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Saturday, July 4, 2009

The Declaration of Independence and the Case for Non-Ethnic Secession:

One of the striking differences between the American Revolution and most modern independence movements is that the former was not based on ethnic or nationalistic justifications. Nowhere does the Declaration state that Americans have a right to independence because they are a distinct "people" or culture. They couldn't assert any such claim because the majority of the American population consisted of members of the same ethnic groups (English and Scots) as the majority of Britons.

Rather, the justification for American independence was the need to escape oppression by the British government - the "repeated injuries and usurpations" enumerated in the text - and to establish a government that would more fully protect the rights to "life, liberty, and the pursuit of happiness." The very same rationale for independence could just as easily have been used to justify secession by, say, the City of London, which was more heavily taxed and politically oppressed than the American colonies were. Indeed, the Declaration suggests that secession or revolution is justified "whenever any Form of Government becomes destructive of these ends" [emphasis added]. The implication is that the case for independence is entirely distinct from any nationalistic or ethnic considerations.

By contrast, modern international law, such as the International Covenant on Civil and Political Rights assigns a right of "self-determination" only to "peoples," usually understood to mean groups with a distinctive common culture and ethnicity. If the American Revolution was justified, the ICCPR's approach is probably wrong. At the very least, secession should also be considered permissible where undertaken to escape repression by the preexisting central government. For example, Taiwan's de facto secession from China in 1949 was surely justified, despite the fact that most of the island's population consists of ethnic Chinese.

The Chinese on Taiwan seceded for the purpose of escaping rule by a communist regime that went on to slaughter millions of its own people. Had it retained control of Taiwan, it would likely have oppressed its population far worse than anything 18th century Americans suffered at the hands of the British. Today's Chinese regime is much less brutal than that of Mao Zedong; but it is still much more repressive than Taiwan's own government. Athough the Taiwanese government continues to affirm that the island is officially a part of China, it is in reality a separate nation in everything but name. Formalizing Taiwan's independence might be pragmatically unwise for any number of reasons. But that in no way undermines the moral case for it.

The case for allowing non-ethnic secession in cases where it is used to escape brutal repression strikes me as overwhelming. More controversial is the case for allowing it in situations where a group seeks to secede merely because they believe they can establish a better government than the status quo, even if the latter is not unusually oppressive. In my view, this type of secession should also be permitted, so long as the secessionists do not plan to engage in oppression of their own, and meet a few other criteria. I will not, however, try to argue for this broader right to secession here; those interested in the relevant argument should check out Christopher Wellman's excellent book on the subject. For now, I will only suggest that the example of the American Revolution and other similar situations provides a strong argument for allowing non-ethnic secession in cases where it is used to escape a repressive central government.

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The Fourth of July:

July 4, 1776 - entry in Jefferson's "Memorandum Book":

"Pd. Sparhawk for a thermometer 3/15"

Somehow I've always loved that - that on the day Congress approves the revised version of the Declaration of Independence, Jefferson heads into town to buy a thermometer.

And regarding co-blogger Kenneth Anderson's comments on Jefferson's violin-playing musical tastes: one of the great encounters in history took place in 1760 when the 17 year-old Jefferson is heading off to college (William and Mary, in Williamsburg); along the way (several days journey in those days), he stops off at Nathaniel Dandridge's plantation in Hanover County for 4 or 5 days, and who should be there but Patrick Henry (then 23). Henry, too, played the violin, and the two of them, apparently, spent hours each day playing together. I've always loved that picture in my head, too -- Jefferson and Henry, fiddling away together.

And it's also nice that Jefferson, like just about every amateur musician around, grossly exaggerated the amount of time he epent practicing, writing to his son-in-law late in life that he practiced three hours a day (!). [If you're interested in Jefferson-the-Musician, I can recommend Helen Cripe's "Jefferson and Music" (UVA Press 1974) and Sandor Salgo, "Thomas Jefferson: Musician and Violinist" (TJ Foundation 2000).]

"What so hard, so stubborn, or so fierce, But music for the time will change its nature? The man who has not music in his soul, Or is not touch'd with concord of sweet sounds, is fit for treasons, strategems, and spoils . . . Let no such man be trusted."

From Jefferson's "Commonplace Book" (original quotation from The Merchant of Venice, Act V)

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The Star-Spangled Banner

courtesy of Von Cello at a Yankees game. Not as good as Matt Haimovitz at CBGB on acoustic cello doing his version of Hendrix, but the best I could come up with on YouTube. Hope this works. I can't figure out how to embed the video the way everyone else does.

This is further to my prior post about cello playing; indulge me, it's a holiday. I too have an electric cello, with a synthesizer pedal and amp, and when no one is in the house I make a lot of noise. A lot of noise. Off and on (meaning when no one is in the house) I have been working on learning Carlos Santana's old standard, La Samba Para Ti, using a note by note transcription.

Actually, the Haimovitz interview linked here - though you don't hear much of his playing - is really very touching for the 4th of July - talking about the freedom that this country gives him to go around the country and play the Bach cello suites in little bars, cafes, and pubs. Vive liberty.

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Jefferson and Music:

If you are a music lover and particularly, like me, a lover of the music of the 18th century, then you will be fascinated by Barrymore Laurence Scherer's (July 2, 2009) essay in the Wall Street Journal on Thomas Jefferson's musical tastes.

I was not aware that Jefferson was an avid violinist, for example - so much so that he had 'a "kit" — a slender dance-master's pocket fiddle — and had a case for it fashioned for his saddle so he could play and practice while traveling'. Although by political inclination I am more of a 'Franklin man' as among the Founders, I am also a (horrendously bad) amateur cellist with a strong preference for the music of Jefferson's century, and this endears me to Jefferson more than almost any other fact about him. Jefferson's 'kit', for example, reminds me of my Yamaha electric practice cello, which packs down into a compact carrying case that, until 9/11, I often used to carry onto airplanes, until a security person pointed out that the packed cello looked for all the world like a shotgun case.

I was intrigued with what Scherer says were Jefferson's tastes - Corelli, to start with. Well! Well, well! I am a huge fan of the Corelli violin sonatas, and have spent years practicing cello transcriptions of several of them. I own four versions of them on CD; of those, my favorite violinist is Andrew Manze, but the John Holloway version features, on half of them, the rapturous basso continuo of Baroque cellist David Watkin, improvising whole chordal structures. I also have a great fondness for the gamba version of them by Balestracci, using a transcription for gamba that dates back to just a few years after they were composed. Although in the end, Bach is Supreme, alpha and omega, etc., the Corelli sonatas are a form of sweetness that makes one understand why they have never been out of print in hundreds of years.

If you don't follow Baroque music, this post will have to seem pretty opaque - baroque, even - but I came away from reading Scherer's article ready to give Mr. Jefferson a call to suggest we run through a few sonatas together.

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July 5th Oration by Frederick Douglass: Tomorrow I am hoping to attend a recreation of Frederick Douglass's Independence Day oration at his home in Anacostia, DC.
FREDERICK DOUGLASS SPEECH Sunday at 1. Reenactor Kevin McIlvaine delivers the speech, originally given by the abolitionist on July 5, 1852, that focused on the failure of the Declaration of Independence to fulfill its promise to provide freedom for African Americans. Frederick Douglass Home, 1411 W St. SE. 202-426-5961. Free.
Today, historian Jonathan Bean has a nice essay on National Review Online entitled, The Party of Lincoln, and of Douglass: Rediscovering Frederick Douglass in the Age of Obama. Here is how it opens:
Some 157 years ago, in 1852, the great abolitionist Frederick Douglass delivered his “Fourth of July Oration” condemning America for practicing slavery and thereby failing to live up to the humane ideals expressed by the Declaration of Independence.

“What, to the American slave, is your Fourth of July?” Douglass thundered. “I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.”

Douglass’s words might seem passé on Independence Day 2009, with Barack Obama occupying the White House, several black Americans serving as governors, and others running everything from the Republican National Committee to Fortune 500 companies. But the words of the Sage of Anacostia remain not only relevant, but essential. Why? Douglass unfailingly opposed any man’s exercising control over another, and he would be appalled, his writings suggest, by the new spirit of dependency and control ushered in with the Age of Obama. Douglass championed limited constitutional government, colorblind law, capitalism, hard work, and self-help. His principles are not the stuff of “New New Deals” but rather a brief for a “New Independence Day” based on small-government principles.
This reminded me of a blog post of mine from July 4th, 2006, which I reprint here:

Elevate your Independence Day by reading this moving 1852 oration by Frederick Douglass in its entirety. There is so much to appreciate in this speech, it is difficult to select excerpts. But here is one passage I particularly like:
But, your fathers, who had not adopted the fashionable idea of this day, of the infallibility of government, and the absolute character of its acts, presumed to differ from the home government in respect to the wisdom and the justice of some of those burdens and restraints. They went so far in their excitement as to pronounce the measures of government unjust, unreasonable, and oppressive, and altogether such as ought not to be quietly submitted to. I scarcely need say, fellow-citizens, that my opinion of those measures fully accords with that of your fathers.
Or this:
Must I undertake to prove that the slave is a man? That point is conceded already. . . . It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws, in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, there will I argue with you that the slave is a man!
Or this:
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.
But later he turns to the Constitution:
But it is answered in reply to all this, that precisely what I have now denounced is, in fact, guaranteed and sanctioned by the Constitution of the United States; that the right to hold and to hunt slaves is a part of that Constitution framed by the illustrious Fathers of this Republic.

Then, I dare to affirm, notwithstanding all I have said before, your fathers stooped, basely stooped
"To palter with us in a double sense:
And keep the word of promise to the ear,
But break it to the heart."
And instead of being the honest men I have before declared them to be, they were the veriest imposters that ever practised on mankind. This is the inevitable conclusion, and from it there is no escape. But I differ from those who charge this baseness on the framers of the Constitution of the United States. It is a slander upon their memory, at least, so I believe. There is not time now to argue the constitutional question at length — nor have I the ability to discuss it as it ought to be discussed. The subject has been handled with masterly power by Lysander Spooner, Esq., by William Goodell, by Samuel E. Sewall, Esq., and last, though not least, by Gerritt Smith, Esq. These gentlemen have, as I think, fully and clearly vindicated the Constitution from any design to support slavery for an hour.
"[L]et me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it."
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes. Is slavery among them? Is it at the gateway? or is it in the temple? It is neither. While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it. What would be thought of an instrument, drawn up, legally drawn up, for the purpose of entitling the city of Rochester to a tract of land, in which no mention of land was made? Now, there are certain rules of interpretation, for the proper understanding of all legal instruments. These rules are well established. They are plain, common-sense rules, such as you and I, and all of us, can understand and apply, without having passed years in the study of law. I scout the idea that the question of the constitutionality or unconstitutionality of slavery is not a question for the people. I hold that every American citizen has a right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one. Without this right, the liberty of an American citizen would be as insecure as that of a Frenchman. . . .

Now, take the constitution according to its plain reading, and I defy the presentation of a single pro-slavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.
He then concludes with what could have been a paean to the Internet and other liberating technologies:
Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented of the state of the nation, I do not despair of this country. There are forces in operation, which must inevitably work The downfall of slavery. "The arm of the Lord is not shortened," and the doom of slavery is certain. I, therefore, leave off where I began, with hope. While drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world, and trot round in the same old path of its fathers without interference. The time was when such could be done. Long established customs of hurtful character could formerly fence themselves in, and do their evil work with social impunity. Knowledge was then confined and enjoyed by the privileged few, and the multitude walked on in mental darkness. But a change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe. It makes its pathway over and under the sea, as well as on the earth. Wind, steam, and lightning are its chartered agents. Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic are, distinctly heard on the other. The far off and almost fabulous Pacific rolls in grandeur at our feet. The Celestial Empire, the mystery of ages, is being solved. The fiat of the Almighty, "Let there be Light," has not yet spent its force. No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light. The iron shoe, and crippled foot of China must be seen, in contrast with nature. Africa must rise and put on her yet unwoven garment. "Ethiopia shall stretch out her hand unto God." In the fervent aspirations of William Lloyd Garrison, I say, and let every heart join in saying it:

God speed the year of jubilee
The wide world o'er!
When from their galling chains set free,
Th' oppress'd shall vilely bend the knee,
And wear the yoke of tyranny
Like brutes no more.
That year will come, and freedom's reign,
To man his plundered rights again
Restore. . . .

Update: Link to Douglass's oration fixed

Related Posts (on one page):

  1. I Met Frederick Douglass Today:
  2. July 5th Oration by Frederick Douglass:

Friday, July 3, 2009

Was the Declaration of Independence an Example of Secession, Revolution, or Both?

Patri Friedman of seasteading fame, has an interesting post reopening an old debate: whether the Declaration of Independence launched a revolution or a secession movement. This was a hotly contested issue in the 19th century, when southern secessionists claimed they were following in the footsteps of the Founding Fathers who seceded from the British Empire, while many northerners responded by drawing a sharp distinction between secession and revolution.

The truth is that the Declaration of Independence was both a revolution and a secession. There is little question that American Patriots sought to secede from the British Empire in the sense that they wanted to break off their part of it and form a separate nation. Certainly, they weren't trying to replace the existing British government with a new one, while keeping the empire intact. On the other hand, the American independence movement was also revolutionary in the sense that it sought to institute a radically new political system. The revolutionaries certainly were not trying to gain independence simply for the purpose of establishing a smaller country with a political system that largely copied Britain's. For example, the rebels sought to create a polity with far stronger protections for individual freedom, no hereditary aristocracy, and a much more democratic political system than existed in 18th century Britain (or any other European state). Historian Gordon Wood discusses these and other radical changes sought by the revolutionaries in his excellent book The Radicalism of the American Revolution. Of course, the new United States did not consistently pursue liberal principles across the board, as witness the continuation of slavery in the South. But it did pursue them to a far greater extent than the British government of the day.

In sum, therefore, the revolution-secession dichotomy fails to capture the true nature of the American independence movement, which was an attempt to use secessionist means for revolutionary ends.

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Obama to Meet with Russian Opposition Leaders:

Like Cathy Young, I worry that President Obama might be overly solicitous of the interests of Russia's authoritarian regime. In this respect, he could potentially repeat the mistakes of President Bush, who - until relatively late in his presidency - tried very hard to develop a close relationship Russia's ex-KGB ruler Vladimir Putin (including ending US criticism of Russian atrocities in Chechnya, signing a nuclear arms limitation pact on terms favoring Russia, and waxing eloquent about how he had looked into Putin's eyes and saw an "trustworthy" partner with a wonderful "soul"), while getting few concessions from the Russians in return.

President Obama's decision to meet with Russian opposition leaders during his trip to Moscow is, however, a small hopeful sign:

President Barack Obama has invited several prominent members of the Russian opposition, including United Civil Front leader Garry Kasparov, for a meeting in Moscow. Boris Nemtsov, a chair of the Solidarity opposition movement, has also been invited to the meeting, set to take place on July 7th at the Ritz Carlton hotel. The format of the event was still unclear.

“Of course, this will be interesting,” Kasparov said on the Ekho Moskvy radio station. “The previous American administration didn’t dare to do this....”

Obama will travel to Moscow on July 6th for meetings with the Kremlin as well as business and civil society leaders. A meeting with Russia’s leading human rights advocates has been scheduled at the Metropol hotel, the location of a consultation between representatives from NGOs in the US and Russia.

Earlier, Boris Nemtsov argued that it was essential for Obama to meet with opposition forces in Russia. “If the White House agrees to Putin’s suggestion to speak only with pro-Putin organizations… this will mean that Putin has won, but not only that: Putin will become be assured that Obama is weak,” he said.

Falling oil prices and the financial crisis have reduced Putin's popularity and weakened his regime's grip on power. Now more than ever, it is important for the US to avoid putting all of our eggs in the Putin basket and encourage pro-Western liberal opposition forces in Russia.

That doesn't mean we should never cooperate with Putin on issues of common interest. For example, if Putin suddenly shows a willingness to work with the US on Iran, North Korea, and other issues, Obama should pursue any such opportunities that might arise. Effective foreign policy sometimes requires cooperation with unsavory regimes. While the current Russian government is odious, it isn't nearly as bad as its communist predecessors, or as repressive as the governments of Saudi Arabia, Egypt, and several other US allies.

So far, however, the Putin regime has done virtually nothing to reciprocate either Bush's many overtures or Obama's more recent efforts to press the "reset button" on US-Russian relations. As opposition leader Boris Nemtsov suggested in the passage quoted above, perhaps Putin will be in a more cooperative mood if we avoid looking weak and demonstrate that we have other options. Even if he doesn't, we have little to lose by working to foster liberal forces in Russia. And if the current regime's popularity continues to decline, we have a lot to gain from working to promote liberal alternatives to the strongly anti-Western communists and ultra-nationalists who are the other main alternative to the status quo in Russia. Obama's meeting with the Russian opposition leaders is a small but symbolically valuable step in the right direction.

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Zero Money Down, Not Subprime Status, Leads Foreclosures

according to Stan Liebowitz, reporting in the WSJ today (Friday, July 3, 2009 not sure if publicly available) on a regression analysis he conducted of home mortgage foreclosures. I wonder what co-blogger Todd makes of this; I'm not expert enough in the numbers surrounding home mortgages to say. However, as the article says, there certainly are policy implications, one way or the other. Here's a little bit:

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The limits of global legalism.

The African Union has decided not to cooperate with the International Criminal Court, which has indicted Sudan’s president, Omar al-Bashir, for crimes against humanity. The African Union has 53 members, 30 of which are parties of the ICC. These 30 states have therefore effectively announced that they will not comply with their treaty obligation to arrest al-Bashir and extradite him to The Hague.

It is increasingly clear that the ICC, like every utopian international institution that preceded it, will not accomplish its mission—to bring international justice to places like Sudan where a genocide is taking place. It is rapidly being downgraded to a development institution, one that can provide legal and judicial capacity to states that request its help in battles with insurgencies, such as Uganda and the Central African Republic.

Yet at the same time, international criminal law is coming down like a juggernaut on Israel. Israeli officials increasingly fear that they will be hauled off to court if they enter a European country. European governments and judiciaries are taking note of claims that Israeli soldiers and leaders committed war crimes in Gaza and elsewhere. (Yet Spain is junking its universal jurisdiction statute, partly because of Israeli pressure.)

Israelis should consider the Sudan example and think about their problem in simpler terms. Their actions have offended people in Europe and so these European countries are issuing what might be called contingent sanctions against Israelis who have used too much violence, in European eyes, against Palestinians. Sudan is in a similar position, but it has plenty of friends in Africa. Israeli officials need to work on their diplomatic relationships with European countries, reduce their use of violence in conflicts against Palestinians, or accustom themselves to taking their vacations elsewhere.

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Second-guessing the Second Amendment

That's the title of this week's Independence Day cover story in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second Amendment rights, including my article, "The liberal argument for gun ownership."

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The Freedom of Speech and Symbolic Expression:

I have an op-ed on the subject in the Wall Street Journal this morning, based on my Georgetown Law Journal article.

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Thursday, July 2, 2009

Is International Criminal Law 'Crowding Out' the Rest of International Law?

That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009). And I’m curious as to whether anyone else shares my general feeling that the very success (on some metrics, anyway) of international criminal law is tending to swallow, as it were, the rest of public international law.

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"Buried Deep Within Thomas Jefferson's Correspondence and Papers,

there lay a mysterious cipher -- a coded message that appears to have remained unsolved. Until now." That's the start of a very interesting article in Wall Street Journal. Thanks to my friend Prof. Haym Hirsh for the pointer.

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Why Obama Should Seek Legislative Support for Anti-Terror Policies:

On Monday, Benjamin Wittes and Jack Goldsmith had an op-ed in the Washington Post arguing that the Obama Administration should not replicate the Bush Administration's executive unilateralism in national security policy.

Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration's unilateral approach to detention. The attraction is simple, seductive and familiar. The legal arguments for unilateralism are strong in theory; past presidents in shorter, traditional wars did not seek specific congressional input on detention. Securing such input for our current war, it turns out, is still hard. The unilateral approach, by contrast, lets the president define the rules in ways that are convenient for him and then dares the courts to say no.

This seductive logic, however, failed disastrously for Bush — and it will not serve Obama any better. Bush's approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief's traditionally broad powers to detain enemy soldiers during war.

The result has been nearly eight years of unstable policy with no safe harbor for executive conduct and no settled rules for detainees. Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.

I think this is correct. Had the Bush Administration sought Congressional approval of their policies earlier, Congress would have given the Administration most everything it asked for, and the Supreme Court would have been less likely to repudiate their policies.

One area where the Administration appears likely to take the unilateral route is with regard to detention. The Post and others reported last weekend that the Administration was considering a new Executive Order justifying indefinite detention. If the Administration believes such detention is necessary, it should seek legislation from Congress. Along these lines, Wittes and Colleen Peppard have proposed model legislation on preventative detention. Their aim: not "to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language." Whether or not this specific legislative proposal strikes the proper balance between liberty and security, the overall undertaking — seeking legislative approval of controversial counter-terror measures — is the proper course.

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Defining Snark:

I have been reading David Denby's book, Snark. I have some problems with that book, but they are essentially the same ones that the reviewers have talked about, viz., that Denby's book is ultimately dissatisfying because it adopts a partisan view of snark.

It seems odd to me that an obviously smart person like Denby - or his editor - would not have noted immediately that when taken in total, snark in his view seems to be correlated pretty much with the right, and not the left. I suppose it might turn out that this is the fact of the matter, but it seems unlikely, and anyway is not demonstrated on Denby's evidence. What is demonstrated on Denby's evidence is that he regards snark in an ad hoc way - if he likes it, it is clever, well-aimed satire, irony, and parody, and if he doesn't, it is snark.

The fundamental problem in defining snark - and in saying that it is bad for the blogosphere - is that no one, least of all me, really wants all high-minded argument on the web, all the time. The problem is how to distinguish, on anything other than the least satisfying ad hoc, subjective, personal or - worse - political criteria satire, irony, parody from ... snark. Whatever exactly it is. We want A Modest Proposal; we don't want ... well, what? One general principle is to be reasonably understanding that humor is both subjective and risky, so as readers one should be reasonably forgiving even of efforts one thinks have flopped. Not everything is as pitch-perfect as the Onion, and even there lots of what I find funny, my mother would not have.

But beyond humor that misses, with some audiences or with all, what characterizes snark? Two things, I think. One is that it is an appeal to emotion - it is a statement with a particular affect, and the affect is an appeal to an attitude in which both writer and reader participate, but they participate in an exclusionary way. This is what makes it a branch of irony. Instead of arguing to everyone on the basis of shared reason so that, at least in principle, everyone could be included in the shared sentiment, snark depends upon exclusion. It is a refusal to offer a public argument, with the possibility of reasoned inclusion, and instead depends upon prior shared views that merely exclude because snark does not make an attempt to persuade. It is 'affectively exclusionary' in the language of moral psychology.

(Note that the greatest satire and irony appears to be exclusionary in this way - but ultimately is not. A Modest Proposal is the bitterest satire, and yet it ultimately is inclusionary, because underlying it is an appeal to a universal sentiment in which all can participate. It is not a reasoned argument, and is not an invitation to inclusion on that basis. It is, rather than argument, an invitation to see the universal moral impulse beneath the satire, and to demonstrate it by a reductio ad absurdum - an invitation to apperceive the universal value. It is a little like the Christian concept of conversion through the bearing of testimony. Despite the surface irony, in other words, truly great satire is actually an invitation to see and join the community of believers, not exclusion from it.)

Two, because snark depends upon a prior shared commitment, it is a form of question-begging argument. Not precisely a form of argument, because it is about affect, not reason. So, more precisely, snark is the affective cognate of a question-begging argument, in which the sentiment of the conclusion assumes the sentiment of the premise. It assumes that one already shares the attitudes necessary to ... share the attitudes.

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They Love to Fly and It Shows:

The WSJ reports the cost of taxpayer funded trips by members of Congress has been increasing dramatically. Costs are up 50 percent since the Democrats took control of Congress in 2007; up 70 percent since 2005, when a ban on lobbyist-funded travel was imposed, and have tripled since 2001.

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Judge Tentatively Dismisses Charges Against Lori Drew:

You may recall that this is the case in which our coblogger Orin Kerr (currently on leave from the blog because of his temporary government position) participated; he has written the leading law review article on the statute involved. Here's a brief excerpt from an L.A. Times blog:

A federal judge tentatively decided today to dismiss the case against a Missouri woman who had been convicted of computer fraud stemming from an Internet hoax that prompted a teenage girl to commit suicide.

Lori Drew of Dardenne Prairie, Mo., was convicted in November of three misdemeanor counts of illegally accessing a protected computer.

The decision by U.S. District Judge George H. Wu will not become final until his written ruling is filed, probably next week. Wu said he was concerned that if Drew was found guilty of violating the terms of service in using MySpace, anyone who violated the terms could be convicted of a crime....

Drew 50, was to be sentenced in May but Wu had delayed the sentencing until today, saying he wanted to consider the defense motion to dismiss the entire case.

A federal jury convicted Drew in November of the three misdemeanor charges but deadlocked on a felony conspiracy charge that would have carried a sentence of up to 20 years in prison....

Orin's detailed post on the subject -- from before he decided to work on the case -- is here; it's very much worth reading.

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Kmiec to Malta:

Douglas Kmiec, who served in the Justice Department's Office of Legal Counsel during two Republican Administrations and headed up the legal advisory team for Mitt Romney's presidential bid, will be named the Ambassador to Malta. After Romney withdrew from the presidential race, Kmiec threw his support behind Barack Obama and has since defended many of the President's initiatives and appointments.

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Student Article Topics on the Right to Keep and Bear Arms in Self-Defense:

If you're interested in writing about the subject — or if you want to suggest topics to incoming staffers on your law journal --check out my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda. True to its title, it lays out a way of thinking about such questions, and then identifies some particular questions that need to be answered. There should be plenty of opportunities here for student articles on those questions, whether those articles agree with my broad framework or disagree with it. Some examples, though there are many more in the article (conveniently :

  1. Is it constitutional to restrict gun possession, or handgun possession, or handgun carrying by 18-to-20-year-olds?

  2. Is it constitutional to ban gun possession in public housing? (There are a few other articles on this, but only a few, and I think there's room for deeper analyses of the subject.)

  3. What are the constitutional constraints on waiting periods for buying guns, or license fees required for such purchases? (Again some articles have touched on this, but there should be a good deal of room for further discussion.)

  4. What are the constitutional boundaries on restrictions on gun possession by people who are under indictment but haven't been convicted of any crimes?

And there are many more; check them out, if you're looking for good topics in the area — or if you have already found a good topic, and are looking for arguments you can use or counterarguments you can respond to.

Note also that these topics are important even if the Second Amendment isn't incorporated against the states, since they also arise under the at least 40 state constitutions that recognize an individual right to keep and bear arms. So you needn't put off your article until after the Court decides whether to incorporate the right to bear arms.

By the way, some people worry that if they write about a topic that has been publicly highlighted this way, they'll be preempted by others' articles that are triggered by the same public highlighting. I wouldn't worry about this too much: That's always a risk as to any topic (including old favorites such as articles dealing with an area of the law right after a prominent Supreme Court decision), but there usually end up being only a few articles written on each such topic — and those that are written often take different approaches, and come to different results. That's especially true when an article such as the one I point to identifies many different questions; chances are that there won't be many people writing about each one.

So I hope you find these helpful, whether as authors, or as law review editors (or even law professors) recommending topics to authors.

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1.2 Billion People to be Cleared of Potential Sodomy Charges:

The Delhi High Court has held unconstitutional a colonial-era law that provides: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The law was originally understood to forbid any non-procreative sex, including heterosexual sex, but has been used mainly by police and others to harass, intimidate, and threaten gays and lesbians in the country. You can download the decision in PDF format in the main story on the decision for the Times of India, here, where you'll also find numerous related stories giving reactions from gay groups, religious leaders, and legislators.

The decision is subject to review by the Supreme Court of India, but most observers expect it to stand.

The Delhi court held that the law violates fundamental constitutional rights to privacy and liberty, and denies equality to gays and lesbians. Sound familiar? The court cited Lawrence v. Texas, among many other recent foreign decisions, and quoted extensively from Justice Kennedy's majority opinion. The final paragraphs of the opinion, though referring to India's own constitutional history, resonate with Justice Kennedy's similar conclusion that constitutional protection of liberty and due process are self-consciously spacious concepts that shouldn't be limited to the specific expectations of one age or one set of people:

The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ”Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

(HT: Rex Wockner).

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Kozinski Cleared:

The Judicial Council of the U.S. Court of Appeals for the Third Circuit, which was charged with reviewing the judicial misconduct complaint against Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, has concluded its investigation. The council's opinion admonished Kozinski for poor judgment, but noted that he acknowledged his mistake and cleared him of misconduct. (HT:How Appealing) More on Above the Law.

UPDATE: For more on this story, see the WSJ Law Blog and Patterico's Pontifications. The former posted the following statement from Judge Kozinski:

I asked the Third Circuit Court of Appeals to thoroughly review this matter, and I am pleased that today’s unanimous decision reaffirms what I have said all along about my private files: They were kept on a private server and were not intended to be shared publicly. Our Ninth Circuit Court of Appeals has much important work to do, and I look forward to continuing to work with my colleagues to accomplish our goals.
The LA Times, which helped fan the flames of this story in the first place, reports on the decision, but curiously omits the fact that the judicial council cleared Judge Kozinski of judicial misconduct. Nor, I would note, does the LA Times item mention the opinion explicitly criticized media reports for misrepresenting Kozinski's conduct.

Our prior posts on the Kozinski kerfuffle are here and here.

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A Minor but Annoying Example of Unconstitutional Religious Discrimination in Virginia Marriage Law:

Marriage law in my beloved Commonwealth of Virginia has come a long way since the days when its ban on interracial marriage was struck down by the Supreme Court in Loving v. Virginia. However, I recently ran across a case of unconstitutional discrimination in Virginia marriage law that is still on the books.

My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.

Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don't have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the religious one are exactly identical in every respect other than the fact that one is religious and the other is not (e.g. - if they are equally skilled at performing weddings, have the same high standing in their respective communities, and so on).

Under the Equal Protection Clause of the Fourteenth Amendment, courts strike down state laws that discriminate on the basis of religion unless the law in question passes "strict scrutiny." To overcome the strict scrutiny hurdle, the state would have to show that the religious classification was "narrowly tailored" to the promotion of a "compelling state interest." Without going into an exhaustive analysis, I think it highly unlikely that the Virginia marriage law can meet this standard. No good purpose is served by categorically forbidding the performance of marriages by nonresident secular figures, much less a "compelling state interest." Virginia's lawyers could perhaps argue that this ensures that weddings are not performed by people with dubious morals or low social standing. But any such claim would be undercut by the fact that the Commonwealth allows any and all Virginia residents to perform weddings, no matter how disreputable they might be.

The law might also be vulnerable to challenge under the Dormant Commerce Clause, which forbids state discrimination against out of state sellers of goods or services. Some wedding officiants charge for their services, and there is something of a competitive market in this industry. By banning nonresident secular officiants, Virginia explicitly protects in-state officiants against out of state competition. Although Dormant Commerce Clause law is in a state of flux, such "facial discrimination" against nonresident competitors is clearly prohibited by Supreme Court precedent.

Although I am tempted to do so, I probably won't sue. A lawsuit would likely be more trouble than it is worth. There are easier ways around the problem. For example, we might get married in the District of Columbia (which has more enlightened marriage policies), or have Judge Smith perform a small official ceremony in DC before the larger, but legally unofficial wedding celebration in Virginia. There are various other options, too, such as having a Virginia judge present at the ceremony as well (a VA state judge has in fact kindly offered to help us out in this way). If we really have to, perhaps we can get Judge Smith declared a minister of the rapidly growing Jedi religion. Notice, however, that all the possible solutions involve either 1) doing some sort of ceremony out of state, 2) involving a Virginia resident in the process, or 3) lying to the state about the officiant's true status by pretending that he is a religious minister even though he really isn't. Thus, the religious discrimination embedded in this law isn't completely harmless.

Obviously, there are far more important forms of discrimination against the nonreligious in our society. But it's still unfortunate that this one remains on the books.

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Wednesday, July 1, 2009

Ben Barros on Stop the Beach Renourishment v. Florida Department of Environmental Protection:

Property scholar Ben Barros has an excellent post at Propertyprofblog summarizing the issues at stake in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the important takings case that the Supreme Court will consider this fall.

I'm not sure I agree with all of his points. But his analysis is a very thorough and insightful introduction to the case. I plan to write something about this case for the VC at some point in the next few weeks. Sadly, I haven't been able to do as many property-related posts recently as I would like because my fiancee and I are in the midst of purchasing and refurbishing our own new house. Ironically, being a property owner takes time away from blogging about property issues.

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Now That's Child Abuse:

From Upton v. Upton, 1996 WL 397706 (Conn. Super. Ct.) (emphasis added):

Counsel for the minor children [age 14 and 17 -EV] articulate their strong desire to be primarily cared for in their father's home. Counsel is able to argue that the children are of a sufficient age to tell the court what their preference is, and that that preference is not for a manipulative purpose. The court has some concern as to the identification of these male children with not only their father, but more damaging to them, with their grandfather. Whether or not the children feel economic pressure to side with their father is unknown.

The deed has been done, however, and only healing over time will determine whether or not these children have an adult relationship with their mother. Hating one-half of themselves will not help them into the future. The court orders that counsel for the minor children read the opinion of the court to the children, and the court further requires that the children engage in supportive counseling to assist them in expressing their anger with their mother, and with their father for bringing them into this battle, and leaving them there for so long.

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Any Nebraska Appellate Lawyers Inclined To Offer a Bit of Pro Bono Advice?

I'm doing a pro bono appellate case in Nebraska, and I'd love to chat confidentially to any readers who might be inclined to offer some free advice, especially about petitions for further review in the Nebraska Supreme Court. I think I'm set on the substantive legal issues, but I'd like a Nebraska-focused perspective on my presentation. (We have very helpful and experienced local counsel helping us already, but an extra pair of ears and eyes is always helpful as well.) If you're interested, please e-mail me at volokh at law.ucla.edu. Thanks!

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Interesting Opinion About Injunctions To Enforce Speech-Restrictive Agreements,

Perricone v. Perricone, from the Connecticut Supreme Court, officially released a week ago. Seems quite right to me as to permanent injunctions such as this one. For more on the question raised by preliminary injunctions, see this article by Mark Lemley and me.

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Anti-Defamation League Plains States Regional Director Corrects Statement on Free Speech:

The following was, I'm told by ADL headquarters, sent today to the Omaha World-Herald by Alan Potash, Director of the Plains States Regional Office of the Anti-Defamation League:

When I wrote to the Omaha World-Herald and said that “free speech does not extend to racist groups,” I misspoke. Free speech can and should extend to such groups. However, extremist or racist speech is not and should not be protected where it incites imminent lawless action that is likely to occur. ADL has a long history of defending free speech and we stand by our deep commitment to this fundamental principle of democracy. See e.g., Responding to Extremist Speech.

I'm pleased to hear it, and I agree that speech -- whether extremist or racist or not -- that "incites imminent lawless action that is likely to occur" is unprotected under Brandenburg v. Ohio (1969). I'm pretty sure that very little of the speech discussed in the Omaha World-Herald editorial to which Mr. Potash's initial statement referred would qualify under this narrow Brandenburg exception. But if indeed the exception is read as narrowly as the Court has read it (see, for instance, Hess v. Indiana (1973)), then I have no disagreement with Mr. Potash's corrected position.

Related Posts (on one page):

  1. Anti-Defamation League Plains States Regional Director Corrects Statement on Free Speech:
  2. Anti-Defamation League Regional Director Asserts That "Freedom of Speech Does Not Extend to Racist Groups":
22 Comments

Happy 10th Anniversary to Overlawyered.com:

Overlawyered, founded by my friend Walter Olson, turns ten today. I think it was the first legal blog, and I know it's still one of the best.

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"Objectively Pro-Fascist":

Roger Simon writes (thanks to InstaPundit for the pointer):

I don’t know much about Honduras, but I do know something about Iran. And Obama’s bizarre behavior, taking days to come to the conclusion any decent person knew immediately, indeed other world leaders like Merkel and Sarkozy had demonstrated as much - that there were very clear good and evil sides in the Iranian election, even though the good wasn’t perfect. (Is it ever?) So when I heard that our President had joined Chavez and Castro in condemnation of the supposed coup in Honduras, this time with immediacy, I felt a tightening in the gut. Chavez particularly was on the side of Ahmadinejad in the recent Iranian brutality.

This was a side I didn’t want to be on, didn’t want our country on. I heard many suspicious things about Zelaya, the booted Honduran president, including allegations of drug ties. Also, he was running for succor to the UN, the very organization just weeks ago I had personally seen embrace Ahmadinejad in Geneva. So when I read this message from a Honduran on The Corner, I wasn’t surprised.

Obama has strange friends. He equivocates and equalizes in disturbing ways. Is he “objectively pro-fascist” as George Orwell memorably wrote in his famous essay “Pacifism and the War“?

I give you Eric Arthur Blair. Make of it what you will. For me, the word “pacifism” could be replaced by some coinage (it’s too late here in LA for me to come up with one, if I could anyway) that encapsulates Obamaism in its supposedly even-handed international policy: “Pacifism is objectively pro-Fascist. This is elementary common sense. If you hamper the war effort of one side you automatically help that of the other.”

Now I have nothing helpful to say about the Administration's actual policy on Iran and Honduras; but I do want to repeat something I posted about the "objectively pro-fascist" locution six years ago. In a Dec. 8, 1944 column, it turns out, Orwell himself repudiated the assertion that Simon quotes:

The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit — disregard of an opponent's motives. The key-word here is "objectively".

We are told that it is only people's objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. The same argument is applied to Trotskyism. Trotskyists are often credited, at any rate by Communists, with being active and conscious agents of Hitler; but when you point out the many and obvious reasons why this is unlikely to be true, the "objectively" line of talk is brought forward again. To criticize the Soviet Union helps Hitler: therefore "Trotskyism is Fascism". And when this has been established, the accusation of conscious treachery is usually repeated....

In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like. It is this habit of mind, among other things, that has made political prediction in our time so remarkably unsuccessful.

Naturally, appeals to authority can only count for so much, especially when the authority has contradicted itself. And perhaps Orwell’s change of mind was occasioned by the change from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It is easier to be generous to those who, in your view, helped Hitler (even unintentionally) when Hitler is nearly defeated.

Yet I think that Orwell’s second thoughts, whatever their reason, were objectively the right ones. Explaining why your adversaries’ positions unintentionally help fascists is eminently legitimate. But expressly acknowledging that this effect is likely unintentional is both fairer and more likely to persuade the other side, as well as the undecided.

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Recalling Candidate Obama on Signing Statements:

A quick, further note to co-blogger John Elwood's posts on the Obama administration's use of signing statements. I'm sure someone has mentioned this in the comments somewhere, but over at Opinio Juris, Julian Ku has posted up video of then-candidate Obama denouncing the use of signing statements and promising not to use them. "Hypocrisy" is a strong word, but I'll agree with Julian that it fits in this case; likewise the shrug from President Obama's supporters that heck, all presidents do it. Yes, of course, all presidents do it. Not all presidents do it, however, after promising not to do it. It's not the fact of doing it, it's the fact of breaking the promise, and with the complete confidence that no one of any significance will call you on it, starting with the press. The video is fascinating viewing as an artifact from the media memory hole, and thanks to Julian for putting it up.

Update: Let me add a little more with this post from Roger Alford, also at Opinio Juris, noting Harold Koh (late of the Koh wars) on presidential signing statements, back during the Bush years.

Glancing over the comments, it seems to me that the issue is whether or not Obama, those who people his administration, the ABA, and others are consistent in applying the rhetoric and standards they proclaimed during the Bush years - including the vehemence and bluster and fury - to the Obama administration. One of the commenters suggests that to focus on "did he break his promise" is juvenile. Let me suggest that it is not. Not, at least, when breaking the promise involves no acknowledgment that the predecessor one attacked for doing the same thing might have been right, or at least as right as you.

I worked for a law partner once, as a very junior associate, in which it was pretty clear that we had made a mistake in analysis that might well cost the client lots and lots and lots of money. The partner told me that the way to deal with this situation was to look the client straight in the eye and say, "Consistent with our earlier advice to x, not-x."

Update 2: In the comments to Opinio Juris's post by Julian Ku, mentioned above, the always reasonable Ed Swaine responds to Julian re the charge of hypocrisy. Scroll down comments to Julian's post to find it.

Update 3: And at comment number 15 in Julian's post, a response by Charlie Savage of the NYT. Am I alone in finding the tone of Savage's comment slightly, what, affronted? The unnecessary drive by shot at Glenn Reynolds at the beginning bore a certain resemblance to, I don't know, some of the less productive comment threads here at VC! But maybe I am just reacting to the attack on Glenn - not because Glenn is beyond attack, but because this was pure snark, a little sneer before getting on with things. (I am struggling with my Good Angel and Bad Angel over whether to post a snarky thing of my own - entirely on the tone, not substance, of Savage's comment. I don't believe in snark. But sometimes I do give way to the Dark Side.)

Update 4: I'm pleased to note that Charlie Savage has apologized to Glenn Reynolds for the rather snarky opening of his OJ comment. It's been added into the comments section.

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Ricci Reactions from Heartland:

The Heartland Institute rounds up reactions to Ricci v. DeStefano, and the case's relevacne to Judge Sotomayor. Comments from Professors Ronald Rotunda and Rick Esenberg, Ilya Shapiro (Cato), Maureen Martin (Senior Senior Fellow for Legal Affairs, Heartland), and me, among others.

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Did the Court Move Right?

It's somewhat predictable. Another Supreme Court term ends, and commentators make sweeping generalizations based upon the result in a handful of cases. Thus, pundits proclaimed the arrival of a conservative revolution after the October 2006 Term, only to mount a hasty retreat after the October 2007 term failed to follow the script.

Wednesday's Washington Post features a story with a headline proclaiming this term saw a "move to the Right." Yet the most notable, and surprising, decisions this term were not sudden shifts to the Right, but the Court's failure to do so — it's failure to declare portions of the Voting Rights Act unconstitutional in NAMUDNO, its failure to find preemption in Wyeth v. Levine and Cuomo v. Clearing House, its failure to endorse broad executive power to disregard environmental laws in NRDC v. Winter. As the Post story acknowledges, this was more a Court "on the verge" than it was a Court clearing new ground.

This court may be more-likely-than-not to decide any given case in a "rightward" direction, but it is not particularly likely to move the law to the Right. So, for example, in Osborne the Court rejected the invitation to create a constitutional right to post-conviction DNA testing. This is a "conservative" result, but it was not a change in the law. The failure to recognize new constitutional rights does not a conservative shift make. Four years in to the Roberts Court, it's hard to identify a meaningful rightward shift comparable to its continued leftward shifts in many areas (as in Boumediene, Kennedy v. Louisiana, Mass. v. EPA, Caperton, etc.).

As I have maintained for some time — since pundits were rushing to proclaim that the Roberts Court had become radically conservative after the October 2006 term — the dominant features of the Roberts Court are a) a conservative minimalism that favors narrow holdings and generally seeks to maintain precedent, and b) the idiosyncratic jurisprudence of Justice Kennedy, which controls the outcome (and the tenor) of so many decisions. The end result is a moderately conservative Court, but one that is almost as likely to lurch Left as it is to inch to the Right.

Next term may well challenge my view, however. Indeed, it could turn out to be quite unpredictable (and revealing). The Court has accepted quite a number of cases that may force it to address big questions, including the Appointments Clause (Free Enterprise Fund v. PCAOB), regulatory takings (Stop the Beach Renourishment v. Florida DEP), and the Commerce Clause (Comstock), and that's not even counting the reargument in Citizens United or the prospect of another gun rights case. Throw a new justice into the mix, and we're going to have fun with this one. Given the substance of some of these cases, I suppose it's a no-lose proposition for me. Either the Court confirms the line I've been taking, or it shows some interest in curtailing federal power. Any bets which it will be?

Related Posts (on one page):

  1. Did the Court Move Right?
  2. Is the Roberts Court Suddenly "Minimalist"?
28 Comments

Tuesday, June 30, 2009

Cross Border Aspects of

the Obama administration's white paper on financial regulation reform. (I posted a version of this over at Opinio Juris, but I wanted to put a revised version of it up here, as I plan to do a series of posts commenting on various parts of the Treasury Department's new report. In some ways, this is a bit backwards, to start with the cross-border aspects, given that they occupy the smallest part of the report. But let me get it up now, and then go to the beginning and make a variety of comments in several posts.)

I spent the plane flights back and forth to Prague over the weekend mostly reading, uninterrupted and straight through, the Treasury Department’s new report, Financial Regulatory Reform: A New Foundation: Rebuilding Financial Supervision and Regulation (June 2009). (I’ve linked here to the 88 page pdf, which curiously seems to be undated; a useful resource overall is the new Treasury Department website, financialstability.gov.) Here I want to comment briefly on the international and cross border aspects of the Obama administration’s reform proposal.

The specifically transborder aspects of the reform proposal are one of the five fundamental principles for regulatory reform underlying the proposal. They fall into broad categories that approximately mirror what that the proposal says domestically:

raise common regulatory standards for financial institutions, particularly capital standards and liquidity buffers;

raise common regulatory standards for supervision of banking institutions but also any other financial institution systemically connected to the financial system, particularly with regards to leverage, but also with regards to compensation and attendant incentives to risk-taking and moral hazard;

undertake financial markets regulatory reform, particularly to create conditions for the emergence of central exchanges for credit derivatives, regulation of securitization, and other financial markets reforms;

raise and develop common standards for accounting and measurement of financial indicators, including fair value (’mark to market’) accounting; and

various other matters, such as the role and regulation of rating agencies (some of these other matters appear to be quite unrelated to financial regulation reform as such, e.g., terrorism financing).

As far as the proposals go on their own, perhaps the most striking aspect is the lack of a position on the so-called “rules” versus “principles” debate. This was almost certainly a deliberate agnosticism on the issue. Reduced to a sentence, this is the fundamental question of the approach to regulation - go with specific rules (the historically American approach, and which tends to mean rules that get more and more specific over time) or a more discretionary-based use of principles that leave much flexibility to regulators, and which relies in part on the willingness of regulated parties to respond to regulatory “signals” short of a court order or the threat of legal action. The issue is not addressed as such in the white paper, although the thrust of the reform proposals seems to indicate more specific rules that would be common standards for all leading participants; perhaps this is compatible with either a rules-based or principles-based approach, but perhaps not. (Steve Schwarcz has a useful paper from 2008 on this topic, “The Principles Paradox“; it serves both as an introduction to it and an intervention in the debate.)

As to implementation, the white paper is striking for not offering or endorsing any kind of binding international mechanism. Recall that for many governments and world leaders - Sarkozy, for example - the two previous global economic summits were opportunities to press for new, or newly-empowered, economic institutions able to enforce common standards and rules in matters running from accounting standards to (at the most ambitious) a common global reserve currency. The US Treasury position embraces none of that. Instead, it endorses international regulatory coordination, regulatory cooperation, accomplished largely through networks of national regulators.

That seems to me the right approach as a matter of policy and not just practicalities of politics, but it is striking that there is not even a nod in the direction of any kind of binding regime or even genuinely binding common standards. The proposal does embrace the commitment from the last 2008 global economic summit for a “college” of financial supervisors - in effect, a network of national financial regulators - but the proposal for this “college” as finally adopted is a pure “network” one, not one with any binding powers. The Treasury white paper embraces a substantive transnational cognate for each of the essential proposals for internal US reform, but then treats them as common, or homologous, standards to be worked out by leading economies internally - presumably on the assumption that each will conclude that a roughly common standard is in its interest - without suggesting any kind of binding regime, let alone binding governing body.

Given that general “network” and “common standards” approach, it is unsurprising that the white paper does not address the role of the Bretton Woods institutions. It does not discuss proposals for the IMF to take on new roles, for example. Perhaps least surprising of all, nothing in the proposal suggests that the IMF or anyone else offer something besides the US dollar as the global reserve currency. The white paper does not address issues specific to the developing world, nor does it address issues specific to the so-called “BRICs” (Brazil, Russia, India, and China). Again, this is unsurprising in a paper that is about financial institution and market regulation, not monetary or fiscal policy. However, a question I suppose many outside the United States will have is whether the ‘networks’ approach for elaborating and persuading countries to adopt roughly common, or at least “homologous,” regulatory standards will be enough to avoid regulatory arbitrage by financial institution and financial market players among global economies.

My own view is that the white paper takes the right approach to the transborder question by adopting the networks approach. The fundamental differences of economic conditions for leading players - China, the United States, Europe and its various key economies, Japan, etc. - mean that they will not share common ground on some core issues. But arguably most of those core issues are monetary and fiscal policy, rather than financial regulation on its own, thus leaving sufficient room for common, or at least homologous, standards in this area. And if there were not sufficient agreement for common standards, it seems quite unlikely that the solution to that would be the creation of a highly defection-prone, purportedly “binding” standard.

The leading risks, it seems to me (on first read, anyway), posed by the networks approach are:

First, the “common” standards reached by the networks turns out to be a little of this and a little of that, but not a consistent approach with respect to any particular leading economy, so that the common standard is so much a common denominator among unlike economies that it serves well no one in particular.

Second, the elaboration of a networks-based common standard promises more than it can actually deliver in the way of implementation - but it leads to a sense that all is well because a network has pronounced common standards, whereas in fact, regulatory arbitrage among countries is rife, yet it is hard to say so without giving political offense to one’s network partners.

Third, the collective of regulators might simply get it badly wrong, as George Soros noted in a recent op-ed in the Financial Times (to which we might add, Basel II capital adequacy standards have not exactly come out unscathed from the current crisis).

That said, and leaving aside other kinds of criticisms of the Treasury approach (which are far from insignificant, but not taken up here, as being about domestic US policy), the networks approach taken by the Obama administration seems to me the right one. Both politically right and right as a matter of the correct policy approach.

9 Comments

What Happens to the Walmart Effect

if and when China decides to stop exporting the "glut of global savings"?

The Walmart Effect was the claim (accepted pretty broadly as having a decent empirical basis, even given the disputes) that Walmart, by lowering prices at the downmarket end of things, added significantly to American spending power and standard of living. And particularly to consumers at the lower end of the economic scale. The Walmart Effect was partly Walmart stores themselves, but also the knock-on effects on the competition. Even if one accepted the effect, the size of its contribution to American consumption power was argued. And the extent to which it offset the losses to workers and wages was also hotly debated.

Charles Fishman set out the basic claims in his The Walmart Effect. But in many ways the thesis took on a whole different life when it was partly endorsed by Democratic economist Jason Furman, in a well-known essay. As described by the Washington Post website whorunsgov.com:

[H]e also praised Wal-Mart in a report that liberals still fiercely decry. Furman defended the discount super-store, calling it a “progressive success story” by disputing the notion that its business model hurt the wages of retail workers in the industry.

In a report, Furman basically estimated that Wal-Mart’s price reductions saved Americans nearly $263 billion, while disputing the argument that Wal-Mart hurts retail workers’ wages. Furman estimated that wage losses for retail workers had decreased by a maximum of about $5 billion a year. He concluded that society is better off as a result of Wal-Mart’s business model and said that observers should focus on attacking problems in the larger retail sector as opposed to the mega-store’s wages.

Furman downplays the angry outcry in response to his paper. “There's a zero-sum mentality among some segments of the left," he said. “If someone is doing well, then someone else must be doing poorly."

That's a quick sketch of pretty well known policy history; there's much argument even today over true, untrue, extent, etc. That's not what interests me today. Rather, even taking into account the many impressive features of how Walmart runs its business to maximize efficiency and lower prices, it still seems pretty clear, especially in retrospect, that to a considerable extent, Walmart for years has consisted of simply being the retailer of goods whose purchase and consumption by Americans the Chinese government has decided to subsidize - or, much more precisely, as we can see today, finance on credit - and in effect serve as a conveyor belt for Chinese goods but also Chinese savings.

This keys back to the "global glut of savings" hypothesis put out by Alan Greenspan as an explanation for why the Fed under his stewardship would not have been able to prevent the asset bubble of the last few years. However, it is laid out perhaps most persuasively as a general argument by the renowned financial commentator at the Financial Times, Martin Wolf, in a John Hopkins Press book under a series edited by Francis Fukuyama, Fixing Global Finance. The book was published in 2008, but is based upon lectures in 2006 or so, so much of the analysis precedes the immediate crisis; nonetheless, it is exceptionally clear on the arguments over the global savings glut. (Without, so far as I can tell on a first read, however, embracing Greenspan's strongest contention that the Fed could not stop the tsunami of excess savings from flooding American shores, but that's another discussion.)

Assume that something like the global savings glut hypothesis is true, and that it is in large part a glut of savings from China flowing into the US economy especially. Wolf, Greenspan, Peter Mandelson (whose op-ed on this topic I discuss in excruciating detail here), and many others have called for a readjustment to this savings glut. It principally requires an increase in Chinese domestic consumption to absorb its savings rather than shipping the savings abroad.

The macroeconomic argument, I take it, is excellent. What I want to point out, however, is that if and when put into place, one of the casualties might be a large part of the Walmart Effect. As noted, when it was under discussion, back in the bubble period, it was said by Furman to amount to some $263 billion (offsetting some $5 billion in wage effects). This meant several thousands of dollars per US family and, assuming that it was mostly received by lower income households, even bigger consumption gains for the poor. To the extent - which I would suggest although not on any actual evidence, alas - that the Walmart Effect could be renamed the China Credit Facility, then a move to rebalance global savings flows might well hit poorer American families. How much? Well, certainly a large part of it has evaporated as the financing from China has, if not precisely evaporated, shifted from financing private consumption to a much larger portion devoted to financing US government public consumption. So some part is gone or already evaporating at that stage.

But we have yet to see a full policy of rebalancing, and without any basis for putting in numbers, let me suggest that it might be a considerable part of what is left of the original Walmart Effect. Or am I wrong about the basis of the effect - wrong, that is, in asserting that the Walmart Effect is largely a China Credit Facility effect?

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Is Melendez-Diaz Endangered?

Lyle Denniston thinks it might be. I raised this issue (although before cert was granted in the Briscoe case) in a post yesterday morning.

Related Posts (on one page):

  1. Is Melendez-Diaz Endangered?
  2. Souter, Sotomayor, & Melendez-Diaz v. Massachusetts:
14 Comments

McDo and La France Profonde:

This witty article in Slate, How McDonald's Conquered France, has sold me on Mike Steinberger's new book, Au Revoir to All That: Food, Wine, and the End of France, from which the article is drawn. Were you aware, for example, that "by 2007, France had become the second-most profitable market in the world for McDonald's, surpassed only by the land that gave the world fast food"? But the article, and presumably the book, walk through the strategy by which McDonald's French managers persuaded the French public that McDo was, indeed, French. Amazon one-click, here I come.

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From the Speaker of the California Assembly,

in a Q & A with the L.A. Times:

How do you think conservative talk radio has affected the Legislature's work?

The Republicans were essentially threatened and terrorized against voting for revenue. Now [some] are facing recalls. They operate under a terrorist threat: "You vote for revenue and your career is over." I don't know why we allow that kind of terrorism to exist. I guess it's about free speech, but it's extremely unfair.

Let's just savor it again, in slow motion. A terrorist threat: "You vote for revenue and your career is over." Why do we allow that kind of terrorism to exist? I don't know. It's free speech -- I guess. But it's unfair. Extremely.

Thanks to InstaPundit for the pointer.

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Pipe Bombs Unprotected by the Second Amendment:

So holds the U.S. Court of Appeals for the Eleventh Circuit, in United States v. Tagg: "Unlike the handguns in Heller, pipe bombs are not typically possessed by law-abiding citizens for lawful purposes." (There's more, so if you're interested, check out pp. 10-14 of the opinion.)

The general analysis strikes me as right, for reasons I discussed in my article (at least as to the right to bear arms in self-defense, which is all I focused on). But I do think the reasoning in this sentence (from a case quoted in footnote 5) is not quite right:

[W]e cannot conceive of any non-violent or lawful uses for a pipe bomb.

Of course there are non-violent uses for a pipe bomb, uses that would be lawful except for the illegality of pipe bombs. One can have fun blowing them up, quite possibly fun that is relatively safe, much like people have fun with fireworks or with potato guns, or much like people have fun firing guns at pieces of paper, even without any desire to train or to compete. ("[W]e cannot conceive of any ... lawful uses for a pipe bomb" must refer to something more than just the fact that pipe bombs are illegal, or else one could equally well have said it about a total ban on all guns or on handguns, given that possessing them would then no longer be lawful.)

Now it may well be that such entertainment uses of pipe bombs are not socially valuable enough to justify allowing their private possession; that's a plausible argument, and it might even be what the court was driving at. But the court made its argument not by discounting entertainment value, but by pretending that it doesn't exist.

For my criticism of a similar factual error in the First Amendment context (as to the murder manual case, Rice v. Paladin Enterprises), see PDF p. 26 & n.124 of my Crime-Facilitating Speech article. Again, this doesn't necessarily tell us how highly we should value such entertainment. Perhaps it's proper to ban books, weapons, drugs, or whatever else that pose sufficient risk of sufficiently serious harm, if their value seems to consist almost entirely of entertainment. As I said, I do think that pipe bombs are not protected by the Second Amendment or state constitutional right to bear arms provisions (at least by their right to bear arms in self-defense components).

But I don't think that we should find it so hard to "conceive of" people enjoying things that go "Boom!" If some nonviolent use is too frivolous to outweigh the harm that the bad uses cause, say so, but don't assume that such nonviolent uses don't exist.

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The Limits of Morse v. Frederick:

I've often heard people defending various K-12 speech restrictions by citing Morse v. Frederick (the BONG HiTS 4 JESUS case). Many of these people think Morse is wrong, but argue that it's binding precedent.

But as to many of these arguments (see some in this thread), Morse is often not very relevant, much less binding. One premise of the Morse majority is that the speech wasn't "political":

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

Two of the five Justices in the majority (Justices Alito and Kennedy) stressed this in the very first paragraph of their opinion:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no sup-port for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

What's more, three of the four dissenters agreed: "This is a nonsense message, not advocacy."

Now, as I argued when the decision came down, I think the Justices were wrong to say that Frederick's message was nonsense, or even just nonpolitical. The majority said "BONG HiTS 4 JESUS" "could be interpreted as an imperative ... 'smoke marijuana' or 'use an illegal drug,'" or "as celebrating drug use -- 'bong hits [are a good thing],'" two messages that the majority saw as constitutionally indistinguishable. But these messages indeed "can plausibly be interpreted as commenting on any political or social issue": They implicitly suggest that drug laws are a bad idea ("violate law X" often tends to suggest that, especially as to laws that are quite controversial), which is a comment on a political issue. And they suggest that drug use is a good idea, which is a comment on a social issue.

Yet while the Court applied its own test incorrectly to these facts, it hardly follows that it should apply its own test incorrectly to other facts as well, especially ones that are quite far removed from these. Perhaps Morse supports the view that highly opaque statements might be seen as nonpolitical. Perhaps it supports the view that mere advocacy of illegal conduct is nonpolitical, though I think that is inconsistent enough with the rest of the Court's precedents that I don't think it's right to read Morse even that broadly.

But surely the T-shirt below (to give the example that triggered this post) clearly "can plausibly be interpreted as commenting on any political or social issue":

It is saying that abortion is immoral, so people shouldn't engage in it. And it is probably also saying that it is so immoral that abortion should be legally restricted. (That abortion is currently constitutionally protected doesn't matter: That just means that legally restricting it would require either electing Presidents who appoint enough Justices who would hold that abortion is constitutionally unprotected, or enacting a constitutional amendment to the same effect -- politically quite difficult, especially at this point, but certainly calls for this are political speech. Plus of course even if abortion can't be entirely banned, it can be restricted in various ways, which the T-shirt likely implicitly calls for as well.)

Now indeed if the T-shirt said something like "Kill abortionists," then perhaps the Morse analogy would govern. I would still say that such a statement is political speech and thus Morse shouldn't apply, but I can see the argument that statements in Morse distinguish, in the K-12 public school context, between advocacy of illegal conduct and advocacy of changing the law (or changing social attitudes). But nothing in Morse would extend to the T-shirt mentioned above.

I can understand why many people are upset at Morse. I can also understand why many people like Morse and wish it had gone further, perhaps (as Justice Thomas suggested) to give K-12 school administrators blanket authority to restrict student speech. But if we're looking at what the language of Morse actually means, it seems to me that we need to acknowledge that it's distinctly limited in its scope.

Related Posts (on one page):

  1. The Limits of Morse v. Frederick:
  2. Junior High School Student Ordered Not To Wear Pro-Life T-Shirt:
31 Comments

Anti-Defamation League Regional Director Asserts That "Freedom of Speech Does Not Extend to Racist Groups":

[UPDATE: The statement I criticize below has now been corrected by Alan Potash.]

That's the view of Alan Potash, the ADL's regional director for Nebraska, Iowa, and Kansas. Pretty appalling, it seems to me — simply false as a statement of current free speech law (which it sounds like it is), and deeply misguided as a matter of what the law should be.

And in the wake of attempts to condemn Israeli policies as racist, it should be pretty clear to American Jews that such a position could easily be turned around them. After all, any university administration that takes the view that Israeli actions towards the Palestinians are racist could easily conclude that defenders of those actions are racist as well, and therefore suspended or driven off campus. Or how about Orthodox Jews (and perhaps quite a few other Jews as well) who believe that homosexuality is against God's will? Once "racist groups" lose their free speech rights, it's hard to see why "homophobic groups" wouldn't equally lose them.

What about groups that express deep religious hostility, as I've heard many Jews do with regard to the Jews for Jesus? Perhaps such hostility is justified, or perhaps not, but after "racist groups" lose their First Amendment rights, "religiously bigoted groups" might come close behind. I think free speech protection even for the "ideas we hate" is the right approach in general; but even if the ADL is narrowly focused on its own community's concerns (as some groups well might), it should still, I think, reach the same result.

Note that the director isn't even making the ostensibly narrow arguments in favor of banning speech that advocates violence, or that uses epithets, or some such. So long as you are a "racist group[]," "freedom of speech does not extend" to you. I hope the national ADL promptly condemns Mr. Potash's statements.

Related Posts (on one page):

  1. Anti-Defamation League Plains States Regional Director Corrects Statement on Free Speech:
  2. Anti-Defamation League Regional Director Asserts That "Freedom of Speech Does Not Extend to Racist Groups":
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Sunstein on Hold:

It appears confirmation of Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB will be held up because Senator Saxby Chambliss (R-GA) is concerned about Sunstein's embrace of certain animal rights arguments. The Hill reports:

Chambliss worries that Sunstein’s innovative legal views may someday lead to a farmer having to defend himself in court against a lawsuit filed on behalf of his chickens or pigs.

Chambliss told The Hill that he has blocked Sunstein’s nomination because the law professor “has said that animals ought to have the right to sue folks.”

Indeed, in his 2004 book, Animal Rights: Current Debates and New Directions, Sunstein wrote: “I will suggest that animals should be permitted to bring suit, with human beings as their representatives, to prevent violations of current law.”

More specifically, he wrote: “Laws designed to protect animals against cruelty and abuse should be amended or interpreted to give a private cause of action against those who violate them, so as to allow private people to supplement the efforts of public prosecutors.”

Chambliss said he is also concerned about Sunstein’s potential impact on “a number of other issues relative to agriculture.”

The story also suggests that Chambliss could lift the hold once he has had the opportunity to speak with Sunstein directly some time after the July 4 recess. Sunstein's nomination has already cleared committee, and I would be surprised if there were a serious effort to prevent his confirmation.

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Is Minnesota's Long Nightmare Over?

It appears so (at least insofar as not having two Senators is a "nightmare" and the U.S. Supreme Court declines to enter the fray).

[OOPS. I see now that Eugene beat me to this.]

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Coleman v. Franken Decided by the Minnesota Supreme Court,

unanimously in Franken's favor. Thanks to Barton Jacka for the pointer.

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Junior High School Student Ordered Not To Wear Pro-Life T-Shirt:

The T-shirt -- judging by the appendix to the complaint -- seems to be this one:

And as I read the school district's argument (p. 13), the district admits this, arguing that the then-7th-grader's T-shirt violated a school dress code banning any "suggestion of tobacco, drug or alcohol use, sexual promiscuity, profanity, vulgarity, or other inappropriate subject matter."

That strikes me as a clear First Amendment violation under the Supreme Court's decision Tinker v. Des Moines School Dist. (1969). If junior high school students have a constitutional right to wear a black armband to protest the Vietnam War, at least until there's some serious evidence that the armband is likely to cause substantial disruption, they must have an equal right to wear a T-shirt to protest abortions.

And nothing in the school district's motion suggests that the student was ordered to change shirts because of a risk of disruption; the school district apparently thinks that it can just categorically ban any T-shirts that deal with this "inappropriate" "subject matter." One might argue, as Justice Thomas has (and as Justice Black before him had), that Tinker should be overruled; but it's the law, and school districts should comply with it.

The case is discussed in more detail -- though not as to the First Amendment claims -- in T.A. v. McSwain Union Elementary School Dist., 2009 WL 1748793 (June 18). For a similar case, which apparently led to an agreement by the school to allow such T-shirts, see here.

Related Posts (on one page):

  1. The Limits of Morse v. Frederick:
  2. Junior High School Student Ordered Not To Wear Pro-Life T-Shirt:
128 Comments

You Can't Hide Your "Lying Eyes":

From Wood v. State (Tex. Ct. App. June 18):

During the punishment phase of appellant’s trial [for aggravated assault with a deadly weapon], Sheriff David Halliburton testified that appellant had a tattoo on each eyelid. The word “Lying” was on one, and “Eyes” on the other. Appellant objected to the testimony stating that it was not relevant. The trial court overruled the objection. The State mentioned the tattoos in its closing argument on punishment, arguing that they showed appellant’s lack of respect for society.

At the punishment phase of a criminal trial, evidence may be presented as to any matter that the court deems relevant to sentencing. [In Texas, sentencing, even in noncapital cases, is often done by a jury. -EV] ... The tattoos were ... used ... to show his disregard for the truth and his moral character. A person’s tattoos can reflect his character and demonstrate a motive for his crime. Conner v. State, 67 S.W.3d 192, 201 (Tex. Crim. App. 2001). The trial court did not err in admitting evidence of appellant’s tattoos....

I'm not sure whether "lying eyes" does indeed show a person's "lack of respect for society" in the sense of lack of respect for moral or legal norms (as opposed to a lack of respect for its conventions of what's attractive and what's repulsive or even disgusting). "Lying eyes" could mean eyes that deceive their owner. Or it could mean eyes of a liar (which in the song were actually the part of the body that revealed the lie). Yet even if it means the latter, I doubt that people who have such tattoos are really admitting to being any more prone to lying than the average person.

Still, the threshold for admissibility of evidence is generally pretty low, especially at sentencing, where the question isn't just what a person did but what sort of person he is overall. And it's for a jury to determine just how much a person's own statements -- including his tattoos -- say about his character; so the court probably got it right as a matter of the admissibility of evidence, though if I were a juror I wouldn't give it much weight.

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Not Dictum:

I've heard some people argue that the Ninth Circuit's holding (in Nordyke v. King) that the Second Amendment is incorporated against the states was "dictum" -- and thus not really legally binding, even on district courts in the Ninth Circuit and other panels of the Ninth Circuit -- because the court went on to hold that the Second Amendment (even as incorporated) doesn't preclude the ordinance involved there, which was a restriction on gun possession on county property. (Likewise, people made the same argument about the Fifth Circuit's pre-Heller holding in United States v. Emerson that the Second Amendment secures an individual right, but doesn't preclude the particular statute involved in that case.) The conclusion that the Second Amendment binds state and local governments, the argument goes, isn't really necessary to the result because the court could have reached the same conclusion by simply assuming without deciding that the Second Amendment is incorporated. Therefore, the incorporation conclusion is mere "dictum."

I think this is a mistaken conception of dictum, but much scholarly (and some judicial) ink has been spilled on the theoretical question of how dictum should be defined. Instead, I just wanted to repeat something I said earlier (in the Emerson context): If Nordyke v. King is dictum, then some extremely important Supreme Court rulings are dictum, even though they have to my knowledge never been treated as such. Here are three:

1. Jackson v. Virginia (1979). Jackson claimed that there was insufficient evidence to convict him in his state trial, and that she had a federal Due Process Clause right to have her conviction reversed on these grounds. To resolve this question, the Court first had to figure out whether the Due Process Clause secured such a right (a matter that was quite unresolved at the time, and that was contested by the Virginia prosecutors). The Court addressed this in some detail, and concluded that the Due Process Clause secured such a right. But it concluded that the right was limited in scope: The Due Process Clause is violated only if "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." This condition wasn't satisfied in this case, so Jackson lost.

2. Strickland v. Washington (1984). Strickland claimed that his lawyer provided ineffective legal assistance, and that this violated the Sixth Amendment right to counsel. To resolve this question, the Court first had to figure out whether the Sixth Amendment secured such a right (likewise, a matter that was quite unresolved at the time). The Court addressed this in some detail, and concluded that the Sixth Amendment secured such a right. But it concluded that the right was limited in scope: The Sixth Amendment is violated only if "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "[j]udicial scrutiny of counsel's performance must be highly deferential . . . [--] a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" This condition wasn't satisfied in this case, so Strickland lost.

3. Yesterday's Safford Unified School Dist. v. Redding. Redding claimed that she was entitled to damages for violation of the Fourth Amendment, because a near-strip-search at school violated her Fourth Amendment rights, and those rights were well enough established that the defendants didn't have qualified immunity against damages. To resolve this question, the Court first had to figure out whether her Fourth Amendment rights were indeed violated. The Court addressed this in considerable detail, and concluded that there was indeed a Fourth Amendment violation. But it concluded that the rule wasn't well enough established, so Redding lost. (If you think that for some reasons qualified immunity cases are a different category, even after reaching the merits first became optional with the demise of Saucier v. Katz, then ignore this example and focus on the three others.)

4. Everson v. Board of Ed. (1947), an incorporation case. Everson claimed that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Establishment Clause against the states, and the policy violated this incorporated Establishment Clause. To resolve this question, the Court first had to figure out whether the Fourteenth Amendment did indeed incorporate the Establishment Clause. The Court addressed this fairly briefly, and concluded that the Fourteenth Amendment did incorporate the Establishment Clause. But it concluded that the Establishment Clause didn't bar all evenhanded government benefit programs that covered religious schools as well as secular schools. The threshold for violation of the Establishment Clause wasn't met in this case, so Everson lost.

5. So now we have Nordyke, another incorporation case. Nordyke claims that a particular government policy violated the Fourteenth Amendment, because the Fourteenth Amendment incorporated the Second Amendment against the states, and the policy violated this incorporated Second Amendment. To resolve this question the Ninth Circuit panel first had to figure out whether the Fourteenth Amendment did indeed incorporate the Second Amendment. The court addressed this in considerable detail, and concluded that the Fourteenth Amendment did incorporate the Second Amendment. But it concluded that the Second Amendment gives the government a fairly free hand to restrict gun possession on government property. The threshold for violation of the Second Amendment wasn't met in this case, so Nordyke lost.

My point is simply that all five of these examples (perhaps with the exception of item 3, if you think qualified immunity cases are somehow different) are on par with each other. If you think that Nordyke's incorporation discussion is dictum and not strictly binding, the same would have been true of all the other cases, at least until the first decisions actually finding liability under those cases were reached. But, as I said, to my knowledge no-one has treated the core legal reasoning of Jackson, Strickland, and Everson as dictum. Nor should they do the same as to Nordyke.

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Is the Roberts Court Suddenly "Minimalist"?

Jack Balkin ponders what may account for the Roberts Court's "sudden minimalist turn." It's an interesting post, but I reject Balkin's premise. There's nothing "sudden" about the Roberts Court's minimalism. Rather, a conservative minimalism has been the defining characteristic of the Roberts Court and, as a general matter, of the two newest justices. In this regard, NAMUNDO and Ricci, are of a piece with Wisconsin Right to Life, Ayotte, Gonzales v. Carhart, NRDC v. Winter, and many other cases in which the Court either adopted a very narrow, incremental holding or avoided reaching an underlying constitutional question. While there are exceptions, the Roberts Court has been minimalist across most areas of the law -- and most (though not all) exceptions to this pattern have been more "liberal" than "conservative" (see, e.g. Boumediene, Mass v. EPA). Chief Justice Roberts and Justice Alito certainly endorsed a non-minimalist outcome in Parents Involved, but the ultimate holding of the Court was much narrower.

As I see it, the Chief Justice and (to a slightly lesser extent) Justice Alito are committed minimalists because it comports with their views of the proper role of the judiciary. They believe that narrow, incremental holdings preserve the Court's legitimacy. If I am correct, we don't need to explain the Court's minimalism in cases like NAMUNDO and Ricci. Rather, we need to explain the Court's departure from a minimalist approach -- and we may need to do that soon if (as some expect) the Court remakes the law of campaign finance when it rehears Citizens United.

Related Posts (on one page):

  1. Did the Court Move Right?
  2. Is the Roberts Court Suddenly "Minimalist"?
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One More Case . . .

The Supreme Court has set Citizens United v. Federal Election Commission for reargument in September -- before the next term of the Court begins. So it would seem to be the last case of the October 2008 term. Yet unless the Justices turn it around super-quickly, the decision will be handed down during the October 2009 term, and in all likelihood the Court will hear the case with Justice Sotomayor instead of Justice Souter.

SCOTUSBlog reports on the briefing schedule and previews the argument here. Rick Hasen further previews the case on his Election Law Blog and on Slate, and he rounds up commentary on the case here and here.

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Betting Blind on ACES:

Yesterday I had an NRO column on the just-passed House climate bill. Here's the intro:

Last Friday, the House of Representatives narrowly passed a massive climate-change bill that few, if any, members of Congress had actually read. The legislation would impose the first-ever limits on emissions of carbon dioxide and impose a raft of other regulatory measures, while simultaneously ensuring that key constituencies are protected from climate policy’s pinch. The bill is one step closer to becoming law, and yet most of our elected representatives could not tell you much of what it contains.
It is relatively certain that few, if any, members of Congress had read the bill before voting on it. Why? For one thing, House leaders dropped 300 pages of amendments 3am Friday morning and a complete copy of the bill language incorporating the amendments was still unavailable during the debate; not even the House clerk had one.

Meanwhile, Clive Crook understands how ridiculous the Waxman-Markey bill is, while Paul Krugman has a conniption over "treason against the planet" even though he supported the bill and it passed. Roger Pielke Jr. wonders whether the bill's sponsors really understand offsets, and Gregg Easterbrook observes how cleaner coal facilities are being blocked while we wait for "FutureGen" coal facilities that may never appear. On a sunnier front, the NYT reports on promising efforts to make ethanol from algae that can be used as a fuel or feedstock for plastics.

Related Posts (on one page):

  1. What's in Waxman-Markey?
  2. Betting Blind on ACES:
7 Comments

A Bad Idea from Judge Posner:

Over on the Becker-Posner blog, Richard Posner is again contemplating the [bleak] future of the newspaper industry. The problem (as I, too, have blogged about in the recent past) is a serious one -- if "the newspaper" as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place?

"[W]hile in many industries a reduction in output need not entail any reduction in the quality of the product, in newspaper it does entail a reduction in quality. Most of the costs of a newspaper are fixed costs, that is, costs invariant to output--for they are journalists' salaries. A newspaper with shrinking revenues can shrink its costs only by reducing the number of reporters, columnists, and editors, and when it does that quality falls, and therefore demand, and falling demand means falling revenues and therefore increased pressure to economize--by cutting the journalist staff some more. This vicious cycle, amplified by the economic downturn, may continue until very little of the newspaper industry is left.

His proposal for reform, however, goes into the "Cure Worse Than Disease" file:

"Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

It's hard for me to summarize why this is so terrible an idea. One (immense) problem: (1) There is, and can be, no special copyright law for "newspapers," because the definitional (not to mention the First Amendment) problems are such that it is simply impossible to imagine such a thing coming into existence. ["Is the Volokh Conspiracy a 'Newspaper' within the meaning of the Posner Proposal? Slashdot.com? Facebook.com? Discuss"] So what Judge Posner is proposing is, necessarily, an Internet-wide prohibition on linking or paraphrasing without the copyright holder's consent. Given (2) the fact that virtually all content on the Internet (at least if it displays a "modicum of creativity" and is not simply copied from another source verbatim) is protected by copyright the moment that it is placed into a readable file, that's it for the Internet as we know it - any act of linking or paraphrasing such as this one will require copryight-holder consent.

So here we've gone and invented this fabulous global machine for linking and paraphrasing and sharing information, but nobody will be able to use it because we want to preserve the New York Times' business model. Hmmm.

My advice to the New York Times: don't count on that. Start thinking about how you can make money -- large quantities of it -- in a world in which linking and paraphrasing are pervasive and unrestricted. It's not going to be easy - if it were easy, we'd all be doing it already. But millions upon millions of people visit your website, every day - because you are the New York Times, and people value the product you produce. There's a way, I'm pretty certain, of converting that into income, though I don't know what it is and as far as I can tell neither does anyone else at the moment. Google, though, makes a lot of money giving away information, and you can too. Don't waste your time hoping that copyright law is going to come to your assistance, for it will not.

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Is Justice Thomas "Now Our Greatest Justice"?

Tom Goldstein has a thoughtful and interesting post on SCOTUSBlog summarizing the just-sortof-concluded Supreme Court term and looking forward to the next. I think Goldstein overstates the conservative trajectory of the Court; the judiciary's inertial momentum to the left remains strong, and the Roberts Court, as a whole, is less conservative than many claim. That disagreement aside, I think Goldstein makes some very good points, and his analysis is informative.

I was particularly struck by his discussion of Scalia and Thomas, which I excerpt below:

I think that the most interesting Justices, by far, were Justices Scalia and Thomas. Both remain the most principled members of the Court. They joined the defendant-favoring majorities in Gant in Melendez-Diaz, as they consistently have done in the recent lines of jury-right and confrontation cases. Justice Scalia joined the left to provide a majority in Cuomo and Spears. Justice Thomas did the same in the maritime punitive damages case, Atlantic Sounding. There is no counter-example in which a member of the left joined the Court’s four most conservative Justices to provide a majority.

Justice Thomas, in particular, remained willing to front new theories on critical questions, often writing only for himself, as in NAMUDNO. No other member of the Court is so independent in his thinking. The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia. I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

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For Jefferson Fans:

Maira Kalman, over on the NY Times website, has put together a truly extraordinary piece (I'm not even sure what to call it — an essay with drawings? a pictorial thought-piece?) on Thomas Jefferson. Lovely and lyrical, and it captures something about the guy that's difficult, sometimes, to capture in naked prose.

Jefferson's undergoing a little bit of a public rehabilitation these days, it seems to me. I'm absurdly biased, I realize; I just spent 12 years of my life writing a book in which he's the main character, and I developed the deepest admiration for his ideas and his principles and his approach to the world. But I do detect something of a turning of the tide — from a focus on "evil slaveholder" back to one on "profound thinker." It's a good move for us all - Jefferson's got a lot to teach us, and I think a generation or so went by when it was almost impossible to get any of that across because of the ill-regard in which he was held by so many.

Ms. Kalman's title — "Time Wastes Too Fast" — comes from a deeply poignant episode in Jefferson's life. I described it this way in my book:

"In the Spring of 1781, Jefferson was finishing up his second term as Governor of Virginia, the office to which he had been appointed following his service with the Continental Congress and his justly-celebrated work drafting the Declaration of Independence. It was a very difficult and unhappy time in his life. His infant daughter Lucy Elizabeth died in April; his wife Martha, who had never quite recovered from the pregnancy (her fifth in seven years), was also, slowly, dyingMartha Jefferson died the following year (September, 1782).

Her deathbed scene is the stuff of legend. Just before she died, she scrawled an excerpt from Laurence Sterne’s Tristram Shandy on a piece of paper:

Time wastes too fast: every letter I trace tells me with what rapidity life follows my pen. The days and hours of it are flying over our heads like clouds of a windy day never to return more – every thing presses on

In the almost unimaginably vast trove of Jeffersoniana out there, it is, other than a few inventory lists and the like, the only surviving item written in Martha Jefferson’s own hand.

Jefferson himself – whether before or after her death is not known – then wrote out the remaining lines at the bottom of the page:

– and every time I kiss thy hand to bid adieu, every absence which follows it, are preludes to that eternal separation which we are shortly to make!

Martha’s death threw Jefferson into a depression from which friends feared he would never recover. “He kept his room for three weeks,” his daughter Patsy wrote, and “walked almost incessantly night and day, only lying down occasionally, when nature was completely exhausted, on a pallet that had been brought in during his long fainting fit.” When he at last he left his room, “he rode out and from that time he was incessantly on horseback rambling about the mountain on the least frequented roads and just as often through the woods.” A “miserable kind of existence . . . too burthensome to be borne,” Jefferson wrote, “. . . all my plans of comfort and happiness reversed by one single event and nothing answering in prospect before me but a gloom unbrightened with one cheerful expectation.”

It wasn't entirely relevant to my purposes, in the book - but so touching I felt I couldn't exclude it.

I never did, however, find a way to sneak in the loveliest piece of Jeffersoniana out there — the bookend, as it were, to Martha's deathbed scene. In 1818, when informed of the death of Abigail Adams, Jefferson sent his condolences to her husband — with whom he had just a few years before resumed correspondence after nearly fifteen years (fifteen years that had been filled with rancor and bile on both sides). It's a hard genre, the letter of condolence, and Jefferson writes the most beautiful one I've ever read:

"The public papers, my dear friend, announce the fatal event of which your letter of Oct. 20 had given me ominous foreboding. Tried myself, in the school of affliction, by the loss of every form of connection which can rive the human heart, I know well, and feel what you have lost, what you have suffered, are suffering, and have yet to endure. The same trials have taught me that, for ills so immeasurable, time and silence are the only medicines. I will not therefore, by useless condolences, open afresh the sluices of your grief nor, although mingling sincerely my tears with yours, will I say a word more, where words are vain, but that it is of some comfort to us both that the term is not very distant at which we are to deposit, in the same cerement, our sorrows and suffering bodies, and to ascend in essence to an ecstatic meeting with the friends we have loved and lost and whom we shall still love and never lose again. God bless you and support you under your heavy affliction."

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"When and How Was the Jewish People Invented?" Update:

I blogged a while back about this book by Shlomo Sand, a bestseller in Israel and winner of a French prize for nonfiction. The book is coming out in English this Fall, with the title, "The Invention of the Jewish People."

My previous post was very critical, based on and interview with Sand, and reports about the content of the book, which claims that modern Zionists invented the concept of the Jewish nation, that modern Jews are not descended from ancient Judeans, and others assertions that run counter to my understanding of modern linguistic, religious, demographic, and genetic history. However, I wasn't able to read the French or Hebrew full text.

In any event, I've now come across this extensive review (in English) by Anita Shapira of Tel Aviv University. It's devastating, in exactly the way a scholarly book review should be.

The one thing that Shapira doesn't mention is that Sand has longstanding Communist connections, and that his parents were also Communists. So while she attributes Sand's sloppy and tendentious historical work to his desire for a post-Zionist Israel, and points out how similar some of his theories are to those of right-wing anti-Semitic cranks, she fails to link it to some broader leftist intellectual history.

I mention this not to "red-bait," but because Communists going back to Karl Marx have long been adamant that both Judaism as a religion and Jewish peoplehood are artificial constructs, in a way that other religions and nationalities are not. (You might, in fact, argue that this bizarre singling out of "Jews" as figments of the Western imagination has been an "article of faith" in Communist circles.) I've been meaning for a long time to link to this paper, which while not comprehensive, seems like a good place to start to explore this issue.

The author, Ben Cohen, concludes,

To the extent that all group identities are constructed around narratives of history or religion or culture, they can be characterized as synthetic or even artificial. Yet for much of the left in the late nineteenth and early twentieth centuries, the objectionable nature of Jewish identity, in contrast to the identities of other groups, stemmed from its artificiality, which was understood as being economic in origin. Agents of a monetary economy could not constitute a community, much less a nationality: hence the equation of Jewish emancipation with Jewish disappearance, as intimated by Marx.

He also notes that similar themes were taken up by the Soviets with regard to Israel, and echoes of both ancient Marxism and Soviet propaganda are still prevalent among the left's anti-Zionists today.

UPDATE: As I wrote in the comments: I'm not attacking Sand for being, or having been, a Communist. I'm pointing out that his ideas have a long intellectual pedigree in the political circles in which he and his family have been involved, and if you're going to try to put his views in the context of broader intellectual history, that's worth noting. It's also worth noting because people are already seizing on Sand as an example of an "Israeli Jewish historian" destroying Zionist myths. It's rather less impressive to point out that an "Israeli Communist historian" is taking what has been the Marxist/Communist line for decades re Zionism and Jews.

FURTHER UPDATE: The publisher's website includes, unabashedly, this ridiculous praise for the book: "what this well-documented and fearless book explodes is the myth of a unique Jewish people, miraculously preserved, in contrast to all the other peoples, from external contamination." The problem, of course, is that there is no such myth. No one has ever accused Jews of being idiots, and you'd have to be an idiot not to recognize that blond-haired, blue-eyed Jews like my late grandmother aren't descended solely from ancient Judeans, or that my grandmother doesn't look much like a typical Yemenite, Ethiopian, or even Ashkenazic Jew. The phenomenon of converts--including great Jewish scholars like Onkeles--is well-recognized among Jews, as is the fact that Jews suffered rape, and that not all Jews engaged in endogamous relationships. The idea that Jews believe that they are free from "external contamination" smacks of anti-Semitic myth, and Verso Press should be embarrassed to promote one its books with such a racist quote.

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Ricci and the Inevitability of Affirmative Action:

Below is something I wrote in a book review a while back, that's still pertinent today. The one thing I'd add is that because whites remain the majority, if antidiscrimination laws were applied strictly neutrally to permit reverse discrimination lawsuits, and whites sued at even one-quarter of the rate of African Americans, there would be more discrimination lawsuits by whites than by blacks. Employers would adjust their employment policies accordingly, to the benefit of whites (to avoid lawsuits) and the detriment of African Americans. Also, the problem discussed below becomes especially acute when the government is the employer, and civil service rules require an objective test. Here it is:

Perhaps [the authors] would both join most conservatives in supporting a strict, neutral civil rights law, under which whites would have the same right to sue for discrimination as minorities. Whites would be able to win lawsuits based on indirect and statistical evidence of discrimination, as protected minorities do currently.

Under such a regime, employers seeking to avoid lawsuits would begin to hire workers based purely on objective credentials [as government agencies try to do, see Ricci]. Not coincidentally, blacks and members of other relatively impoverished and less-educated groups have fewer formal credentials than whites. Hence, neutral civil rights laws steer employers away from giving applicants with inferior paper credentials a chance. Blacks, Hispanics, and American Indians are therefore probably better off without civil rights laws than with harsh, neutral laws that do not permit affirmative action.

It would be possible to mitigate this result by allowing people to win civil rights lawsuits only when there is direct evidence of blatant discrimination. Back in 1964, many supporters of the Civil Rights Act seemed to have this kind of regime in mind. Within a few years, however, blatant, open discrimination of the (once common) "No Dogs or Jews allowed" variety had disappeared almost entirely. Today, even ifthe civil rights laws were all repealed, this type of discrimination would be unlikely to reappear except in very isolated pockets.

Civil rights activists are therefore correct when they accuse conservatives who oppose affirmative action of essentially opposing civil rights laws. The only types of civil rights laws that apply to private conduct that conservatives can support would either actually harm minorities, or would be almost wholly ineffectual. The debate over affirmative action would be far more honest if both civil rights activists and conservatives would acknowledge that truly neutral civil rights laws are simply not a viable option [at least if you want the laws to be effective against residual discrimination].

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Reversing DADT is "urgent" and "essential to our national security" because the policy "weakens" our military, expels "patriotic Americans" with "critical language skills," and wastes years of training -- all in "a time of war":

That's what President Obama has concluded. Here's the transcript of the president's remarks at the White House today.

To deal with this grave and urgent threat to national security, the Commander-in-Chief announced that he will immediately:

(1) Suspend enforcement of DADT in its entirety for the duration of the war, claiming ample constitutional and statutory authority.

(2) Issue a stop-loss order barring DADT expulsions for certain classes of "mission-critical" specialists.

(3) Order the Defense Department to halt DADT investigations and other inquiries into soldiers' sexual orientation.

(4) Demand that Congress act now to repeal DADT.

(5) Ask that a plan be developed on an unspecified time schedule for the repeal of DADT at some indefinite point in the future.

(Pick one.)

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MDLF and Lite-Blogging:

I've been away on a trip to Prague for the past few days, board meeting for a nonprofit whose board I chair, the Media Development Loan Fund. MDLF is a nonprofit, mission driven private equity fund; here's the description from our new, cool Facebook page, which you too can join:

Media Development Loan Fund is a mission-driven investment fund for independent news outlets in countries with a history of media oppression. It provides low-cost capital, solutions and know-how to help journalists in emerging democracies build sustainable businesses around professional, responsible, quality journalism.

For many years, MDLF kept a low profile, even though it has emerged over its fifteen years of existence as the leading media assistance organization that works primarily on the financing and business end of things. To be blunt, since the early 1990s there have been a lot of media assistance organizations that provide journalistic help and training, often of very high quality. MDLF is the only one that provides financial investment, and the technical skills that come with making the investment pay off. It has gone from a portfolio of zero to somewhere around $50 million currently. It primarily makes loans, but also makes equity investments - some of which have paid off spectacularly, and allowed MDLF to be doing okay in an environment in which other NGOs and nonprofits are struggling - or anyway struggling a lot more than MDLF.

I've been chair for a very long time - closing on fifteen years - which is not only a really long time, but also frankly too long a time. It's not the best practices for an NGO to have a chair or board that doesn't turn over. But it's not an easy organization for which to find the right combination of board members - you want people with experience in journalism, media management, business and finance and preferably private equity, and nonprofit management and governance. Since the organization not only makes investments into private media companies in often dicey-places in the world at subsidized rates, but also borrows a substantial portion of its funds (rather than receiving them as grants), its finances are way more complicated than the usual grant-receiving, grant-making NGO.

A number of its financing arrangements have been cutting edge. It was, so far as I know, the first international NGO to launch a publicly traded derivative, a swap note on the Zurich stock exchange, handled by a leading Swiss private bank and with a partial guarantee from the Swiss government. It has used innovative financing techniques to structure mechanisms by which it can protect its financial position while still ensuring the editorial independence of its portfolio companies. MDLF was very lucky in managing to sell its stake in a Belgrade TV and radio station - the famous anti-Milosevic B92 station - just ahead of the financial crisis.

But that's the technical side. Supporting B92 over many struggling years was a great thing to do. But supporting Trevor Ncube and the South African Mail & Guardian was also really important (see the video interview with him on the front page currently at MDLF.org), likewise internet news operations in Indonesia, many newspaper and newspaper printing presses in the Russian provinces, in Guatemala, and many other places besides. This is an organization that does good and important work, but it is work whose value is hard to explain to a public that wants to see baby seals, warm puppies, and hungry children - hard to explain that in struggling societies, transparency, accountability, good governance, free transmission of information, functioning information markets - all that matters along with the primary social service goods. But it's hard to explain to people that these apparently secondary functions are crucial to making the other stuff happen, at least if you want the other things to happen as more than merely a Red Cross humanitarian relief operation.

Anyway, I will be stepping down from the chair and the board at the end of the year. Good for the organization to get a rotation of board members, and good for me, in that there are things related to media business, NGOs, governance, nonprofit finance, etc., that I've wanted to write about but haven't felt comfortable doing while the chair of the board of an organization in those fields. But this is a terrific organization, and we had an excellent meeting in Prague. But that's why I've been on lite-blogging status.

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Monday, June 29, 2009

Domestic partnerships in Wisconsin:

Today the governor signed a biennial budget bill that includes limited but important protections and rights for registered same-sex domestic partners.

Wisconsin is the first state in the Midwest to grant recognition to gay families by legislative action. Iowa has marriage by state supreme court decision. So far, there's no recognition or legal protection for gay families as such in neighboring Illinois (where the state government is unusually dysfunctional) or in Minnesota (where the governor vetoed even a bill limited to hospital visitation).

Wisconsin is also the first state with a constitutional amendment banning SSM and civil unions to create a domestic partnership status for same-sex couples. A state legislative committee concluded that the bill does not violate the state amendment, passed by voters in November 2006, limiting marriage to opposite-sex couples and barring any status "identical or substantially similar to that of marriage" for unmarried couples.

That seems right. The Wisconsin law gives domestic partners about 40 rights (out of the more than 1,000 rights given to married couples), including the rights to visit a partner in the hospital, to take leave to care for a sick/dying partner, and to inherit a partner's property intestate. Thus begins a process by which state legislatures around the country will be testing the reach of some of the recent state constitutional amendments banning SSM and civil unions.

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A Belated Presidential Signing Statement:

On Wednesday, June 24, President Obama signed the Supplemental Appropriations Act of 2009, and issued a short, laudatory signing statement. It was purely "rhetorical," to use the language of academics who study this subject, and voiced no constitutional objections.

I want to thank the Members of Congress who put politics aside and stood up to support a bill that will provide for the safety of our troops and the American people. This legislation will make available the funding necessary to bring the war in Iraq to a responsible end, defeat terrorist networks in Afghanistan, and further prepare our nation in the event of a continued outbreak of the H1N1 pandemic flu.

Two days later, apparently at about 4:15 pm on the evening of Friday, June 26, the President issued an additional statement that contained the fifth constitutional signing statement of his presidency. After four paragraphs lauding the funding the Act provides, the President stated:

However, provisions of this bill within sections 1110 to 1112 of title XI, and sections 1403 and 1404 of title XIV, would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations.

Unlike some of his recent signing statements, there was no express indication that the Administration previously communicated these complaints to Congress before enactment.

While I believe there is nothing inherently improper about issuing the signing statement a couple days late (although for reasons President Obama appropriately has recognized, it's better to tell Congress before the legislation is enacted and it's in a position to do something about it), it is certainly unusual. The only explanations I can think of offhand are that either (1) some lawyers in OLC or the Counsel's Office couldn't get their act together in time or (2) perhaps the Administration is trying to control the news cycle by releasing it on Friday evening. Let me know if another explanation occurs to you.

The Obama signing statement reflects the longstanding Executive Branch position on the President's constitutional authority in the area of foreign affairs. The signing statement was similar to ones issued by, for example, President George W. Bush. See, e.g.:

Several provisions of the Act purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad, or otherwise interfere with the President's constitutional authority to conduct the Nation's foreign affairs. These include sections 514, 560, and 581(a), and the appropriations heading related to the International Development Association, which purport to direct the Secretary of the Treasury to require the U.S. representatives to take particular positions for the United States in international organizations or require the Secretary to accord priority to a particular objective in negotiations with such an organization. Another such provision is section 567(b), which purports to direct the Secretary of State to consult certain international organizations in determining the state of events abroad. These provisions shall be construed consistent with my constitutional authorities to conduct foreign affairs, participate in international negotiations, and supervise the executive branch.

Signing Statement for H.R. 2506, the "Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002" (Jan. 10, 2002).

It does not appear that the NY Times, the Washington Post, or the Boston Globe covered the signing statement in their newspapers. Charlie Savage of the Times did a brief blog post on the statement, although one might say it lacks the "urgency" of some of his earlier Pulitzer-Prize-winning reporting on the subject.

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Epstein on Ricci:

Epstein:

In the end, we can't win with either the rigidity of the conservative position or the historical guilt trip of the liberal. A little flexibility will go a long way. The government as a manager cannot be held to the same strict standards that are applicable to the government as a regulator. The libertarian therefore becomes a moderate. He would keep the tests, and allow New Haven to promote the top of the African-American group to the prejudice of some white candidates. These rules should be announced in advance and after public deliberation. If you are happy with this solution, you don't understand the problem. If you are unhappy with it, come up with a better alternative.

I think it's problematic for a variety of reasons for the government to utilize a relevant qualifying test that has been intentionally prescreened to avoid prejudicing any group, and then throw out the test to the detriment of individuals who passed the test, and to the benefit of those who did not.

On the other hand, various pro-affirmative action arguments raised by Epstein, such as insuring the public legitimacy of government agencies, have some merit. So I'll take Epstein up on his challenge, and come up with a better alternative: validate the results of this test, but use a different test next time, one that will still result in screening for qualified candidates, but may not have the same disparate racial impact.

As in the Court's recent school desegregation cases, it's the difference between assigning particular individuals to a given school instead of their local school solely because of their race, and initially choosing school boundaries that will result in more integrated schools. Both decisions take race into account, but I find the former troubling and the latter fine, a distinction made with some aplomb by Justice Kennedy in the school cases.

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"Come on You Homosexual Demon":

That's a line from an apparent "gay exorcism," according to ABC News. The article saus that "Robin McHaelen, executive director of the Manchester-Conn., True Colors," "a nonprofit group for gay and lesbian youth that has mentored [a teenager] for about a year," "said she was mandated by law to report the exorcism to the state Department of Children and Families, which she said is now investigating." The video referred to by the article is apparently available here.

This sort of action sounds quite silly to me, since the notion of demonic possession strikes me as about as sensible as the notion of werewolves, vampires, or witches. I also think there was nothing immoral about homosexuality, but even if I took the opposite view on the morality, I'd think that exorcisms would hardly be the way to stop the problem.

Yet it appears that others hold a different view, and I can't see what the state can "investigate" here. It's not any physical violence to the child, or so it appears from the video. The writhing and apparent vomiting do not seem to stem from physical attacks, but presumably from the subject's feeling that the exorcism does have some effect (or perhaps his feigning such a feeling). Nor can the state react to the exorcism on the grounds that there's something wrong with the religious nature of the event; such a singling out of religious practices for special action would violate the Free Exercise Clause. And the complainant's argument about how the parents are "murdering this kid's soul" helps show, I think, the weakness of argument by metaphor.

The only plausible argument for restricting such behavior, it seems to me, is that attempts to "cure" a 16-year-old of homosexuality (or perhaps specifically such attempts when done in front of a group of other people, and posted to the Internet) are so psychologically harmful and justified that they constitute child abuse. But that, I think, is taking the notion of punishable child abuse — a sensible notion, of course, when properly limited — way too far. Parents do much that is good, some that is bad, and some that is either good or bad depending on your ideology, through psychological pressure on their children, including pressure that's done through groups to which the parent and the child belongs. It is the very rare circumstance, it seems to me, that justifies intruding into parental decisionmaking absent serious physical abuse or neglect (e.g., denial of medical care, beatings, sexual contact, and so on).

I am, of course, aware that some teenagers may commit suicide based partly on hostile reactions to their homosexuality. But teenagers, unfortunately, apparently commit suicide based on many factors, such as parental pressure to succeed at school, reactions to parental divorce, and so on. Treating the possibility of such awful outcomes as a basis for punishing the parents (or stripping them of parental rights) strikes me as an unacceptable attempt by the government to micromanage child-rearing, and a very bad precedent for the future.

Fortunately, so far we have just a complaint to the Department, not any government action. But I thought I'd pass this along, since it has hit the news and strikes me as a noteworthy incident, though one in which the right legal answer should be pretty clear.

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University of Illinois Admissions

The University of Illinois admissions “scandal” has attracted a lot of coverage, including blog posts by Jon Adler, Brian Leiter, and Paul Caron. My friend and colleague, (former Dean) Heidi Hurd had a letter to the editor in the Chicago Tribune yesterday that is likely to be of interest to those following the issue. The key paragraphs are as follows:

Contrary to recent headlines, the College of Law did not seek or receive any jobs from anyone in exchange for the admission of students. It did not enter into a "jobs-for-entry scheme" or engage in quid-pro-quo exchanges of admissions favors for employment favors. Indeed, it takes very little to make clear that the employment challenges of students who are not academically successful could never be overcome by anyone's promises to furnish the College with job opportunities, as the recently published exchanges should have made clear. While my sarcasm was clearly lost on the tin ears of some, my e-mail exchanges in response to queries about this were on their face facetious.

In reply to a question about what jobs would count to meet the employment needs of students with poor academic predictors but powerful personal connections, I wrote: "Only very high paying jobs in law firms that are absolutely indifferent to whether the five have passed their law school classes or the Bar." There are, of course, no law firms that are indifferent to whether their attorneys possess law degrees (and one must pass law school classes to receive a law degree) or are members of the Bar (for one cannot practice law without Bar membership). And when asked whether such students might find employment in government positions, I was being equally sarcastic when I replied: "I'm betting the Governorship will be open. One of them can have that job. Other jobs in Government are fine, since kids who don't pass the Bar and can't think are close enough for government work." Inasmuch as I was a public servant at the time that I made these comments and have long been a scholar and teacher of political theory, my dismissive response was designed to convey the view that government, no less than private practice, requires the best and brightest.

A blue-ribbon state Commission is currently working to "review claims that certain applicants to the University of Illinois received special treatment based on political connections and recommend reforms to improve the fairness and transparency of the admissions process." Here is the agenda for the public meeting being held today.

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The Resultative Perfect

makes its appearance in this linguists' amicus memorandum filed in Rodearmel v. Clinton, the Ineligibility Clause (a k a Emoluments Clause) case.

The question, as you may recall, is this: Does "the Emoluments whereof shall have been encreased during such time" refer to a salary having been increased on balance during a time ("the Time for which [Senator Clinton] was elected")? Does it refer to the salary having been increased at least once even if it was later decreased? Or is the phrase ambiguous, as the linguists suggest?

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Correcting Students’ Usage Errors Without Making Errors of Our Own:

A law professor who directs an adjunct-taught legal writing program e-mailed me this, in response to my article on the subject:

[T]he phenomenon you describe is one of my biggest hurdles. I spend a significant amount of time warning my adjuncts not to “correct” anything they can’t demonstrably show, through a reliable source, to be wrong. I also advise them to do just what you say: mark sticky usage or spelling as unwise, perhaps, or likely to inflame passions but not “wrong” unless it truly is, and to look everything up before marking it even if they’re certain they are correct. I still see “forgo” “corrected” to “forego” when it means to go without, and phrases like “have carefully reviewed” edited to put “carefully” after “reviewed,” for who knows what reason. Sigh. Even if these were actual mistakes, our students certainly have more important things to worry about in trying to improve their writing....

[Also,] I occasionally am hired by big law firms to tutor associates in legal writing. One downtown firm asked me to put on lunchtime presentations for the associates, but to begin with a session for the partners, to train them how to be effective writing coaches. I thought this was a wonderful idea. Among the things I included in that presentation was a general admonition along the lines of what you wrote: don’t mark personal preferences but rather stick to actual mistakes, for all the reasons you cite as well as some of my own. A partner objected strenuously. He said, and I kid you not, “One of the reasons I became a partner was to impose my personal preferences on others.” I was not asked back.

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Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:

The Supreme Court's decision in Ricci v. DeStefano has interesting implications for the longstanding debate over whether the Roberts Court is "pro-business." The bottom line is that the business interests were among the big losers here. The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. And this defeat was inflicted by the supposedly business-friendly conservative justices. Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

The fact that the conservative justices dealt business interests a major defeat in Ricci doesn't prove that they would be equally indifferent to business concerns in other cases. That said, it's worth noting that the five conservative justices ruled against business interests on an issue that could potentially expose them to a great deal of costly litigation. This fact further weakens already dubious claims that the Roberts Court is systematically advancing a "pro-business" agenda.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." A disparate impact lawsuit is a case alleging discrimination by the employer on the grounds that its hiring or promotion standards disproportionately disadvantage minority applicants, even if the employer wasn't deliberately trying to discriminate against them.

The Court's ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of "disparate treatment" suits by white employees ("disparate treatment" suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits. The Equal Employment Advisory Council, a group representing numerous large corporations and other businesses, filed an amicus brief in Ricci urging the Court to rule for New Haven for precisely this reason.

The five conservative justices weren't buying that argument, however. To be sure, the majority opinion does allow the use of race-conscious measures to avoid disparate impact liability where there is "a strong basis in evidence" to conclude that such liability would otherwise arise. However, Justice Kennedy also emphasized that race-conscious measures to avoid disparate impact liability will only be allowed in "narrow circumstances." Moreover, the Court ruled that such circumstances didn't exist in this case despite the fact that not even one black firefighter could have been promoted based on the results of the original exam. As the Court notes, "[t]he racial adverse impact here was significant, and . . . the City was faced with a prima facie case of disparate-impact liability." It is also important to recognize that, in deciding to grant summary judgment in favor of the plaintiffs, the Court was required to consider the evidence in the light most favorable to the opposing party (New Haven); even under that standard, the Court majority concluded that New Haven loses. Thus, there will likely be many cases where businesses face some substantial risk of disparate impact liability, but will still be forbidden to use race-conscious measures to avoid it.

The fact that business interests will suffer doesn't mean that Ricci was wrongly decided. I believe that private employers should be allowed broad discretion to adopt race-conscious affirmative action plans. But my view of the world is different from that embodied in Title VII, and I think the majority justices interpreted the statute more or less correctly. Right or wrong, the decision definitely isn't pro-business.

UPDATE: In the last part of his opinion for the Court, Justice Kennedy tries to address the conflict between disparate treatment suits and disparate impact:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

This gives New Haven and other similarly situated employers a potential safe harbor against disparate impact lawsuits. However, it is not clear that this reasoning extends beyond the context of a decision to decertify an already completed formal test. Most private employers do not use formal test processes like that of the New Haven Fire Department. Even in the testing context, there might not be a "strong basis in evidence" for disparate treatment liability absent the kind extensive record of racial motivation that New Haven compiled in this case (there was a lot of evidence, summarized in Justice Alito's concurring opinion, that the City's true motive for decertifying the test was to increase minority representation in the Fire Department for political reasons unrelated avoiding disparate impact liability.

Related Posts (on one page):

  1. Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:
  2. Tidbits from Ricci on the Second Circuit's Disposition:
  3. Ricci and the Sotomayor Nomination:
  4. Ricci Reversed:
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Climate Protectionism?

Tyler Cowen criticizes the Waxman-Markey bill for imposing tariffs on goods from countries that do not reduce their greenhouse gas emissions. (See also VC contributors linked at the end of this post (and scroll down).) Tyler gives lots of good reasons why trying to punish (say) China would be counterproductive. Clearly, doing so is not costless: we can punish China only at great cost to ourselves in the short term. But the fact is that there is no alternative.

To see why, recall that climate change is a collective action problem. In the most extreme form of the problem, a single nation or a group of nations can do nothing about climate warming, because if they tax emissions (directly or through a cap and trade scheme) industry will simply migrate to other countries and export back to the regulated countries. Costs go up, with no gain for the climate.

In an ideal world, a treaty would be negotiated, one that would require all states (or, at least, all states capable of hosting industry) to reduce emissions. States like China would have to be persuaded that they can’t afford to stay out of the treaty. China appears to realize that global greenhouse gas abatement serves its long-term interests, but prefers other countries to pay most of the cost—through financial and technological assistance, which has been its bargaining position so far. But the rest of the world can’t afford to pay China to reduce its emissions to an adequate level. Only tough bargaining will ensure that China signs on at reasonable cost for the rest of the world. Note also that any realistic climate treaty would provide for sanctions against states that violate their obligations. Bombing harbors and seizing customs houses having gone out of fashion, these sanctions would almost certainly take the form of trade sanctions.

Many people have criticized Waxman-Markey for putting the cart before the horse. We should first negotiate a climate treaty, and then pass laws implementing its limits. This has been my view but I wonder whether it is too ivory-tower. The administration seems to think that it will not have a credible negotiating position unless it signals that the U.S. is capable of passing a climate bill, even a minimal one that doesn’t do much for the climate like Waxman-Markey. The fact that this law imposes costs on the United States while providing no real benefits is consistent with the classic signaling model, with the United States trying to persuade the rest of the world that the public will support climate regulation. If this is true, and it is plausible even if not obviously correct, then unilateral restrictions could be desirable, but they also create a problem by simultaneously weakening the American bargaining position. The U.S. having taken abatement steps, China and others can hold out for even more. This may well be a rationale for threatening to punish states that don’t climb onto the climate bandwagon. The U.S. will move first (at least, relative to China, not to Europe) but its threat to disrupt trade relations makes it clear that China will pay a price if it tries to take advantage of the U.S. move by holding out for an even better deal in climate talks.

Then why does the Obama administration say that it opposes the tariff? It may fear that the provision will start a trade war, injure relations with China and other countries, and cause much more mischief at a time of economic fragility. Given everything that is going on, it may be impossible to send a good message about climate without sending a bad message about other forms of international cooperation. Therefore, the messages need to be ambiguous. Maybe this is right, but sooner or later, the United States and other countries will have to make it clear that they are prepared to impose sanctions on states that refuse to take on climate obligations and to comply with them—eve at the risk of ending up at the worst equilibrium in which trade is disrupted and a climate deal is not reached. This is a high-stakes game but there is no clear alternative.

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Tidbits from Ricci on the Second Circuit's Disposition:

There is relatively little in Justice Kennedy's majority opinion that directly addresses the handling of this case by the U.S. Court of Appeals for the Second Circuit. There are, however, some interesting passages from some of the other opinions that suggest disagreement with how the Second Circuit panel resolved the case.

First, Justice Ginsburg's dissent contains an interesting footnote -- Footnote 10 -- suggesting that she and the other dissenters were prepared to vacate and remand the case as recommended by the Obama Administration's amicus brief.

10. The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.
This would suggest that even the Court's dissenters believed that the Second Circuit did not properly address the issues raised by the New Haven firefighters, even if they would adopt a standard that would make it difficult for the firefighters to prevail.

There's also some interesting language at the close of Justice Alito's concurrence (joined by Justices Thomas and Scalia) that I read as a subtle rebuke to Judge Sotomayor and the Second Circuit panel (which expressed sympathy to the firefighters in its per curiam opinion), as well as a rejection of an "empathy" standard for judicial decision-making.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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Ricci and the Sotomayor Nomination:

While I wait for my copy of Ricci to finish printing, here are some quick thoughts on how this decision could influence the Sotomayor nomination.

First, the bottom line: This decision is very unlikely to have a significant effect on the outcome. I find it (almost) inconceivable that she will not be confirmed. A 5-4 reversal, even on a contentious, high-profile issue, will not change that.

The 5-4 nature of the Court's decision reinforces the argument that Sotomayor is a mainstream liberal nominee. The Court split along predictable, ideological lines. Her decision was supported by the Court's four liberals, including the Justice she was tapped to replace, so the case does not suggest that she is a radical or outside of the legal mainstream. Rather, it confirms what we've presumed: She's a liberal judge who is likely to agree with the Court's liberal justices in most closely divided cases in which the justices split along ideological lines.

On the other hand, the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about her judgment. Initially, the panel upon which Sotomayor sat was ready to dispose of the case with an unpublished, unsigned summary order. Whatever the reasons for this (and we've seen some speculation), it's difficult to argue that this case was a simple no brainer of the sort that would justify that sort of resolution — and it's difficult to square the justifications for this disposition with the panel's subsequent decision to affirm the district court with a one paragraph, precedential opinion. The length of the Supreme Court's opinions (a 34-page majority, 39-page dissent, and two concurrences) is evidence that the case raised difficult and weighty issues. It reinforces the position of Judge Sotomayor's colleagues who criticized the panel's initial disposition and, on their own initiative (and without the filing of a petition for rehearing en banc), sought full court review of the case. Yet even if her handling of this case reflects poorly on her judgment, I do not see it as disqualifying, and I do not believe it will prevent her from being confirmed.

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In Other News:

In Cuomo v. Clearing House Ass'n, the Supreme Court held, 5-4, that the Comptroller of the Currency's regulation preempting certain forms of state law enforcement against banks is invalid. Justice Scalia wrote the opinion of the Court, joined by (wait for it), Justices Stevens, Souter, Ginsburg and Breyer. Justice Thomas filed an opinion concurring in part and dissenting in part joined by the Chief Justice and Justices Kennedy and Alito. The opinion is here.

In an equally surprising development, the Court announced that it will rehear Citizens United v. Federal Election Commission, and consider whether to overturn Austin v. Michigan.

The Court also accepted six petitions for certiorari. As always, you-know-who has more details.

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Supreme Court Rules Against New Haven in Firefighters' Case:

I'm guessing some of the Conspirators will have more to say about this, once we get to read the opinions. The vote was 5-4, along the standard lines. My quick take is that if the four liberal Justices were willing to vote with the city on this one, it suggests that there is virtually no form of "benign" race-based decisionmaking by the state that they believe is unconstitutional.

UPDATE: I see co-blogger Jonathan beat me to it. The opinion can be found here.

FURTHER UPDATE: The case was decided purely on Title VII grounds, not based on the Fourteenth Amendment. Oddly enough, the dissenters also only discuss Title VII, even though the firefighters raised Fourteenth Amendment claims, too. The majority had no reason to discuss constitutional claims once they disposed of the case based on statute, but the dissent should have explained why the Fourteenth Amendment didn't help the plaintiffs, even if the answer would be "we think the Fourteenth Amendment and Title VII create the exact same standard." This is especially so given that both opinions rely so heavily on whether black firefighters could have had a valid statutory discrimination claim if the test results had not been thrown out, which might provide a defense under Title VII but not the Fourteenth Amendment.

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Question of the Day:

If a nation's military, acting under the orders of its Supreme Court, moves to arrest the president of the country for openly violating its constitution in ways that will promote his own power, is that accurately described as a "coup?"

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Ricci Reversed:

Justice Kennedy for a 5-4 Court split along ideological lines. The Court reverses outright, and rejects the Obama Administration's suggestion that the case be vacated and remanded for further proceedings. Justices Scalia and Alito wrote concurring opinions. Justice GInsburg wrote the dissent. More on SCOTUSBlog.

UPDATE: The opinion is here — it's a long one: 93 pages.

SECOND UPDATE: Here is how Justice Kennedy summarizes the Court's holding:

We conclude that race-based action like the City’s in thiscase is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respon-dents’ actions may have violated the Equal Protection Clause.
And the opinion concludes:
The record in this litigation documents a process that, atthe outset, had the potential to produce a testing proce-dure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the testitself and its administration. As we have discussed at length, the process was open and fair.

The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

My initial thoughts: I'm inclined to think the Court is correct, though I am somewhat surprised that the justices did not coalesce around a narrower holding, such as that suggested by the Obama Administration (vacate and remand for further consideration of whether New Haven's purported justification for invalidating the test was a pretext). From a super-duper-quick perusal, it seems that one significant effect of this ruling is that it could shield employers from disparate impact liability where avoiding such a suit could give rise to this sort of disparate treatment suit. I'll be curious to see how much this holding is dependent on the specific facts of this case, as New Haven had gone out of its way to develop a fair test and there was evidence that the city was motivated by more than potential Title VII liability. More later.

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Souter, Sotomayor, & Melendez-Diaz v. Massachusetts:

The conventional wisdom holds that replacing Justice David Souter with Sonia Sotomayor will not have a significant effect on the Supreme Court's jurisprudence. For most high-profile, hot-button issues, this may be correct. Yet for reasons I have noted before (see here and here), I think that Sotomayor's confirmation could have significant effects, particularly in the area of criminal law. Last week's decision in Melendez-Diaz v. Massachusetts provides a nice illustration of how the Court's approach to some criminal law issues might change once Justice Sotomayor replaces Justice Souter on the Court.

In Melendez-Diaz the Court split 5-4 over whether the Confrontation Clause requires treating crime lab reports as testimonial evidence. The justices did not split along traditional ideological lines, however. Rather the division could be described as one between formalists and pragmatists. The former group -- Justices Scalia, Thomas, Stevens, Ginsburg and Souter -- sought to apply the Confrontation Clause in a formalistic manner, concluding that affidavits completed by forensic analysts are testimonial evidence that may only be admitted if the authoring analysts testify (or are unavailable), so as to allow a criminal defendant the opportunity to confront them. The latter group -- Justices Kennedy, Alito, Breyer, and the Chief Justice -- take a more pragmatic approach, concluding that the Confrontation Clause's requirements need not be applied so rigidly to scientific evidence. This is a split we've seen before, both in other Confrontation Clause cases, as well as in cases challenging the constitutionality of sentencing schemes that allow or require judges to make sentencing decisions based upon facts not found by a jury, so it is not isolated to this one issue.

Which camp will Justice Sotomayor join assuming she is confirmed to the Court? It is impossible to know for sure, but there are reasons to suspect that she may join the pragmatists more often than the formalists. For one thing, her criminal law opinions provide little evidence of a strong civil libertarian streak of the sort that would lead her to apply constitutional protections for criminal defendants in a strict and unyielding manner. Further, her experience as a trial court judge and prosecutor may lead her to take a more pragmatic, and less bright-line-oriented approach to these sorts of cases. If so, her ascension to the Court could have dramatic consequences for criminal law, as she could create a new Court majority on these issues and roll back recent decisions on the Confrontation Clause, sentencing rules, and other areas of criminal law.

Would such a change be a bad thing? That depends on how one approaches these sorts of cases. For myself, I am quite sympathetic to the formalist approach, and find Justice Scalia's arguments quite compelling (and not just because he cites one of my colleagues). So I think it would be unfortunate were she to depart from Justice Souter's approach to these questions. Reasonable people may differ.

Interestingly enough, the cross-ideological nature of the Court's split also ensures that this sort of case will receive less attention than others in the confirmation process. Cases with clear ideological divisions are ready-made for ideological activists and partisan Senators, and they are the easiest to squeeze into a conventional media narrative about the battle between Right and Left. Yet in this sort of case, there is no clear "conservative" or "liberal" position, despite the Court's narrow division. So, while this case illustrates more of what's "at stake" in the confirmation, it does not raise the sort of issue that is likely to receive significant attention in the debate over Sotomayor's confirmation.

Related Posts (on one page):

  1. Is Melendez-Diaz Endangered?
  2. Souter, Sotomayor, & Melendez-Diaz v. Massachusetts:
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Monday Bear Blogging:

Here's another bear picture from my brief trip to Montana earlier this month. This one is a black bear we saw north of Old Faithful, shortly after our hike to Mystic Falls. My wife took it, so it's a much better picture.

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Sunday, June 28, 2009

Just Read the Bill:

First there was ReadtheBill.org. Now there's Just Read the Bill, Already! Could this be a trend?

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Obama Opposes Climate Protectionism?

An NYT story reports that President Obama "spoke out against a provision in the bill that would impose trade penalties on countries that do not accept global-warming pollution limits." If so, this is very encouraging. So I consulted the transcript of the interview upon which the Times' story was based, and here is what the President said:

Q. One of the provisions that got added very late to this bill that senators had expressed some reservations about was the one that puts tariffs on goods imported from countries that don't have these sort of restrictions. What do you think of that revision and would you like to see the Senate strip it out?

President Obama: At a time when the economy worldwide is still deep in recession and we've seen a significant drop in global trade, I think we have to be very careful about sending any protectionist signals out there. There were a number of provisions that were already in place, prior to this last provision you talked about, to provide transitional assistance to heavy manufacturers. A lot of the offsets were outdated to those industries. I think we're going to have to do a careful analysis to determine whether the prospects of tariffs are necessary, given all the other stuff that was done and had been negotiated on behalf of energy-intensive industries.

So certainly it is a legitimate concern on the part of American businesses that they are not disadvantaged vis-a-vis their global competitors. Now, keep in mind, European industries are looking at an even more ambitious approach than we are. And they obviously have confidence that they can compete internationally under a regime that controls carbons. I think the Chinese are starting to move in the direction of recognizing that the future requires them to take a clean energy approach. In fact, in some ways they're already ahead of us -- on fuel efficiency standards, for example, they've moved beyond where we've moved on this.

There are going to be a series of negotiations around this and I am very mindful of wanting to make sure that there's a level playing field internationally. I think there may be other ways of doing it than with a tariff approach.

This seems to be much more equivocal than the initial story suggested. The President certainly expressed skepticism about tariffs, but he hardly staked out a firm position -- we should be "very careful," we should study "whether the prospects of tariffs are necessary," but there "may" be alternatives. I hope the NYT's interpretation is correct, but I have my doubts.

On a tangential note, in the same interview -- which also included Energy Scretary Steven Chu and White House energy czar Carol Browner -- the latter erred when she suggested that CFC replacements were had yet to be developed when Congress enacted a CFC ban in the 1990 Clean Air Act. DuPont and other CFC producers began patenting and producing CFC substitutes years earlier. Indeed, these firms supported the CFC phaesout because it guaranteed a market for their alternative products.

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A War on Science?

Remember the Republican "war on science"? The Bush Administration was repeatedly accused of manipulating and suppressing scientific conclusions for scientific gain. While I thought this was politics as usual, others believed this was a concerted attack on scientific inquiry -- a "war on science." (See this chain of posts.) The Obama Administration has expressed concern about science politicization, but it is has been difficult to stop.

Two widely cited examples of this alleged war were revisions made to a government climate report by a former industry lobbyist and a NASA official's ham-handed efforts to prevent noted climate scientist James Hansen, a NASA employee, from commenting publicly on climate change policy. Could the Obama Administration be guilty of equivalent science politicization? Perhaps. Two weeks ago, Roger Pielke Jr. marshaled evidence that a government contractor with substantial industry ties may have been responsible for misrepresenting the relevant peer-reviewed scientific literature in an important government report on climate change. This past week, the EPA was accused of suppressing an agency's employee's comments on the EPA's proposed greenhouse gas "endangerment finding" (the official finding that greenhouse gas emissions may threaten public health and welfare). Here again, Pielke finds the parallel with the Bush Administration's conduct instructive.

And we should not be too quick to let Congress off the hook either. A key component of the last-minute compromise that enabled passage of the Waxman-Markey bill was the transfer of authority to evaluate carbon offsets from the EPA to the Department of Agriculture. Why was this done? Because farm-state Representatives believe the USDA is more likely to reach farmer-friendly conclusions than the EPA. As is so often the case in politics, it's more important to reach the "right" answer than for the answer to be right.

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Political Privilege & U. of Illinois Admissions:

The Chicago Tribune reports on a brewing scandal at the University of Illinois law school. Government officials pressured U. of I. administrators to admit politically connected but unqualified applicants. Paul Caron rounds up more coverage here.

As Brian Leiter notes, many of those attacking U. of I. officials are missing the bigger picture.

the University of Illinois is hostage to the public purse for a lot of its operations, so every request for 'special consideration' on admissions from a politician with influence on the purse strings comes with an implied threat: admit this student, or lose funding. One can be sure Chancellor Herman understands that. Attacking university officials over this scandal is like attacking the victim of a robbery for handing over his money.
Leiter concludes: "the same story is waiting to be written about admissions at every state university in the country." I would like to think that public universities in some states are more insulated from political pressure -- Illinois is Blago country, after all -- but that may be a bit naive.

Related Posts (on one page):

  1. Illinois Faculty Respond to the Tribune:
  2. University of Illinois Admissions
  3. Political Privilege & U. of Illinois Admissions:
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Mankiw on the Pitfalls of a Public Plan:

Gregory Mankiw evaluates the risk of a public health care plan.

Even if one accepts the president’s broader goals of wider access to health care and cost containment, his economic logic regarding the public option is hard to follow. Consumer choice and honest competition are indeed the foundation of a successful market system, but they are usually achieved without a public provider. We don’t need government-run grocery stores or government-run gas stations to ensure that Americans can buy food and fuel at reasonable prices.

An important question about any public provider of health insurance is whether it would have access to taxpayer funds. If not, the public plan would have to stand on its own financially, as private plans do, covering all expenses with premiums from those who signed up for it.

But if such a plan were desirable and feasible, nothing would stop someone from setting it up right now. In essence, a public plan without taxpayer support would be yet another nonprofit company offering health insurance. The fundamental viability of the enterprise does not depend on whether the employees are called “nonprofit administrators” or “civil servants.”

In practice, however, if a public option is available, it will probably enjoy taxpayer subsidies. Indeed, even if the initial legislation rejected them, such subsidies would be hard to avoid in the long run. . . .

Such explicit or implicit subsidies would prevent a public plan from providing honest competition for private suppliers of health insurance. Instead, the public plan would likely undercut private firms and get an undue share of the market.

President Obama might not be disappointed if that turned out to be the case. During the presidential campaign, he said, “If I were designing a system from scratch, I would probably go ahead with a single-payer system.”

Related Posts (on one page):

  1. Mankiw on the Pitfalls of a Public Plan:
  2. "Fannie Mae Health Care":
56 Comments

Congress Votes to Change the Weather.

As you undoubtedly know by now, Congress voted on Friday to change the weather — or more accurately, the climate. The idea that a government of one country could appreciably change the world's climate over the next 40 years is the ultimate hubris. Legislators may think they are God, but they're not.

The blogger Maxed Out Mama captures the silliness:

This is the most bizarre thing I have ever seen in my lifetime.

Let's hope it can be stopped in the Senate. Even if it is, our nation has lost something here, and that something is the principal legislative body's grasp on reality. It is as if the House of Representatives suddenly passed a vote to reduce gravity by 10 percent in order to lessen the costs of obesity to putatively cut Medicare costs in the future. Truly amazing.

A few months ago, if someone had to figure out a way to spend as much money and create as few jobs as possible, the Stimulus Bill would be pretty much the ideal piece of legislation.

With the Climate Bill, if someone had to waste as much money and destroy as many jobs and as much wealth as possible — and still have only a trivial effect on the environment — the Climate Bill would be pretty much the ideal piece of legislation.

PS: I was surprised how good much of the Republican debate in the House was. Many of the Representatives understood what was happening and seemed well prepared. Certainly, their grasp of the science was better than that of the Democrats who spoke.