislature about a bill's constitutionality -- as some Founders did -- the Executive still has an independent obligation to assess the constitutionality of proposed legislation, particularly where (as here) the Executive may be the last word on proposed legislation's constitutionality. This does not mean that the President is obligated to follow OLC's lead, but it does mean the President does have an obligation to consider the constitutionality of legislation before he signs it (and, in my view, the President has an obligation to veto legislation he believes to be unconstitutional -- an obligation quite a few Presidents have violated).

In the present case, it is unclear whether anyone would have standing to challenge the constitutionality of the proposed legislation. In Raines v. Byrd, the Supreme Court held that members of Congress did not have standing to challenge the constitutionality of legislation creating the line-item veto, even though the legislation had the effect of lessening their political influence. I think Raines is potentially distinguishible, as there is a more direct "vote dilution" claim here, but it's anything but an open and shut case.

Calvin Massey is more optimistic that either House members, or perhaps a state, would have standing to challenge the bill. He writes:

There are several possible entities with standing. After Massachusetts v. EPA states have standing, as parens patriae, to secure the benefits of federal union to their citizens. One of those benefits is a Congress composed of representatives of the states, and only the states. A Congress that includes representatives from the federal district is not such a Congress. Any state has standing to challenge the validity of the act. It is also possible that members of the House have standing to challenge the validity of the act. In Raines v. Byrd members of Congress lacked standing to challenge the Line Item Veto act on the ground that their votes were rendered ineffective, because their votes "were given full effect. They simply lost that vote." But in this case, a House member's vote is not given full effect, because it is diluted by the vote of an imposter -- a "member" who is not entitled to be a member.
These are reasonable arguments. (I particularly like the reliance on Mass v. EPA.) Still, I wonder whether the Court would insist that a party asserting standing identify a specific instance in which the diultion of their vote had an influence on specific legislation, much as the Supreme Court waited for a plaintiff to identify a specific vetoed item before hearing a challenge to the line-item veto act. Perhaps we'll see.

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Who Exercises Sovereignty Over Taiwan?

Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion concerning efforts by Taiwanese people to obtain internationally recognized passports. Judge Brown's opinion for the court in United States v. Lin begins:

America and China’s tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population’s day-to-day lives. This pervasive ambiguity has driven Appellants to try to concretely define their national identity and personal rights.

Initially, the individual Appellants sought modest relief: they wanted passports. More specifically, they wanted internationally recognized passports. Now, however, Appellants seek much more. They want to be U.S. nationals with all related rights and privileges, including U.S. passports. Determining Appellants’ nationality would require us to trespass into a controversial area of U.S. foreign policy in order to resolve a question the Executive Branch intentionally left unanswered for over sixty years: who exercises sovereignty over Taiwan. This we cannot do. Because the political question doctrine bars consideration of Appellants’ claims, the district court had no choice but to dismiss Appellants’ complaint for lack of subject matter jurisdiction. Accordingly, we affirm.

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Civil War Passover Stories:

The Fall 2008 issue of the American Jewish Historical Society's Heritage magazine has some great stories. Here's one:

More problematic was the situation of Union soldiers who, unable to hold their own Seders, were forced to "fraternize" with local Southern Jews. Myer Levy of Philadelphia, for example, was in a Virginia town one Passover late in the war when he saw a young boy sitting on his front steps eating a piece of matzo.... When Levy asked the boy for a piece, the child fled indoors, shouting at the top of his lungs, "Mother, there's a damn Yankee Jew outside." The boy's mother invited Levy to Seder that night.


Justice Defends Wiretaps, Invokes State Secrets (Again):

From the San Francisco Chronicle:

The Obama administration is again invoking government secrecy in defending the Bush administration's wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

Disclosure of the information sought by the customers, "which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security," Justice Department lawyers said in papers filed Friday in San Francisco.

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."

As Glenn Greenwald notes here, the Justice Department also asserted a broad claim of sovereign immunity in seeking to dismiss the suit.

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Soliciting Feedback on My Nonlethal Self-Defense, Stun Guns, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion:

I'm planning on posting excerpts from this new article of mine next week or the week after that, and I'll also link to a PDF version. It's forthcoming in the Stanford Law Review in several months, and I wanted to get as much feedback as possible.

But before that, I thought I might ask for a bit of feedback from a narrow class of people: If you read the article as a law review editor a few weeks ago, when I was circulating it for submission, and feel you can pass along any reactions you had, I'd very much like to hear them.

My sense is that there's a lot of evaluative work that's done by articles editors but that's then lost as a source of feedback to authors. That certainly makes sense in the initial submission process; explaining to authors why an article was rejected, or coupling an offer with an explanation of the article's weaknesses, can take up a lot of time and cause a lot of friction. But I thought that if I expressly asked, perhaps some people could feel comfortable passing along their reactions, and those reactions could be helpful to me in improving my piece. I can think of all sorts of eminently legitimate reasons why a journal might not have been interested in the article, but my goal is to find flaws or unnecessary limitations that I haven't thought of myself, but that others have noticed.

Naturally, please don't say anything if you feel that this would compromise internal journal confidences, and if you'd prefer to respond anonymously (to conceal either your name or the name of the journal) or privately to my volokh at law.ucla.edu address, that would be just fine. But I don't see any ethical problems with passing along -- especially anonymously -- your own individual reactions, or the reactions of colleagues who agree to include them. And because this message is posted publicly rather than e-mailed directly to a journal, I don't think you need to worry about setting a work-creating precedent that you'd have to adhere to for dozens of future articles; even if others start posting such requests, you can respond when and only when you are so inclined.

Finally, just to be extra clear: As you might gather, I'm delighted by the offers that I received for the piece, and of course I'm thrilled to be publishing the article where I'm publishing it. And as I noted, I entirely understand why other journals weren't interested in the piece, both for general reasons (there's always a mix of reactions from different people), and for specific ones having to do with this article. My goal is very simple: I just want as much helpful feedback as possible. Many thanks!

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The Right To Keep and Bear Arms in Self-Defense and Bans on Carrying Guns Outside the Home:

I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible. This tradition does indeed go back to 1813 and the following decades, at least in some Southern states, and by the end of the 19th century it had become a pretty broadly accepted proposition. A smattering of state court cases has struck down such bans, but nearly all courts have upheld them, and many state constitutions expressly authorize them.

The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open carrying as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms. Ten state constitutions strongly imply this, by protecting “bear[ing] arms” but expressly excluding “carrying concealed weapons.” (See Colo. Const. art. II, § 13; Idaho Const. art. I, § 11; Ky. Const. § 1; La. Const. art. I, § 11; Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. II, § 12; N.M. Const. art. II, § 6; N.C. Const. art. I, § 30; Okla. Const. art. II, § 26; see also Tenn. Const. art. I, § 26 and Tex. Const. art. I, § 23, authorizing the legislature to “regulate the wearing of arms with a view to prevent crime,” which suggests that “bear[ing] arms” includes “wearing” them, which is to say carrying them in public, though subject to regulations.)

Other constitutions don’t mention carrying as such, but they do use the word “bear.” And many courts applying state constitutional provisions have held or suggested that carrying in public is generally constitutionally protected, at least outside some special places such as businesses that serve liquor, churches, or polling places, though some courts have disagreed.

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GOP Threat to Link Memo Release to Johnsen/Koh Filibuster?: Scott Horton reports, via Jack Balkin:
  Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.
  I don't know if this is true. But if it is, it makes me eager to see those memos.

  UPDATE: I have closed the comment thread, as the initial comments suggest that this topic is mostly triggering thoughtless ideological sniping that isn't worth anyone's time to read.
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Monday, April 6, 2009

Patri Friedman on "Seasteading" and the Supposed Failure of Libertarian Political Activism:

In the current Cato Unbound, Patri Friedman (grandson of Milton Friedman), argues that libertarians have failed in their efforts to promote a libertarian society through political activism, in large part because the system is stacked in favor of statism. Instead of seeking to reform existing states, he claims that libertarians should establish new states of their own. Such efforts have failed miserably in the past, but Friedman argues that the new technology of "seasteading" (establishing large, habitable platforms in the ocean) might make this strategy more viable. At the very least he claims that it's better than what he considers the hopeless task of trying to promote libertarianism within existing states:

I deeply yearn to live in an actual free society, not just to imagine a theoretical future utopia or achieve small incremental gains in freedom. For many years, I enthusiastically advocated for liberty under the vague assumption that advocacy would help our cause. However, I recently began trying to create free societies as my full-time job, and this has given me a dramatic perspective shift from my days of armchair philosophizing. My new perspective is that the advocacy approach which many libertarian individuals, groups, and think tanks follow (including me sometimes, sadly) is an utter waste of time.

Argument has refined our principles, and academic research has enlarged our understanding, but they have gotten us no closer to an actual libertarian state. Our debating springs not from calculated strategy, but from an intuitive “folk activism”: an instinct to seek political change through personal interaction, born in our hunter-gatherer days when all politics was personal. In the modern world, however, bad policies are the result of human action, not human design. To change them we must understand how they emerge from human interaction, and then alter the web of incentives that drives behavior. Attempts to directly influence people or ideas without changing incentives, such as the U.S. Libertarian Party, the Ron Paul campaign, and academic research, are thus useless for achieving real-world liberty.

I question Friedman's key assumption that promoting libertarianism in existing societies through research and activism is "an utter waste of time." It certainly has not been as effective as he and I would like. But it has nonetheless led to important victories for freedom. For example, as I discuss in my recent debate with Sandy Levinson, there were important reductions in the size and scope of government in the 1980s and 1990s, many of them traceable in part to advocacy by libertarian scholars and movements. Even more impressive reductions in government power were achieved in nations such as Ireland and New Zealand during the same period.

Ironically, Patri Friedman's grandfather Milton Friedman was one of the best examples of the impact of libertarian advocacy on policy. Among other things, Milton Friedman's efforts, combined with those of other libertarians, played a key role in ending the draft, one of the greatest infringements on individual liberty in modern American history. Friedman also helped influence many governments around the world in the direction of adopting relatively more free market economic policies.

To say this is in no way denies that we are still very far from achieving a truly libertarian society. And at the moment, we are obviously moving in the wrong direction. It does, however, suggest that libertarian political action can be effective, even in spite of the many ways in which the system is biased against it.

Does that mean that libertarians should reject Patri Friedman's "seasteading" proposal out of hand? I don't think so. If the technology is viable, the idea may deserve support. Although we can and should work to reform existing governments, Friedman is right to point out that we need more competition in the market for government. If seasteading begins to attract productive citizens away from existing states, it might pressure the latter to allow greater freedom.

A countervailing factor is that a libertarian "seasteading" state might not be as free of the power of existing governments as Friedman supposes. He claims that the latter cannot be reformed in a libertarian direction because of poor incentive structures. But those same perverse incentives might lead them to use force to eliminate seasteading projects - especially if the seasteads appear to be potential rivals. Existing states might suppress seasteads if the latter start attracting too many productive citizens and investment capital away from them. The Law of the Sea Treaty defines the ocean as a "common heritage of mankind" that cannot be claimed by any one nation or group. Existing governments or the United Nations could easily use this clause of the treaty to justify suppressing attempts to establish a libertarian state on the high seas. Friedman and his Seasteading Institute try to answer this objection on their website.They make some good points, but I am not entirely convinced. And they themselves concede that seasteads will be extremely vulnerable to naval attack, especially in their earlier stages.

In sum, Patri Friedman understates the utility of political action within existing states and perhaps underrates the likelihood that those same existing states might foil his attempt to establish a new one. But it is too early to conclude that his proposal is unworthy of support. I, for one, would like to see more analysis and evidence.

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The Great Repression: Interesting commentary on the cause of the current economic situation -- and why it may continue for longer than it should -- from my colleague Larry Cunningham.
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Holder's Obligations and the DC Voting Rights Bill: A lot of conservatives are criticizing AG Eric Holder for apparently taking the position that the DC voting rights law is constitutional when OLC thinks it is not. There's an angle to the story that I haven't seen addressed, though, at least on the right: Does Holder have an obligation to oppose the bill if he thinks its passage is the best step to a constitutional amendment to add DC voting rights?

  Here's my thinking. We know that AG Holder favors voting rights for DC as a matter of policy. Let's also assume that he knows that the bill is probably going to be struck down. If that's right, Holder may logically believe that the best way to get a constitutional amendment passed to secure DC voting rights would be to have this bill passed into law and then struck down. If the bill is passed, and the Supreme Court strikes it down, the publicity and focus of a Supreme Court case may go a long way towards gathering political support for a constitutional amendment. Rick Hasen recently made this argument in Slate:
Rejection by the court would put the issue on the front burner. Obama could then push for quick passage of a constitutional amendment in Congress and the states. He could remind people that many of our most important advances to voting rights have come through constitutional amendment, including enfranchisement of African-Americans, women, 18-year-olds, D.C. residents (in presidential elections), and those too poor to pay a poll tax to vote in federal elections.
  If that's what Holder is doing, then it seems to me that the debate over his decision is really about the somewhat academic question of the nature of an Attorney General's constitutional obligations, rather than the question of whether Holder is "politicizing" DOJ.
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McGinnis on Holder's Treatment of OLC:

Over at Executive Watch (a truly excellent blog sponsored by the Duke Law Program in Public Law), former Deputy AAG John McGinnis comments on Attorney General Eric Holder's treatment of OLC over the constitutionality of legislation to grant D.C. representation in the House of Representatives.

If the Attorney General believed that this opinion was wrong, he could overrule it. Attorneys General previously have themselves rendered legal opinions. An opinion would provide a measure of accountability because General Holder would have to sign his name to a legal document that purported to show how to get around the Constitution’s clear requirement. Indeed, the Obama administration has argued that increasing the transparency of the legal process within the executive branch will increase respect for the rule of law. What better testament to that transparency than to allow us to compare the reasoning of the Attorney General with that of his own legal counsel?

Instead, the Attorney General asked the office of Solicitor General at a time when there was no confirmed Solicitor General whether that office would be willing to defend the statute, if passed. The Solicitor General’s office has a long history of defending legislation if there is any credible basis for doing so. But it never opines on the constitutionality of pending legislation, because the question for the President in signing a bill is not whether the legislation might be defended by some argument in Court but whether the legislation is constitutional, not whether some Court might uphold it, but whether the President should give it his own unique constitutional imprimatur.

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Republish Someone's Offensive Opinions, and Risk Liability If You're Seen as Being Motivated By a Desire to "Punish":

That's the holding of an unpublished California Court of Appeal opinion in Moreno v. Hanford Sentinel, handed down Thursday:

The issue presented by this appeal is whether an author who posts an article on myspace.com can state a cause of action for ... intentional infliction of emotional distress against a person who submits that article to a newspaper for republication.... Appellants ... argue that the person who submitted the article to the newspaper did so with the intent of punishing appellants ....

[T]he trial court should have overruled the demurrer to the intentional infliction of emotional distress cause of action. Under the circumstances here, a jury should determine whether the alleged conduct was outrageous....

Since the appeal is from the sustaining of a demurrer without leave to amend, the facts are derived from the complaint. This court must give the complaint a reasonable interpretation and assume the truth of all material facts properly pleaded....

Following a visit to her hometown of Coalinga, appellant, Cynthia Moreno, wrote “An ode to Coalinga” (Ode) and posted it in her online journal on myspace.com. The Ode opens with “the older I get, the more I realize how much I despise Coalinga” and then proceeds to make a number of extremely negative comments about Coalinga and its inhabitants. Six days later, Cynthia removed the Ode from her journal. At the time, Cynthia was attending the University of California at Berkeley. However, Cynthia’s parents, appellants David and Maria Moreno, and Cynthia’s sister, appellant Araceli Moreno, were living in Coalinga.

Respondent, Roger Campbell, was the principal of Coalinga High School .... The day after Cynthia removed the Ode from her online journal, appellants learned that Campbell had submitted the Ode to the local newspaper, the Coalinga Record, by giving the Ode to his friend, Pamela Pond. Pond was the editor of the Coalinga Record.

The Ode was published in the Letters to the Editor section of the Coalinga Record. The Ode was attributed to Cynthia, using her full name. Cynthia had not stated her last name in her online journal.

The community reacted violently to the publication of the Ode. Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, David closed the 20-year-old family business....

The court concludes (correctly) that Moreno and her family can't recover under the "disclosure of private facts" tort. I have argued before that the disclosure of private facts tort is itself unconstitutional; but while California courts (and most other state courts) do recognize the tort, they at least limit it to information that is private, not something that a plaintiff has voluntarily disclosed about himself. Here, "Having been published on myspace.com, the Ode was not private." "That Cynthia removed the Ode from her online journal after six days is also of no consequence. The publication was not so obscure or transient that it was not accessed by others.... Finally, ... [a]lthough her online journal only used the name “Cynthia,” it is clear that her identity was readily ascertainable from her MySpace page ...."

But, despite this, the court said that it was up to the jury to decide whether the principal should still be held liable — potentially for tens or hundreds of thousands of dollars, and presumably potentially including punitive damages as well:

“The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.”

To be outrageous, conduct must be so extreme that it exceeds all bounds of that usually tolerated in a civilized community. However, conduct that might not otherwise be considered extreme and outrageous may be found to be so if a (1) defendant abuses a relation or position that gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.

It is for the court to determine in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.... But, “‘[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.’” ....

In stating their claim for intentional infliction of emotional distress, appellants alleged that Campbell submitted the Ode to the Coalinga Record, knowing he did not have permission to do so. Appellants further alleged that Campbell engaged in this act to punish appellants for the contents of the Ode and intended to cause them emotional distress. Appellants contend that this conduct was extreme and outrageous, especially in light of Campbell’s position as Araceli’s principal.

Since this appeal is from the sustaining of a demurrer without leave to amend, this court must assume the truth of appellants’ allegations against Campbell. Based on these allegations, we conclude that reasonable people may differ on whether Campbell’s actions were extreme and outrageous. Accordingly, it is for a jury to make this determination.

Consider the implications of this: The speech here may have been merely anti-Coalinga, but under the First Amendment precisely the same logic should apply when someone publicizes another's postings that are (say) racist, anti-American, sexist, pro-drug-use, anti-gay, pro-crime, or or anti-religious in order to fault them for their views. If you find that someone from your community is expressing views that you believe repulsive, and you try to condemn the person by posting the statements to your blog — or circulating them on an e-mail list or publishing them in a newspaper — you could, given the logic of the case, face a ruinous lawsuit.

Of course, tens of thousands of dollars in legal fees later, you might get off the hook if a jury concludes that your reporting on another's words wasn't "extreme and outrageous." But how can you predict that? Why should we think that this vague and subjective judgment won't turn on the nature of the views you're reporting?

If the touchstone is whether you were acting "to punish" the speaker "for the contents of" his offensive speech, how will a jury distinguish a desire to punish from a desire to inform the public about the evil views that someone they know is spreading? And even if your goal is to punish, through social ostracism, why isn't that a permissible goal, especially when the person has said insulting and in your view deeply wrongheaded views? Either it's no longer fine to try to ostracize someone for being (say) a bigot — or if that's still fine, then how can the law draw a constitutionally permissible line between that and trying to ostracize someone for insulting her home town?

In fact, the U.S. Supreme Court has already made clear — in a unanimous decision — that speech aimed at ostracizing someone is constitutionally protected, even when the person was a private individual exercising his own constitutional rights, and even in an environment where such ostracism may well lead to violence. The case was NAACP v. Claiborne Hardware, and the Court held that speech publicizing the names of black customers who shopped at white stores (contrary to a boycott that the local NAACP and others were organizing) couldn't form the basis of a tort lawsuit for interference with business relations:

Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.

The same logic would apply to an intentional infliction of emotional distress lawsuit by the embarrassed person as it would to the lawsuit involved in Claiborne (an intentional interference with business relations lawsuit brought by a business that the embarrassed people stopped frequenting as a result of the threat of ostracism).

Naturally, the violence against Moreno was repulsive. But there was no indication in the opinion (which stated the facts as alleged in the complaint) that the principal was a conspirator in the violence. Nor was there even any indication that the principal knew that there was a very high likelihood that people would take the Ode so seriously as to fire shots over it — not that such knowledge should be enough either, in my view, as cases such as Claiborne illlustrate. At most one could argue that the principal should have known that some violence would result, if the violence is the touchstone of the claim. But exactly the same could be said when one outs a community member as a racist, or a terrorist sympathizer, or whatever else.

Finally, it's conceivable that reprinting the MySpace posting would infringe the author's copyright. But copyright claims are for federal courts to decide under the specific remedial scheme of the Copyright Act, with the various Copyright Act defenses, chiefly fair use. Here it is indeed quite likely that the principal's use was a fair use, because the Ode was noncommercial, because it had been published, because the reprinting wouldn't interfere with the commercial value of the Ode, and because in context the reprinting was probably transformative in purpose — the point was not to use the words as one's own, but rather to condemn the author by quoting his words.

In this respect, the principal's reuse was much like the practice of some blogs in reprinting threatening letters from lawyers when the blogger thinks the lawyer's demand is unfounded, a practice that seems to me to be likely fair use. But republishing the Ode was even more likely to be fair use than republishing a lawyer's nastygram would be: the Ode was published before the republication and the lawyer's letter wouldn't have been (the original work's being unpublished cuts in some measure against fair use).

Moreover, the court's reasoning on the emotional distress tort would have of course equally applied if the principal had quoted only the key excerpts (which would have been even more clearly fair use), and paraphrased the rest (which would not have been even presumptively copyright infringement, if it copied only the idea and not the expression). So the court's decision can't be defended on copyright law grounds.

* * *

So this is an unsound and dangerous opinion. Fortunately, it's unpublished and therefore doesn't set a binding precedent in California. But it is available in Westlaw and Lexis, and can certainly be influential. I hope California courts quickly change course, and see the First Amendment problems with allowing the emotional distress tort to be used this way.

UPDATE: Some commenters read the opinion as suggesting that the Ode was published in the Coalinga Record as if Moreno had actually submitted the Ode to the record. I'm skeptical about that. The opinion does say, "The Ode was published in the Letters to the Editor section of the Coalinga Record. The Ode was attributed to Cynthia, using her full name." But if it was attributed in the sense of just looking like a letter to the editor, then (1) the fault for that would likely be the newspaper's, not the principal's, but the newspaper publishers were dismissed as defendants; (2) presumably the cause of action would be for defamation or false light, since the gravamen of the case would be deception; and (3) I take it there'd be some reference to the supposed outrageousness of the deception in the court's analysis, but there was none.

In any case, if indeed the newspaper and Campbell together published something as a letter to the editor, even though it was never submitted as a letter to the editor, that would indeed be bad, and likely actionable. Among other things, it would injure Moreno's reputation, since someone who says insulting things about her home town in a letter to the editor of a newspaper is likely to be seen as much more reprehensible than someone who says insulting things about her home town in a Myspace journal — the strongly implied false assertion that Moreno submitted the Ode as a letter to the editor would thus be false and defamatory. But the proper solution to that is a cause of action under a tort that's carefully limited to false statements of fact, rather than under a tort that just leaves it to the jury to decide whether the behavior (even in the absence of any falsehood) is "outrageous."

If anyone has more details on the case, please let me know. (I tried to find more online, including on the California Court of Appeal's site, but I couldn't see the briefs or other papers in any directly accessible place.)

64 Comments

The "Right of Publicity" Affecting Museums:

I neglected to link to this New York Times article when it came out a few weeks ago, but I thought I'd remedy that now. If you're interested in the constitutional issue, you might check out my Freedom of Speech and the Right of Publicity article.

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More on the Slippery Slope to Same-Sex Marriage:

(This post returns to some points I'd made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)

Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."

Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):

A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts] is whether the characteristic at issue — sexual orientation — is related to the person’s ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others” or “reflect[s] outmoded notions of the relative capabilities of persons with the characteristic.”

Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). [Footnote: The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person’s ability to contribute to society. See Iowa Admin. Code r. 191-48.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 281-12 (preamble) (ensuring access to education meeting child’s needs and abilities regardless of sexual orientation); id. r. 281-12.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 281-12.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students’ sexual orientation); id. r. 281-68.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 282-25.3 (labeling denial of participation in benefits of educational program based on sexual orientation an “unethical practice”); id. r. 282-26.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641-131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645-282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645-363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 657-3.28 (providing that sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657-8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).]

Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society. [Footnote: Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation “in every important economic and social institution and activity that the government regulates”); cf. Frontiero, 411 U.S. at 687 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are “inherently invidious” and implying significance of “conclusion of coequal branch of Government” in deciding whether to apply heightened scrutiny).] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.

Therefore, we must scrutinize more closely those classifications that suggest a law may be based on prejudice and stereotype because laws of that nature are “incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.

Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, and by the California Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts and California) and same-sex domestic partnership benefits (Vermont).

Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.

But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.

And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.

So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can't be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?

Would it increase the likelihood of broader restrictions on anti-homosexuality speech — in government-run organizations, or in private organizations coerced by government pressure — by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people's choosing roommates based partly on sexual orientation, or advertising such preferences in "roommates wanted" ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions' partial exemptions from some bans on sexual orientation discrimination in employment?

Perhaps some of this would have already been the case under Iowa statutes — such restrictions are primarily the consequences of antidiscrimination statutes, not of same-sex marriage as such. And the conclusion that the government generally may not discriminate based on sexual orientation is distinguishable from a conclusion that private entities generally may not discriminate based on sexual orientation, or that individuals may not say things that create an "offensive environment" based on sexual orientation.

But as we saw, that two things are distinguishable does not mean that they will be distinguished, and a governmental judgment in one field may be used by other governmental decisionmakers as a reason to push further in another field, whether in interpreting a vague statute, enacting a new statute, or repealing an exemption in an old statute. And such decisions can have effects on other states as well: Consider the Iowa Supreme Court's extensive citations to similar decisions in other states, which I suspect considerably emboldened the Iowa Justices. For some much more detailed and concrete discussion of how the slippage can work -- and I've long stressed that investigating the risk of slippage requires getting detailed and concrete -- see this article I wrote on Same-Sex Marriage and Slippery Slopes that I wrote a few years ago.

So I stress again: Perhaps such slippage would be good, or even if it isn't good, the same-sex marriage decision is so good that it should be embraced regardless of the risk of slippage. But I don't think it's credible at this point to just casually dismiss the possibility of slippage in this area, given how many slippery slope effects we have already seen.

340 Comments

The Case Against Koh…

disputed. The debate about his nomination to legal advisor at State so far features a breathless New York Post article, a bland and uninformative Times article, an indignant piece in Slate, and much huffing and puffing by bloggers who, with a small number of honorable exceptions, have refrained from discussing Koh’s ideas.

Koh is best known for his defense of what he calls “transnational legal process,” a somewhat ill-defined concept that refers to the process by which international legal norms enter domestic law. When the president ratifies a treaty with senate consent, the treaty becomes a part of American law; if the treaty is self-executing, courts will enforce its provisions. Congress can also adopt international law by statute. Common law courts, including federal courts using their limited common law powers, are free to draw on international and foreign law for inspiration, and often do. And federal courts sometimes rely on norms of international law for the purpose of interpreting ambiguous statutes and, more controversially (because they are so hard for legislatures to change), constitutional provisions such as the eighth amendment.

The observation that courts do these things is not controversial. The significance of these practices is open to question. In Koh’s work, transnational legal process explains why nation states comply with international law despite the absence of international legal enforcement mechanisms. He thinks that transnational litigation—along with other bureaucratic and diplomatic processes—causes states to “internalize” international law. Judges, bureaucrats, elected officials, and the other people who make decisions on behalf of states become habituated (by a process that Koh does not explain) into complying with international law, and so cause states to obey international law even when a cost-benefit analysis would indicate that violation of a particular international legal norm serves a state’s interest.

Koh argues by example and in his hands every example turns into a homily about the wisdom of, invariably, liberal norms of international law, the futility of resisting them, and the retrograde attitude of the United States (particularly, Republican administrations). The Reagan administration junks the ABM treaty but then transnational legal process compels the United States to retreat during the Clinton administration. (Koh made this argument before Bush II tore up the treaty.) The Reagan administration mines Nicaragua’s harbors and disregards an adverse judgment from the International Court of Justice, yet this judgment mobilizes popular opinion that forces Reagan to pull in his horns. (This account is largely baloney.) The U.S. government kidnaps a criminal suspect from Mexico but then pays the price in domestic litigation and backs away from this practice (except when it doesn’t). The U.S. refuses to enter the Landmines treaty but nonetheless finds itself succumbing to anti-landmines pressure. Americans support the death penalty but international law frowns upon it, and eventually the Supreme Court cites foreign and international law in the course of striking down capital punishment for people who are mentally retarded or who committed capital crimes while juveniles.

For Koh, these examples and others like them show that international law does not merely influence domestic law when the U.S. government says so—something that no one doubts or objects to. International law also affects domestic law in the teeth of opposition by the elected officials of the U.S. government, often in ways that are indirect and hard to observe. That is why international law doesn’t need an external enforcement mechanism to be effective. And this is a good thing, according to Koh. We should show a “decent respect to the opinions of mankind,” and somehow we end up doing this even when we vote for politicians with the opposite impulse—all thanks to transnational legal process.

This brings us to the Shariah discussion at the Yale Club in New York, which started the debate. It wouldn’t surprise me if someone asked that question—whether U.S. courts would have to enforce Shariah. It is the obvious sort of question that anyone who hears Koh’s ideas would ask. What if the “opinions of mankind,” as embodied in international or foreign law or simply international opinion, diverge from our own opinions about how we should conduct our political life?

According to the Times’ account, Koh responded to the Shariah question by saying that all legal systems have common underlying concepts—in other words, we show respect for the law of another state by enforcing those principles common to it and other legal systems, including our own. If that was his answer, it was a dodge. When Koh argued in one of his articles that execution of mentally retarded people violates international law, and therefore should be stopped, he was obviously not making a lowest-common-denominator argument, a type of argument that does not have any critical force whatsoever. The United States should refrain from executing the mentally retarded because most other countries refrain from executing the mentally retarded, and that is that.

So consider now the United Nations Human Rights Council’s resolution last month that defaming religion (actually, defaming Islam) violates international human rights law. The Europeans were outvoted, not that this matters, but even if it does, it does not take much effort to imagine them changing their tune in an effort to appease their restive Muslim populations, especially given that norms of freedom of expression have always been weaker in Europe than in the United States. When this happens, must Americans conclude that international law prohibits the defamation of religion? Would American politicians, judges, and bureaucrats have an obligation to incorporate this norm into American law?

The Europeans themselves don’t seem to think so. Last fall, in the Kadi case the European Court of Justice implicitly repudiated Koh’s notion of transnational legal process in the course of holding that international law (in the form of a UN Security Council resolution on terrorist financing) would not bind European member states because it offended European notions of procedural due process. The Europeans chose to adhere to their values rather than pay “decent respect to the opinions of mankind.” Why shouldn’t we?

In an article a few years back, Koh finally responded to these sorts of criticisms. He said that transnational legal process is not about “nose-counting,” and so we needn’t accept the bad with the good. The subtext was that we can ignore those retrograde Muslim countries—they just aren’t “developed” like us in the west. Koh left it at that, giving the reader the distinct impression that international law counts only when it coincides with the norms of the Yale Law School faculty lounge.

Foreign-law opponents, take heart! Koh is not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law serves as a handy vehicle, to be used or ignored to the extent necessary to reach this goal. Obama is certainly entitled to have a mainstream liberal lawyer like Koh in his government. In case you haven’t noticed, Koh won’t be the only one.

For my part, I wish I were wrong, and that Koh’s tenure would be a real test of legal cosmopolitanism, properly understood. I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same. I would expect that Koh would soon find himself negotiating embassy lease agreements in Burkina Faso. But Koh will not be so rash. In his writings, Koh has been careful to leave this final evolution of the customary international law on capital punishment to the undefined future, a mark of prudence that should serve him well in government.


Oliver Willis on Republicans Encouraging Cop-killers.

It is highly odd that Oliver Willis would attribute murdering cops to those who hold Republican views.

ARREST RATES. In the debates over whether felons can vote, both Republicans and Democrats seem to agree implicitly that felons will tend to favor Democrats. I have never heard anyone even hint the opposite.

That is consistent with General Social Survey data showing that the odds of a Democrat or Independent reporting having been arrested or charged with a crime are 122% higher than the odds of a Republican reporting being arrested or charged with a crime. Among those who report having been arrested or charged, only 12% are Republicans. The others are 9% Independent, leaning Republican; 18% Independent (no leans); 18% Independent, leaning Democratic; 40% Democrats. (Of course, arrest is not the same as offending or conviction, but the political makeup is likely to be in the same general direction.)

I am aware of no data on the party identification of murderers in general or of cop-killers in particular, but there is no reason to suppose that the political orientation of cop-killers is any more Republican than the general criminal population, which everyone assumes (and GSS data indirectly suggests) is disproportionately Democratic.

ANGER AND HAPPINESS. As to anger and happiness, in the GSS Republicans report being much happier, being less likely to be angry at someone, and less likely to be mad at someone or something. When angry, their anger lasts less time, and they are less likely to plot revenge.

Compared to non-Democrats, on the other hand, Democrats report being somewhat less happy and when angry, their anger tends to last longer. On being angry at someone, being mad at someone or something, and plotting revenge, the results are not significant because Independents are (usually insignificantly) more extreme than Democrats on these issues).

I don’t know whether Democratic views cause criminality or anger -- frankly, I doubt it. The likelier causal direction is that unhappiness with one’s lot in business and in life tends to make someone Democratic, a probable example of what social psychologists call motivated social cognition.

Related Posts (on one page):

  1. Oliver Willis on Republicans Encouraging Cop-killers.
  2. Redistibutionists tend to be Angry and to Plot Revenge.

Redistibutionists tend to be Angry and to Plot Revenge.

Oliver Willis expands on the views of Kos, arguing that Glenn Reynolds chose the side of the political aisle that encourages people to shoot cops:

The conservative blogs are enraged that people are pointing out that they have and are stoking the fires of an atmosphere of hate that leads to police officers getting killed. As I’ve written for years, this is part of their pattern of behavior in America and for too long we’ve accepted their verbal diarrhea and incitements to violence as honest political dialogue and not the insanity it is.

. . . Its days like this I’m glad that when I was deciding what side of the political aisle I wanted to be on, I didn’t make the same mistake as Glenn Reynolds and choose the one where we encourage people to shoot cops.

In taking apart Kos’s views, Confederate Yankee is too generous to the Kos/Willis position:

Anger, is an emotion. It is apolitical and amoral, neither right nor wrong nor identifiable with a party affiliation. It is how a person choses to channel anger into action that defines him as good or evil or benign.

This is true, but there are patterns in opinions and attitudes. I discuss some of them in "Testing Social Dominance: Is Support for Capitalism and Opposition to Income Redistribution Driven by Racism and Intolerance?," a chapter of my Ph.D. thesis that I’ve presented at faculty workshops at Yale and the Univ. of Chicago, as well as academic conferences. An earlier version can be downloaded here.

Contrary to the prevailing view of political psychologists, those who support capitalism and oppose income redistribution do not express traditionally racist or intolerant attitudes. Indeed, they tend to express views that are slightly less racist and intolerant than other Americans. The Von Mises thesis posits that redistributionists are driven by envy for the property of others and a frustration with one’s lot in a capitalist system. If that were true, one would expect redistributionists to express more unhappiness, anger, and a desire for revenge—and they do. In General Social Surveys, both redistributionists and anti-capitalists express significantly lower satisfaction with their financial situations and with their jobs or housework. Indeed, they report that they are less happy overall and have less happy marriages.

The 1996 General Social Survey explored the emotional makeup of Americans in greater depth. About 900 respondents were asked: “On how many days in the last 7 days, have you felt” happy, sad, lonely, calm, anxious, angry, tense and angry, and twelve other emotions. I compared these results to the results on an income redistribution question, EQLWLTH . . . .

As Table 3-3 illustrates, strong redistributionists (category 1) reported that they “worried a lot about little things” on about one more day a week than strong anti-redistributionists (category 7): 3.3 days a week compared to 2.3 days a week. They also reported being “lonely” and being unable to “shake the blues” on about an additional day a week. Strong redistributionists (category 7) also reported about one fewer day a week on which they were “happy,” “contented,” and “at ease.”

In terms of relative odds (Table 3-3), compared to strong anti-redistributionists (category 7), strong redistributionists (category 1) had about two to three times higher odds of reporting that in the prior seven days they were “angry” (2.0 times higher odds), “mad at something or someone” (1.9 times), “outraged at something somebody had done (1.9 times), sad (2.1 times), lonely (2.3 times), and unable to “shake the blues” (3.5 times). Similarly, as Table 3-4 shows, anti-redistributionists had about 280% higher odds of reporting being happy (3.8 times) and about 110% higher odds of reporting that they were at ease (2.1 times). Overall, favoring income redistribution positively predicted 9 of 12 superficially negative emotions and negatively predicted 4 of 7 superficially positive emotions, which was a remarkably consistent pattern. The data are consistent with redistributionists in the general public being considerably more angry, sad, lonely, worried, and restless, and less happy, at ease, and interested in life.

Not only do redistributionists report more anger, but they report that their anger lasts longer. Further, when asked about the last time they were angry, strong redistributionists were more than twice as likely as strong opponents of leveling to admit that they responded to their anger by plotting revenge.

But do these attitudes have behavioral consequences? In other words, are the data consistent with the hypothesis that anti-redistributionists are more generous or altruistic? Data from self-reports in the General Social Survey (Table 3-5) appear to support the notion that those who oppose income redistribution are somewhat more altruistic in their behavior than redistributionists.

It is sad that Willis would point to Republicans as particularly angry or vengeful, when those who strongly favor income redistribution (a central position of the current Administration) are more than twice as likely as strong opponents of leveling to admit that they responded to their anger by plotting revenge.

Related Posts (on one page):

  1. Oliver Willis on Republicans Encouraging Cop-killers.
  2. Redistibutionists tend to be Angry and to Plot Revenge.

Sunday, April 5, 2009

My Sense of How Philosophers View the Study of Law:

The study of law is to the study of philosophy as Spanish is to Latin.

70 Comments

Creditors Should Suffer Too:

Tyler Cowen in today's NYT:

even smart and honest regulators can monitor a financial firm only so well. A firm’s balance sheet doesn’t always reflect its true health, and regulators do not have an inside perspective on the firms they are supposed to secure. We do need more effective regulation, but calls for regulators to “get tough” are likely to prove effective only as long as a crisis lasts.

What the banking system needs is creditors who monitor risk and cut their exposure when that risk is too high. Unlike regulators, creditors and counterparties know the details of a deal and have their own money on the line.

But in both the bailouts and in the new proposals, the government is effectively neutralizing creditors as a force for financial safety. This suggests a scary possibility — that the next regulatory regime could end up even worse than the last.

The more closely a financial institution is regulated, the more it will be assumed that its creditors enjoy federal protection. We may be creating a class of institutions whose borrowing is, in effect, guaranteed by the government.

It doesn’t need to be this way.

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"Sanctioned":

Here's a phrase I just spotted in a (generally very good) paper I'm reading:

[T]he Court has sanctioned the use of speech as evidence in establishing that ....

Is that "sanctioned" in the sense of "approved" or in the sense of "punished" (a common use of the term "sanction" in litigation)? The reader should be able to figure this out from context, but it's usually better not to put the reader to the work of having to do that, or risk even briefly leading the reader in the wrong direction.

So be careful with this contronym, and avoid using it as a verb, except when the context makes things completely clear (for instance, because you have just been talking about Rule 11 sanctions -- a common legal term -- and your use of "sanctioned" clearly links back to the earlier noun phrase).

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"Obama Makes Some Tough Business Decisions": From last night's Saturday Night Live:
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How Much Will Government Grow?

Jacob Levy places a bet. Mike Rappaport would take it.


The Defunded D.C. Voucher Program:

Today's Washington Post reports:

The D.C. Opportunity Scholarship Program, the first federal initiative to spend taxpayer dollars on private school tuition, was created by a Republican-led Congress in 2004 to help students from low-income families. Congress has cut off federal funding after the 2009-10 school year unless lawmakers vote to reauthorize it.

Overall, the study found that students who used the vouchers received reading scores that placed them nearly four months ahead of peers who remained in public school. However, as a group, students who had been in the lowest-performing public schools did not show those gains. There was no difference in math performance between the groups. . . .

The study, conducted by the Education Department's research arm, the Institute of Education Sciences, compared the performance and attitudes of students with scholarships with those of peers who were eligible but weren't chosen in a lottery. Parents of students in the program were more satisfied with their children's new schools and considered the schools safer, the report found. Students showed no difference in their level of satisfaction.

Related Posts (on one page):

  1. D.C. Vouchers - RIP?
  2. The Defunded D.C. Voucher Program:
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Sunday Song Lyric:

The video for Run-DMC's 1985 hit, "King of Rock," opens with the duo approaching the "Museum of Rock and Roll." As the enter, a security guard blocks their way. "Hey, this is a rock and roll museum. You guys don't belong in here." But the rap duo will have none of it.

I'm the king of rock, there is none higher
Sucker MC's should call me sire
To burn my kingdom, you must use fire
I won't stop rockin' till I retire

Now we rock the party and come correct
Our cuts are on time and rhymes connect
Got the right to vote and will elect
And other rappers can't stand us, but give us respect

This weekend, the real Rock and Roll Hall of Fame gave Run-DMC their respect, and highest honor, inducting the rap pioneers into the Hall for their path-breaking and genre-blending career.

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Evil Men:

A while back I posted a commentary about the two judges in Wilkes-Barre PA who sentenced several thousand kids to time in the local detention center in exchange for $2.6 million in kickbacks from the operator of the detention facility. I wrote:

Maybe it's just because I am a parent with two kids of my own, or maybe I'm just a soft-hearted romantic, but to do this to young people for the sake of a few bucks (or 2.6 million bucks, or 260 million bucks) is -- well, you pick your own adjective. One has to assume that lives were ruined because of this -- 3 months in juvy for a high school kid who doesn't belong there is a terrible, terrible thing - and I hope these two (for the record, and for the benefit of Internet readers in the 22nd century, and to insure that their names do not disappear from the List of the Wicked, the judges in question were Judge Mark A. Ciavarella Jr., and Judge Michael T. Conahan) get the punishment they so truly deserve. 2009, I hope, won't give us anything more shameful than this.

The Times had a story last week giving more of the gory details of how the two arranged the scam, and it makes for a sad, sad story of venality and greed of the worst possible kind. I'm horrified to discover, among other things, that one of the two (Michael Conahan) has a law degree from Temple, where I teach law - an ugly stain on a fine institution.

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Jefferson's Moose is Everywhere!:

In case the upload doesn't work well enough for you to read the text, here's a link. The final panel reads:

"And Thomas Jefferson, to prove to an 18th century French naturalist that the New World's life forms were not inferior to those of the Old World, selected the moose to defend the honor of the United States."

Related Posts (on one page):

  1. Jefferson's Moose is Everywhere!:
  2. Sen. Kerry's Moose:
  3. Moose Sightings, Con't: San Diego
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Court Grammarian?

Bill Poser (Language Log) pointed me to this passage Providence Journal article:

[Former Chief Justice Frank] Williams’ new chambers needed a total overhaul, Berke said, because the office space had been used for a different purpose for years. It was formerly occupied by the [Rhode Island Supreme C]ourt’s grammarian and interns, Berke said, and had been configured not as a chambers for a justice, but as an office with three work stations.

Anyone know more about the Rhode Island Supreme Court grammarian?

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