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Saturday, July 11, 2009

"Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":

That's the headline on a CNSNews.com article. But if you look closely at what Judge Sotomayor actually did, the headline — and some other statements of the rest of the story — doesn't really fit. (Note that the CNSNews article has been linked to by quite a few other sources.)

Here's what happened in the case: Kristopher Okwedy's Keyword Ministries made a deal with a billboard company to put up the following billboards on Staten Island:

Word on the Street
4 WAYS TO SAY LEVITICUS 18:22
THOU SHALL NOT LIE WITH MANKIND AS WITH WOMANKIND: IT IS ABOMINATION (KING JAMES)
YOU SHALL NOT LIE WITH A MALE AS WITH FEMALE: THAT WILL BE LOATHSOME (JAMES MOFFAT)
DO NOT LIE WITH A MAN AS WITH A WOMAN: IT IS DETESTABLE (BERKLEY VERSION)
HOMOSEXUALITY IS ABSOLUTELY FORBIDDEN FOR IT IS AN ENORMOUS SIN (LIVING BIBLE)
I AM YOUR CREATOR
Guy Molinari, Staten Island Borough President, responded by sending a letter to the billboard company that said:
For the last two days we have attempted to contact your office, without success ....

I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus. As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.

The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.

Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.

P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force ... to discuss further the issues I have raised in this letter.

The billboard company then took the signs down. Okwedy and Keyword Ministries then sued Molinari for violating the Free Speech Clause, the Free Exercise Clause, and the Establishment Clause. (There was also an Equal Protection Clause claim, but that was in essence the same as the Free Speech Clause claim.)

What did the Second Circuit panel, on which Judge Sotomayor was a member, do? It held in some measure for Okwedy on his Free Speech Clause claim. It reasoned (in my view quite correctly) that "Plaintiffs’ Free Speech Clause claim turns on the question of whether Molinari’s letter ... was an unconstitutional 'implied threat[] to employ coercive state power to stifle protected speech,' or a constitutionally-protected expression by Molinari of his own personal opinion." And it reversed (again, in my view quite correctly) the district court's conclusion "that Molinari’s letter was constitutionally-protected speech because the 'letter ... was not reasonably susceptible to a threatening interpretation, and [Molinari] did not have regulatory authority over PNE’s business.'" The panel concluded that

[A] jury could find that Molinari’s letter contained an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. In his letter, Molinari invoked his official authority as “Borough President of Staten Island” and pointed out that he was aware that “P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.” He then “call[ed] on” PNE to contact Daniel L. Master, whom he identified as his “legal counsel and Chair of my Anti-Bias Task Force.” Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the “substantial economic benefits” PNE derived from its billboards in Staten Island.

The panel also issued an accompanying unpublished opinion rejecting the Free Exercise Clause and Establishment Clause claims. For both, it reasoned — again, in my view quite correctly — that Molinari's action was aimed at the anti-homosexual aspects of the message, not the religious aspects of the message. This meant that there was no Free Exercise Clause violation; as the Supreme Court's landmark Employment Division v. Smith decision held, religion-neutral laws are generally not violations of the Free Exercise Clause even when they're applied to people who have religious motivations for their actions. (The possible "hybrid claims" exception [see pp. 664-65 of this article if you want to know more about it] would in any event not apply, since it had been rejected by the Second Circuit by the time Okwedy was decided.)

There was also no Establishment Clause violation, for much the same reason; as the district court said (and on this the Second Circuit unpublished opinion endorsed the district court), " The letter responds to the message, not the religious source of the message. As plaintiffs acknowledge, the billboards were deliberately erected to convey an anti-homosexual message, and they were placed where plaintiffs believe that a substantial number of members of the gay community and their supporters would be exposed to it. That plaintiffs used a quotation from the Bible to convey their message does not give it extra protection, or insulate it from criticism by public officials." These are easy decisions given the Court's Free Exercise Clause and Establishment Clause caselaw, which is probably why the panel decided that they weren't worthy of a published opinion.

So the CNS headline, "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard," strikes me as at the very least quite likely to mislead readers. "Supported censoring," I think, is likely to make people think that she rejected the group's Free Speech Clause claim, and (to quote the second paragraph) "upheld a lower court's ruling ... against" the claimants. But the panel reversed the lower court's ruling against the claimants, and concluded that if indeed the government official was "censoring" the verse in the sense of threatening reprisals — as opposed to exercising his own free speech rights to condemn the speech — that would have violated the Free Speech Clause.

What's more, later on the story further errs by saying, "In their 'summary order' the judges ruled that the district court was correct to dismiss Okwedy’s claim that Molinari’s letter violated free speech rights." The summary order (that's the unpublished opinion I mentioned earlier) didn't uphold the district court's free speech ruling; it upheld its Free Exercise Clause and Establishment Clause rulings, and the published opinion reversed the free speech ruling.

Later in the opinion (in paragraph 20, by my count), the story acknowledges that the panel reversed the district court on something ("DePrimo also noted that the court issued two different opinions on the case, dismissing most of the case with the summary order, but writing a published opinion on one portion of the case that was sent back to the district court") but doesn't says that this reversal was on the free speech issue. Only in paragraph 29 does the story acknowledge that in "the court's written opinion, ... Okwedy's free speech claim was returned to the lower courts for a new ruling," and quotes Prof. William Marshall as saying that "The part that I saw, the speech piece of it, is a very pro-religious expression piece."

I think that the panel on which Judge Sotomayor sat handled the case quite correctly (though I'm sure that I'd disagree with Judge Sotomayor on lots of other issues in lots of other cases). But even if one disagrees with the panel, it seems to me that the description in the CNS News story is quite misleading.

Related Posts (on one page):

  1. "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":
  2. Family Research Council on the Okwedy v. Molinari Case:
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Family Research Council on the Okwedy v. Molinari Case:

This item also criticizes Judge Sotomayor for the panel decision that I note above. It at least acknowledges in the second paragraph that the panel held for Okwedy on one issue, but nonetheless concludes:

The case raises troubling issues. After all, the church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness. Would a billboard proclaiming "gay pride month," which is offensive to many Christians, have been similarly treated? Sotomayor should be asked.

Setting aside Okwedy's claim that the Molinari letter was an implied threat of government retaliation against the billboard company, which would have violated the Free Speech Clause — that's the issue on which Sotomayor and the other judges held Okwedy should prevail, if he could prove the factual underpinnings — there's little troubling in the panel decision. Government officials are entitled to criticize people who oppose homosexuality (or support polygamy or advocate pacifism or urge socialism), whether the people who are criticized are making religious arguments or secular arguments. And that's true even if the arguments simply quote the Bible; on matters such as these (I set aside purely theological questions such as the nature of the Trinity), moral beliefs have secular implications.

Religious speakers, like other speakers, have a right to be free from coercive suppression of their speech. But they have no right to be free from criticism of their speech (perhaps setting aside the purely theological issues I noted above, as to which the government is supposed to have no opinion). To the extent Molinari's actions might have constituted coercive suppression, the panel rightly let Okwedy try to prove that for his Free Speech Clause claim. But setting that aside, the criticism of hostility towards homosexuality (whether secular or religious) is not a constitutional violation.

Related Posts (on one page):

  1. "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":
  2. Family Research Council on the Okwedy v. Molinari Case:
14 Comments

The Most Jewish Greek Myth:

The myth of Aegeus:

When Theseus set out to defeat the Minotaur on Crete, Aegeus made him promise to set white sails on the way back, so that he would understand if the mission had been successful. Theseus, however, forgot to do so, and when Aegeas saw the ship return with black sails, he committed suicide by throwing himself off a cliff into the sea. From that day, the sea was named after him: the Aegean Sea.

The Moral: Call your parents. Make sure they know you're OK. They worry, you know?

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Welcome to Washington, Mr. Ricci:

Senate Republicans opted to call New Haven firefighters Frank Ricci and Ben Vargas to testify at Sonia Sotomayor's confirmation hearings in order to score political points against Judge Sotomayor over the issue of affirmative action. Now Judge Sotomayor's advocates are seeking to take Frank Ricci down a notch so as to blunt any effect of his testimony. McClatchy reports:

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who's at the center of Sotomayor's most controversial ruling. . . .

On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.

Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he's dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.

Last night, Slate posted "Fire Proof," an article by Dahlia Lithwick detailing Frank Ricci's litigious past.

UPDATE: Here's an NYT profile of the other firefighter testifying, Lt. Ben Vargas.

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Even Less Sunlight Before Signing:

A few weeks ago, the Obama Administration officially abandoned the President's "Sunlight before Signing" campaign pledge that the White House would post all legislation passed by Congress for at least five days before the President would sign it. In making this announcement, the Administration maintained that it would comply with the spirit, if not the letter, of the original commitment by posting legislation on the White House site once it became clear legislation would eventually pass and make it to the President's desk. This new commitment, they suggested, would actually provide even greater sunlight, as some bills would be available for review earlier and for a longer time. Well, this promise is no longer operative either, as the Cato Institute's Jim Harper details. Since the White House announced its new sunlight policy, nine additional pieces of legislation have been signed into law by the President and yet, as of yesterday, not one had been posted on the White House web site.

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Is the Copyright Royalty Board Unconstitutional? - Take Two:

On Tuesday, I noted the U.S. Court of Appeals for the D.C. Circuit's decision in SoundExchange, Inc. v. Librarian of Congress, in which it largely rejected a challenge to royalty rates set by the Copyright Royalty Board. Judge Kavanaugh wrote a separate concurrence noting that the manner of the CRB's appointment raises constitutional concerns. Yet SoundExchange had not challenged the constitutionality of the CRB, so the question was not before the court.

If SoundExchange wanted to challenge the royalty rates set by the CRB, why did it fail to press the constitutional challenge? Invalidating the CRB would seem to be an effective way of voiding the royalty rates at issue. Was it bad lawyering? I don't think so. Rather, it appears that SoundExchange made a strategic decision because invalidating the CRB altogether would be adverse to its economic interests and compromised its position in other proceedings.

Yesterday, a separate panel of the D.C. Circuit decided Intercollegiate Broadcast System, Inc. v. Copyright Review Board. SoundExchange was again a party, this time as an intervenor on the side of the CRB. In this case, the Intercollegiate Broadcast System (IBS) and others challenged the CRB's decisions setting rates and terms relating to webcasting and designating SoundExchange as the sole royalty collective. At some point in the litigation, petitioners argued the appointment of Copyright Royalty Judges to the CRB is unconstitutional, because the judges are appointed by the Librarian of Congress. Here, SoundExchange defended the CRB's constitutionality and argued the petitioners had forfeited the argument by not raising it in a timely fashion.

Had SoundExchange pressed the constitutional challenge in the first case, it could have produced an adverse result in the second -- and SoundExchange may have had more to lose from this result than it had to gain. Moreover, as a repeat player in copyright royalty disputes, SoundExchange could prefer fighting over the merits of individual decisions than forcing a complete restructuring of the administrative structure governing copyright royalties. Repeat players in other regulatory contexts often behave the same way, and larger challenges to administrative proceedings, whether constitutional or otherwise, are often brought by marginal industry players who are less invested in the structure of the status quo.

In any event, the D.C. Circuit again passed on the constitutional question, concluding the petitioners had forfeited the constitutional argument. Instead, the D.C. Circuit addressed petitioners' challenges to the CRB decisions on the merits, vacating the $500 minimum fee for both noncommercials and commercials but otherwise upholding the CRB's determinations. And so, resolution of the underlying constitutional question will have to wait for another day.

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Regulation Is Bad Karma

As state regulators discover yoga is an "industry," they've rushed in to regulate, and now the yoga "industry" is fighting back. The NYT reports:

Citing laws that govern vocational schools, like those for hairdressers and truck drivers, regulators have begun to require licenses for yoga schools that train instructors, with all the fees, inspections and paperwork that entails. While confrontations have played out differently in different states, threats of shutdowns and fines have, in some cases, been met with accusations of power grabs and religious infringement — disputes that seem far removed from the meditative world yoga calls to mind. . . .

Regulators said licensing the schools would allow states to enforce basic standards and protect customers who usually spend $2,000 to $5,000 on training courses, not to mention provide revenue for cash-starved governments. “If you’re going to start a school and take people’s money, you should play by a set of rules,” said Patrick Sweeney, a Wisconsin licensing official, who believes that in 2004 he was the first to discover the online registry and use it to begin regulating yoga teaching.

It appears from the story that the yogis have won their battle against regulation in New York; in other places, not so much.

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Robert Bork and the Contradictions of Conservatism:

Robert Bork's latest book epitomizes two key internal contradictions in conservative thought: the failure to recognize that government regulation of culture has many of the same flaws as economic regulation and the clash between constitutional originalism and judicial restraint. Not all conservatives make these errors. But both are common enough in the conservative movement to warrant critical scrutiny.

An outstanding scholar of the pathologies of antitrust policy and other economic regulation, Bork also advocates sweeping government censorship of the culture, including "censorship" (his word, not mine) of an extensive range of sexually explicit, supposedly offensive, or violent media. Yet he barely even considers the possibility that the limitations of government that bedevil economic regulation might also impact government efforts at cultural regulation. For example, like economic regulation, cultural regulation can easily be "captured" by interest groups, including the sorts of politically correct left of center interests that Bork and his fellow social conservatives intensely dislike. From a social conservative perspective, is it really a good idea to give government sweeping power over the culture if much of the time that power will be wielded by liberals or leftists?

I explore this contradiction in Bork's thought more fully in this symposium article. As Judge Frank Easterbrook pointed out at the same symposium, the central theme of Bork's influential antitrust scholarship is that government shouldn't "second-guess markets;" that lesson, of course, is equally applicable to cultural markets. The problem is not just that Bork supports one type of regulation more than another. It is that he largely ignores even the possibility that the two might have common weaknesses. Unfortunately, many (though by no means all) other conservative thinkers commit the same mistake.

Richard Epstein's review effectively nails the second major contradiction in Bork's thought: the tension between his support for constitutional originalism and his advocacy of broad judicial deference to the political branches of government:

Quite simply, any commitment to originalism must give broad readings to broad constitutional protections. A categorical insistence on judicial restraint is inconsistent with a faithful originalism that reads constitutional text against the background of the political theory that animated their adoption. Ironically, Bork’s insistence on the dominance of democratic processes finds, at most, lukewarm support in the Constitution, which at every turn — the electoral college, the early appointment of senators by state legislators, the presidential veto — shows a deep ambivalence toward the democratic processes that he selectively champions....

The same dilemma applies to the scope of federal powers that were clearly and strictly enumerated in Article I under the heading “all legislative powers herein granted.” Yet everyone knows that the great transformation wrought by the New Deal judges allowed, in Wickard v. Filburn (1942), the federal government to regulate a farmer that fed his own grain to his own cows under the commerce clause that provides that “The Congress shall have power…to regulate commerce, with foreign nations, among the several states and with the Indian tribes.” No originalist examination of text, structure, or history could defend that tortured interpretation.

As Epstein suggests, a consistently originalist Court would probably constrain the political branches of government much more than the current court that Bork denounces as anti-democratic. Many of the wide-ranging functions of the federal government that the Court currently upholds under the Commerce Clause could not withstand originalist scrutiny. Epstein also points out that property and contract rights would get more judicial protection under an originalist approach than Bork would like - a view supported by a growing body of historical scholarship by people like co-bloggers David Bernstein and Randy Barnett. Liberal scholar Jennifer Nedelsky has argued that the Framers sought to provide broad protection for property rights (a state of affairs she decries). Eugene Volokh has shown the the original meaning also would provide extensive protection for the sort of symbolic speech (such as flag burning) that Bork believes should be subject to wide-ranging censorship. The list can easily be extended.

One can advocate broad judicial deference to the legislature or one can be a consistent originalist. But it is getting harder and harder to support both simultaneously. Unfortunately, Judge Bork and many other legal conservatives continue to do exactly that. As Epstein notes, Bork is no fool but a man of "evident intellectual and stylistic talents" who made a major contribution to scholarship. The contradictions in his thought are not just personal idiosyncracies, but deeper shortcomings of a larger body of conservative thinking.

Obviously, liberal and leftist political thought has contradictions too, as does my own libertarianism (though I think it has fewer than the available alternatives). However, the shortcomings of rival ideologies don't justify those of conservatism.

UPDATE: Incorrect link to my symposium article criticizing Bork's argument for censorship has been corrected.

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Friday, July 10, 2009

Professors' Amicus Brief Supporting Incorporation of the Second Amendment

(and, most immediately, supporting the petition for certiorari in McDonald v. City of Chicago, in which the Court could decide on incorporation): It's available here, and it's signed by Jack Balkin, Randy Barnett, Michael Kent Curtis, Michael Lawrence, and Adam Winkler.

Of these, only our own Randy Barnett is known as a general pro-gun-rights from the conservative or libertarian (in his case, of course libertarian) camp, though Lawrence might also be a left libertarian (I don't know him as well as I know the others).

On the other hand, Balkin is a noted liberal. Curtis is also a liberal, though one with a lower public profile (but to my knowledge highly respected among law professors, and certainly highly respected by me, as a legal historian). Winkler is a liberal, a prominent critic of the Heller decision, and a supporter of the constitutionality of the D.C. handgun ban — he had filed a brief, together with Erwin Chemerinsky, on D.C.'s side in Heller.

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DoJ Attorneys in Dark About Surveillance Program:

Today's Washington Post reports:

The Bush White House so strictly controlled access to its warrantless eavesdropping program that only three Justice Department lawyers were aware of the plan, which nearly ignited mass resignations and a constitutional crisis when a wider circle of administration officials began to question its legality, according to a watchdog report released today.

The unclassified summary by five inspectors general from government intelligence agencies called the arrangements "extraordinary and inappropriate" and asserted that White House secrecy "undermined" the ability of the Justice Department to do its work.

We've known for some time that details about the surveillance program were held quite close within the Bush Administration, but I don't think we knew just how close.

Only three Justice Department officials -- Ashcroft, former Office of Legal Counsel lawyer John C. Yoo, and intelligence policy lawyer James Baker -- were read into the electronic surveillance initiative. Many of their superiors were kept in the dark, the unclassified summary reported for the first time today.

One former department lawyer, Jay S. Bybee, told investigators that he was Yoo's superior in the Office of Legal Counsel but was never read into the program and "could shed no further light" on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.

The report said Yoo prepared hypothetical documents in September and early October 2001 before writing a formal memo in November, after Bush had already authorized the initiative. . . .

The full outlines of the program remain murky and subject to strict classification, but the inspectors general report said that Yoo "did not accurately describe the scope" of other intelligence activities in the President's Surveillance Program, presenting "a serious impediment to recertification of the program."

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Federalist Society Online Debate on the Sotomayor Nomination Unfolding

here. As you might expect from the Federalist Society, the panelists are an ideologically mixed group -- Tom Goldstein, Wendy Long, Prof. Louis Seidman, Prof. David Stras, and Ed Whelan.

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"Deference":

An exchange between the majority and the dissent in Norwood v. Vance, decided yesterday by the Ninth Circuit. The issue:

Defendants claim the district court erred by refusing to give the following jury instruction:

In considering whether defendants were deliberately indifferent to the need for outdoor exercise, the jury should consider that defendants had a competing obligation under the Eighth Amendment to ensure the safety of prisoners, including protecting prisoners from each other. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

The district court initially agreed to the language but, after plaintiff objected, declined to include it on the ground that “deference” was “undefined.”

Part of Chief Judge Kozinski's argument for the majority:

The district court declined to give the proposed instruction because the meaning of deference would not be “clear to a lay person.” But “deference” is not Urdu or Klingon; it is a common English word. See, e.g., Michael Crichton, Airframe 78 (1996) (“[S]he certainly knew where all the bodies were buried. Within the company, she was treated with a deference bordering on fear.”). It may be true that deference has varied meanings, Dissent at 8515 n. 4, but so do most English words. If the district judge believed the term needed further context or definition, he could have provided it.

Part of Judge Thomas's dissent:

The majority criticizes the trial judge on this point, contending that deference is a commonly understood lay term, and could not have been confusing. However, its citation of language in the novel Airframe illustrates the problem. Instructing a jury to give prison officials deference, if deference commonly “borders on fear,” is not a correct application of the law and would have amounted to directing a verdict in favor of the government. Even in our sterile legal environment, deference comes in varietals, such as Chevron deference, Skidmore deference, and sardonic deference. See, e.g., Massiah v. United States, 377 U.S. 201, 208 (1964) (White, J., dissenting) (“With all due deference, I am not at all convinced that the additional barriers to the pursuit of truth which the Court today erects rest on anything like the solid foundations which decisions of this gravity should require.”). And, of course, there is more than one breed of institutional deference relevant to this case. See, e.g., McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989) (correctly noting that we must be “mindful of the deference due the verdict of a jury”) (citation omitted). Here, the trial judge quite rightly concluded that to give an instruction that mixed legal standards and, in effect, told the jury to layer deference upon deference, was not appropriate -- particularly when the judge had already given an entirely proper instruction on the topic. (I must, however, acknowledge that the majority is quite correct in intuiting that, unsurprisingly, there is no Klingon word for “deference.” See generally Marc Okrand, THE KLINGON DICTIONARY (Star Trek 1992)).

Thanks to commenter Dave N for the pointer.

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"Motion to Compel Defense Counsel To Wear Appropriate Shoes":

From Lowering the Bar, via Cory Doctorow (boingboing):

1. This is an action alleging personal injuries . . . .

2. Trial is set to begin on June 15, 2009.

3. It is well known in the legal community that Michael Robb, Esquire, wears shoes with holes in the soles when he is in trial.

4. Upon reasonable belief, Plaintiff believes that Mr. Robb wears these shoes as a ruse to impress the jury and make them believe that Mr. Robb is humble and simple without sophistication. . . .

* * *

6. Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles. Mr. Robb is known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury . . . .

7. Then, during argument and throughout the case Mr. Robb throws out statements like "I'm just a simple lawyer" with the obvious suggestion that Plaintiff's counsel and the Plaintiff are not as sincere and down to earth as Mr. Robb.

8. Mr. Robb should be required to wear shoes without holes in the soles at trial to avoid the unfair prejudice suggested by this conduct.

See also this Palm Beach Post article.

UPDATE: Thanks to commenter Ming etc. for the pointer to this followup story:

A lengthy auto negligence case ended in a mistrial this week after jurors saw and discussed a Sunday Palm Beach Post column about two lawyers in the case.

Jurors had heard nine days of testimony and were about to hear closing arguments Monday when a juror showed other panel members Frank Cerabino's column headlined "Does lawyer who bares sole have ace in the hole?" Palm Beach County Circuit Judge Donald Hafele had earlier instructed jurors not to read or consider any information about the case outside court and not to discuss the case at all before they began deliberations....

Hafele, however, did not tell the jurors of the mistrial and allowed them to deliberate and reach an "advisory verdict." In that verdict, which will not apply, jurors found Bone's client should receive the entire $2.2 million in damages he had sought....

The case will likely have to be tried again, [Bone] said, and that will again cost more than $50,000 in expenses....

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And Yet Another Bush EPA Air Rule Invalidated:

Today the U.S. Court of Appeals for the D.C. Circuit invalidated yet another of the Bush EPA's air pollution regulations. In this case, NRDC v. EPA, the D.C. Circuit struck down various rules promulgated in 2005 and 2007 involving implementation of the 8-hour National Ambient Air Quality Standard for ozone. As I have noted before (see, e.g., here and here), the EPA has had a particularly difficult time defending air pollution regulations adopted under the Bush Administration, both those related to the Administration's "Clear Skies" initiative and otherwise.

Not every challenged air pollution control decision made by the EPA under the Bush Administration has been invalidated, however. Indeed, earlier this week, in Catawba County v. EPA, another panel of the D.C. Circuit largely upheld the EPA's area designations for application of the national ambient air quality standards for fine particulates. Still, the Bush EPA's record at making air pollution policy decisions capable of withstanding judicial review was quite poor -- remarkably so.

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How Ricci Almost Disappeared:

Stuart Taylor has an interesting post on how the Ricci case almost evaded the attention of other Second Circuit judges, let alone the Supreme Court.

Related Posts (on one page):

  1. How Ricci Almost Disappeared:
  2. "What Really Happened" in Ricci:
  3. Ricci Revisited:
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Michael Jackson's Patent:

 

A system for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface. The shoes have a specially designed heel slot which can be detachably...
Inventors: Michael J. Jackson, Michael L. Bush, Dennis Tompkins
Assignees: Triumph International, Inc.
Primary Examiner: M. Denise Patterson
Judging by media-reported connections between Jackson, Bush, and Tompkins, this is indeed the famous Michael J. Jackson.

Thanks to John Shafer (ZiefBrief); ZiefBrief is the blog of USF's Dorraine Zief Law Library. The post reports, "To check out the invention in action you will need to track down a copy of Michael's video Smooth Criminal."

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Wisconsin Diploma Privilege in Danger:

Yesterday the U.S. Court of Appeals for the Seventh Circuit overturned a federal district court's dismissal of a suit challenging the constitutionality of Wisconsin's diploma privilege. Under Wisconsin law, graduates of the University of Wisconsin and Marquette University law schools are automatically admitted to the Wisconsin bar. All others must either fulfill an out-of-state practice requirement or take the bar exam to practice law within the state. The lawsuit challenges this arrangement under the dormant commerce clause on the grounds that it discriminates against graduates of out-of-state law schools. How Appealing rounds up some early news coverage here.

This is an interesting lawsuit on many levels. One question, assuming this lawsuit is ultimately successful, is what the proper remedy should be if the diploma privilege is deemed unconstitutional. The plaintiffs would like the court to invalidate the in-state requirement, effectively requiring the admission of all law school graduates. I cannot imagine a court imposing such an order, and the Seventh Circuit opinion is also dubious of this claim. So were the plaintiffs ultimately successful, it would likely mean that either a) all lawyers seeking admission to the Wisconsin bar would have to take the bar exam or meet some practice requirement, or b) the state would impose a new, non-discriminatory rule for bar admission. Imagine if the state revised its rules so that bar admission was only automatic for those who successfully complete a "Wisconsin practice" class in the course of their studies. Wisconsin and Marquette would almost certainly offer such a class, but I doubt many out-of-state schools would. In either case, the barrier to the plaintiffs' ability to practice law in Wisconsin would no longer be discriminatory, but it might not be any lower. Could they still claim their injury would be redressed? It's an interesting question, and this is an interesting case.

Related Posts (on one page):

  1. Wisconsin Diploma Privilege in Danger:
  2. Is Wisconsin Diploma Privilege in Danger?
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D.C. Police Checkpoint Plan Likely Violates the Fourth Amendment:

So says the U.S. Court of Appeals for the D.C. Circuit, reversing a district court decision that denied a preliminary injunction against the plan. Orin blogged about this last year, and largely anticipated the D.C. Circuit's conclusion. As my very brief post on this last year suggests, I think the D.C. Circuit got it quite right.

Thanks for How Appealing for the pointer.

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Epstein on Bork:

In the latest issue of Regulation, Richard Epstein has a scathing review (go to page 3) of Robert Bork's latest book, a collection of his writings over several decades:

what is so striking about Bork's collection of ipse dixits is that they never rest on the close and careful reading of text that the originalist method mandates. Thus, the real indictment of Bork lies not in the views that got him into such hot water in his 1987 confirmation hearings. Historically, the regulation of contraception was subject to state regulation under the police power, notwithstanding Justice William O. Douglas's artful invocation in Griswold v. Connecticut of "penumbras" of the Bill of Rights. What really makes Bork a disappointing constitutional scholar is that his moral self-indulgence has led to an utter lack of intellectual discipline.

So this review ends by pointing out this historical irony: When Bork was constrained by the institutional requirements of the judicial role, his evident intellectual and stylistic talents shone through. He was an excellent judge. Indeed, had history been kinder to him, he would have been a distinguished Supreme Court justice because his temper would have been held in check by the norms of his office. But I couldn't persuade a soul of the soundness of that counterfactual judgment if one took his extrajudicial writings as a barometer of probable judicial performance.

Sadly, it is easy to explain why a great antitrust scholar has had so little influence in constitutional law. Bork may think it is time for him to speak out on constitutional issues. But most people will just tune him out, and for good reason.

Harsh, but not unfair. I often describe Bork as "an originalist who seems to have little interest in history," but who instead uses originalist arguments to support a preconceived ideology of judicial restraint and social conservatism.

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A New (to Me) Data Source for Legal Research Junkies:

The Westlaw TRIALORDERS-ALL database, which contains "selected civil trial court orders from state trial courts state trial court opinions." Most of these are, to my knowledge, not findable in the ALLSTATES database.

TRIALORDERS-ALL has been around for at least a couple of years, but I hadn't heard of it, so I assume that many of our readers wouldn't have heard about it, either. Potentially very useful if you're researching the kinds of issues that only rarely make their way to appellate courts, or if you want to figure out more details about what happened at trial in a particular case that did go up on appeal.

Another interesting database: STATE-FILING-ALL, which contains various filings in state trial courts.

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No "Coup" in Honduras:

Miguel Estrada, a native of Honduras who was also part of the official U.S. delegation to ousted Honduran President Manuel Zelaya's 2006 inauguration, makes a powerful case in the L.A. Times that there was no "coup" in Honduras, and that Zelaya was lawfully removed from office (even if unlawfully removed from the country. His article concludes:

It cannot be right to call this a "coup." Micheletti was lawfully made president by the country's elected Congress. The president is a civilian. The Honduran Congress and courts continue to function as before. The armed forces are under civilian control. The elections scheduled for November are still scheduled for November. Indeed, after reviewing the Constitution and consulting with the Supreme Court, the Congress and the electoral tribunal, respected Cardinal Oscar Andres Rodriguez Maradiaga recently stated that the only possible conclusion is that Zelaya had lawfully been ousted under Article 239 before he was arrested, and that democracy in Honduras continues fully to operate in accordance with law. All Honduran bishops joined Rodriguez in this pronouncement.

True, Zelaya should not have been arbitrarily exiled from his homeland. That, however, does not mean he must be reinstalled as president of Honduras. It merely makes him an indicted private citizen with a meritorious immigration beef against his country.

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Obama's Books Raise National Security Concerns?!?

The AP reports:

Ahmed Omar Abu Ali is serving a 30-year sentence at the federal supermax prison in Florence, Colo., for joining al-Qaida and plotting to assassinate then-President George W. Bush. Last year, Abu Ali requested two books written by Obama: "Dreams from My Father" and "The Audacity of Hope."

But prison officials, citing guidance from the FBI, determined that passages in both books contain information that could damage national security. . . .

Prison officials cite specific pages - but not specific passages - in the books that they deem objectionable. They include one page in Obama's 1995 book, "Dreams from My Father," and 22 separate pages in his policy-oriented 2006 book, "The Audacity of Hope." It was not immediately obvious what passages might have been deemed problematic, though nearly half of the pages cited are in a chapter devoted to foreign affairs.

(Hat tip: How Appealing.)

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Thursday, July 9, 2009

(Not Just) Another DOMA Challenge:

The federal complaint in Commonwealth v. HHS was filed yesterday by Massachusetts, which is asking for federal recognition of its same-sex marriages, not for the invalidation of all state laws limiting marriage to opposite-sex couples. Massachusetts makes two federalism-based constitutional claims against Section 3 of DOMA, which defines marriage as the union of one man and one woman for purposes of federal law.

The first claim is that Section 3 "violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism" by creating an extensive federal regulatory scheme in a field ("domestic relations") reserved exclusively to the states. Complaint at 22. That, says Massachusetts, interferes with a state's traditional authority to define marriage as it sees fit.

The second claim is that Section 3 "violates the Spending Clause" because it (a) induces the state to violate the Equal Protection Clause and because (b) "there is no nexus between discriminating against individuals in same-sex marriages and the purposes advanced by" specified federal programs. Complaint at 23-24.

The lawsuit is different from other pending challenges to Section 3, see here and here, because it's brought by a state, not gay couples, and because the core issue is federalism, not individual rights.

As a policy matter, the Massachusetts lawsuit is a compelling challenge to DOMA. The Complaint offers some very interesting examples of ways in which Section 3 complicates a state's recognition of same-sex marriages and withholds important benefits from gay families. These range from large and important federal deprivations, arising from programs like Social Security and Medicaid, to obscure but poignant ones.

In the latter category, for example, falls federal funding for state-run veterans cemeteries, where both vets and their spouses are eligible to be buried. Massachusetts was told by the Veterans Administration that it would lose federal money for upkeep of a cemetery if it allowed the same-sex spouse of a vet to be buried there. Complaint at 20-21. A six-page addendum specifies some of the more than 1,000 ways that federal law confers entitlements or imposes obligations on married couples — all of which are limited to opposite-sex couples under Section 3.

Moreover, again as a policy matter, the Massachusetts lawsuit convincingly sketches several ways that Section 3 enlarges federal authority and undermines state authority in an area of traditional state control. Section 3 complicates, and imposes identifiable costs upon, a state's recognition of its own citizens' same-sex marriages. The state, in essence, must keep separate books for same- and opposite-sex marriages where eligibility for federal benefits is concerned. And, if it wants same-sex couples to have the same benefits available to opposite-sex couples, it must make up the difference out of its own revenues. Section 3 is a departure from the tradition of federal reliance on the states' definition of marriage, as Massachuestts says. There is a genuine concern about state authority here. Overall, these policy arguments are a strong rebuttal to the Obama DOJ's view that federal "neutrality" justifies Section 3 because otherwise non-SSM states will be forced to subsidize SSM in places like Massachusetts.

But I am less persuaded that these concerns rise to constitutional dimensions, at least under existing precedents. For all the harm it does, DOMA does not forbid a state to define marriage as it sees fit. DOMA does not forbid a state to provide equal marital benefits and privileges to same-sex couples under its own laws and programs. At most, it makes a state's recognition of same-sex marriages more cumbersome and costly than it would be if the federal government continued to defer to the state definition. This could, at least in theory, though probably not in fact, discourage a state from trying same-sex marriage.

All of Massachusetts' examples of federal "imposition" of unprecedented costs and regulation are in fact uses of Congress's Spending power. As the Court understands that power, in South Dakota v. Dole, Congress can spend in areas it could not directly regulate. Congress is free to dangle monetary carrots or brandish financial sticks within very broad limits, even in areas historically left to state power. The connection between a condition on the funds and the spending program itself need only be "rational." In the Wonderland of Constitution-speak, a law can be crazy without being irrational.

Massachusetts also appears to rely on a case called New York v. United States to argue that Congress is "commandeering" it to administer a discriminatory federal program. But there's nothing unusual about Congress's decision to set up a federal benefits program and then define the limits of eligibility. A state might want the retirement age to be 55, but Congress can make it 62 or 65 or 105. A state might want to make the middle class eligible for assistance in obtaining health benefits, but Congress can limit federal eligibility to poor people — as it defines "poor." All of these things might increase a state's administrative costs, discourage experimentation, and be terribly unfair to people left out. But that doesn't make them unconstitutional.

What Congress can't do, to be sure, is to limit eligibility in a way that violates constitutional rights. It couldn't make Medicaid available only to whites. Congress also can't try to induce a state to violate individual constitutional rights. It couldn't deny Medicaid money to states that permit abortion. Parts of Massachusetts' Complaint do, in fact, argue that denying marriage to same-sex couples would violate equal protection principles. That's the implication of the state's claim that DOMA forces it into either facilitating the federal government's marriage discrimination or losing federal aid.

In that respect, Massachusetts' lawsuit is a cousin to the existing DOMA challenges. Success for Massachusetts would likely help advance a result it expressly disclaims: the invalidation of all laws excluding gay couples from marriage. The upshot, then, is that a lawsuit to protect state power against a one-size-fits-all federal definition of marriage would hasten a one-size-fits-all federal definition of marriage.

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Interesting Opinion About DEA's Revoking License to Distribute Sudafed-Like Products:

The opinion in Novelty, Inc. v. DEA is dated June 22, but it seems to have been released just a couple of days ago. There's a particularly interesting dissent by Judge Janice Rogers Brown, which begins:

Tellingly called poor man’s crack (especially telling, as crack is already poor man’s cocaine), methamphetamine -- meth -- is a national scourge....

But we don’t toss the law aside in our zeal to eradicate even an obvious menace. The Deputy Administrator (DA) here has done just that,[fn1] in the process crippling a successful enterprise and costing many employees their jobs. In rejecting the ALJ’s recommendation that Novelty be allowed to retain its registration, the DA transforms a trivial violation of Novelty’s own rules into an imminent danger to the public health and shifts the burden to Novelty to explain why some of the thousands of convenience stores it services are busier than others. Subject to this perverse alchemy, ordinary business practices somehow provide proof of rampant lawlessness. Thus, the DA (1) misreads a statute so any place used for distribution is a “principal place of business,” even a padlocked storage shed; (2) uses the average sales of every convenience store serviced by Novelty as a proxy for legitimate demand at each location without regard to any individual characteristics; and (3) finds Novelty’s efforts to stay in business after its registration was suspended to be proof of villainy. Because “[t]he war on drugs is not an excuse to violate the norms of fair play and evenhandedness,” United States v. Cuellar, 478 F.3d 282, 307 (5th Cir. 2007) (en banc) (Smith, J., dissenting), rev’d 128 S. Ct. 1994 (2008), I respectfully dissent....

[Footnote 1:] As the Administrative Law Judge (ALJ) perceptively observed, no party “dispute[s] that illegal methamphetamine is a major drug problem in the United States,” but the agency “seems to be trying to remedy this problem by restricting or eliminating the availability of such over-the-counter products by removing the distributors of [these] products to convenience stores from the market place” altogether, despite lacking sufficient record evidence. In re Novelty Distrib., No. 08-33, slip op. at 93 (May 21, 2008) (Recommended Ruling of the Administrative Law Judge) (“ALJ Ruling”).

An interesting issue that the court didn't squarely deal with (Judge Henderson rejects it out of hand, but Judge Tatel simply concludes that it's irrelevant to the license revocation dispute, and Judge Brown doesn't address it) is whether the DEA investigators violated the First Amendment by restraining "Novelty’s video and audio recording of DEA investigators while they conducted their investigation."

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J.D. Salinger's Lawsuit Over the Sequel (?) to Catcher in the Rye:

I didn't see the decision granting a preliminary injunction to Salinger until this week, so I thought I'd blog a link. A very interesting case, and I think the opinion helps show the problems caused by the current fair use framework (though I'm not sure I know of a better one), which requires judges to become literary critics.

Related Posts (on one page):

  1. J.D. Salinger's Lawsuit Over the Sequel (?) to Catcher in the Rye:
  2. A Sequel or a Commentary on "Catcher in the Rye"?
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"Father Shall Not Use Profanity or Racial Epithets in the Boys' Presence or Within Their Earshot":

That's from a Delaware Family Court order that came out in 2002, JJ.W. B. v. K.A. B., 2002 WL 31454072 (Del. Fam. Ct.), but that I just came across. If the father used such words in violation of the court order, he would be subject to criminal prosecution for contempt (though practically speaking it seems likelier that the court would further reduce his visitation time with the children).

For more on this broad issue, check out Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006). If this order is constitutional, what other orders would be permitted? For instance, say that the father was expressing racist views, or harshly anti-government views. Could a court also bar the expression of such views within the children's presence? (In particular, the father in this case apparently often said "niggers need to burn in hell," and the child apparently "on one occasion ... made the statement to an African American child in the neighborhood." What if the father had said "blacks are intellectually inferior to whites," or "whites are a bunch of racists that are trying to keep us blacks down," and the child repeated this? Or what if the father taught the child this, but successfully taught the child not to repeat it to others?)

Also, these children were nearly 6 and 4½. If you think that's relevant, at what age would a parent regain his constitutional right to express various views — even views that we may think children shouldn't be taught — around his children?

As you might gather, from this post and from the article, these sorts of speech restrictions strike me as extremely troubling. And though I agree that it is indeed against a child's best interests to hear certain kinds of statements, and to learn evil ideologies from his parents, allowing courts to restrict parental speech strikes me as quite dangerous. Nor is this danger hypothetical; for examples of courts holding against parents' based on their atheism, advocacy of homosexual rights, and a variety of other ideologies, see the Introduction and Appendix to my article. I argue in the article that such diminution of parental rights based on parents' speech is generally unconstitutional. But this should be even clearer as to a court order banning certain speech, as in this case.

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A Bizarre Claim About Netanyahu in Ha'aretz:

Ha'aretz has a story that makes Netanyahu sound like a loon (which, given Ha'retz's political perspective, is exactly how they want to make him sound). According to the story:

"He thought that his speech at Bar-Ilan would become mandatory reading at schools in the United States, and when he realized that Obama gave no such order, he went back to being frustrated," one of his associates said.

Oh, come on! Bibi went to high school in the U.S., came back to the U.S. for graduate school and to work in a consulting job, and served in the Israeli embassy in Washington and then as Israel's ambassador to the U.S. Given his extensive background in the U.S., what is the likelihood that Netanyahu thinks that the President of the United States has the power, or would have the inclination even if he had the power, to order that an Israeli prime minister's speech be read in U.S. public schools? I'd say the likelihood is zero.

I don't know if the correspondent made this story up, or whether he naively wrote down what someone else told him. But Ha'aretz, which tries to be a respectable news source, really dropped the ball on this one. (The story also claims that Netanyahu refers to Axelrod and Emmanuel as "self-hating Jews," but the author has already lost his credibility with me.)

UPDATE: Commenters have persuaded me that this is likely just a bad translation of a Hebrew figure of speech. But given that the theme of the article is how erratic and paranoid Netanyahu is, I couldn't tell.

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Race and Liberty in America:

Damon Root has an interesting review of this book, which the publisher describes as explaining "the major themes of the anti-racist, classical liberal tradition of individual liberty and equality."

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Witness List for Sotomayor Hearing Released: The New York Times reports that the witness lists for the Democrats and Republicans on the Senate Judiciary Committee have been released and they include 2 VC bloggers. (H/T Josh Blackman via FB).

For the Democrats:
Mayor Michael Bloomberg of New York; Chuck Canterbury, president of the Fraternal Order of Police; David Cone, former Major League Baseball pitcher; JoAnne A. Epps, dean of Temple University Beasley School of Law, on behalf of the National Association of Women Lawyers; Louis Freeh, former director of the F.B.I.; Michael J. Garcia, a former United States attorney in New York; Wade Henderson, president of the Leadership Conference on Civil Rights; Patricia Hynes, president of the New York City Bar Association; Arkansas Attorney General Dustin McDaniel; District Attorney Robert Morgenthau of Manhattan and Ms. Sotomayor’s former boss; Ramona Romero, president of the Hispanic National Bar Association; Representative Jose E. Serrano of New York; Theodore M. Shaw, professor at Columbia Law School; Kate Stith, professor at Yale Law School, and Representative Nydia Velázquez of New York, chairwoman of the Congressional Hispanic Caucus.
For the Republicans:
Linda Chavez, president of the Center for Equal Opportunity; Sandy Froman, the former president of the National Rifle Association; Dr. Stephen Halbrook, lawyer and gun-rights advocate; Tim Jeffries, founder of P7 Enterprises, a management consulting firm; Peter Kirsanow, a commissioner on the federal Commission on Civil Rights; David Kopel, a lawyer with the Independence Institute; John McGinnis, professor at Northwestern University Law School; Neomi Rao, professor of George Mason University School of Law; Frank Ricci, director of Fire Services in New Haven and the plaintiff whose discrimination case was decided in his favor by the Supreme Court; David Rivkin, a former associate White House counsel in the Bush-Quayle administration and now a partner at Baker, Hostetler law firm; Nick Rosenkranz, professor at Georgetown University School of Law, Ilya Somin, professor at George Mason University School of Law; Lieutenant Ben Vargas, New Haven Fire Department; Dr. Charmaine Yoest, Americans United for Life.

"Liberal and Conservative Agree on Bill of Rights,"

from Reason.TV. Pretty funny -- and, hey, the Third Amendment plays an important role, which is always a treat.

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No Stickers in the Richmond Coliseum:

The Richmond Times-Dispatch reports:

The Virginia Citizens Defense League ... says officials at the Richmond Coliseum recently attempted to stop members from handing out blaze-orange "Guns Save Lives" stickers before an appearance by radio and television talk-show host Glenn Beck....

Van Cleave said the confrontation occurred June 6 as guests were arriving to see Beck, a defender of guns-rights and other personal liberties. Group members were handing out stickers when Coliseum officials told them to stop and advised that stickers were banned from the city-owned venue, he said.

"Our people stood their ground, [saying] this is public, this is freedom of speech," Van Cleave said.

Then, Coliseum officials turned their attention to people who were wearing the stickers as they entered the building. "They had to throw the stickers away," he said. "They couldn't hide it."

Van Cleave said most people followed the instructions. He said the incident was particularly disturbing because other stickers were being worn into the show without any apparent objection....

Rebecca K. Glenberg, legal director for the American Civil Liberties Union of Virginia, said members of Van Cleave's group were clearly within their rights if they were handing out stickers on public property. She said it's less clear whether Coliseum officials could ban stickers but added that any restriction would have to be enforced evenly and be reasonable in a way that's unrelated to content....

I assume from the story that the Richmond Coliseum is government-owned, and if that's so then it's hard to see how it could permissibly ban the wearing of stickers (as it does; the rule seems to have been added at some point in 2009, and Van Cleave says it was "added after the Beck show"). Even distribution of the stickers, like the distribution of leaflets, might well be constitutionally protected even in a nonpublic forum such as a sports arena. But the case for First Amendment protection for the wearing of stickers strikes me as even stronger, even if the no-stickers policy is being enforced evenhandedly. And if it is indeed enforced only against particular messages, then the violation would be especially clear.

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Bleg--Wages, Unions, and Productivity:

I have a couple of sentences in a forthcoming manuscript that I'd either like to provide further footnote support for, delete if they are not true, or provide citations on both sides if the issue is disputed:

(1) there is no historical correlation in the U.S. between levels of union membership and wage growth; and

(2) wages during the Lochner era (approximately 1897 to 1937) and beyond rose with productivity.

(3) Workers' wages, working conditions, and standards of living rose consistently from the 1880s through the early 1920s despite massive immigration of unskilled workers.

If you can help, please provide citations in the comments.

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Sotomayor Hearing Witness List:

The Senate Judiciary Committee has released the list of witnesses who will testify at Judge Sonia SOtomayor's confirmation hearings. There are some familiar names on the list, including two of conspirators: Ilya Somin and David Kopel.

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"Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms, Defend Life, and Practice Religion":

The latest version of this forthcoming Stanford Law Review article of mine -- considerably improved, I think, over the earlier version that I excerpted on the blog -- is now available. I'd love to have more feedback on it; it's already in the editing process, but there's still plenty of time to make changes.

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Questions for Specialty Journal Editors:

I've talked to some people who are considering setting up specialty journals, and given them some advice (usually cautioning them that it's very hard to get such a journal off the ground and make it successful). But I thought it would be good to get some feedback from people who have actually worked on such journals.

If you have such recent experience (say, in the last five years), could you please post something that includes the following:

  1. A rough sense of your journal's subject matter and the ranking of your law school. If you want to keep your journal's name out of it, a rough ranking (e.g. "the school is in the #11-20 range in the U.S. News list") and the subject matter would be just fine.

  2. Your sense of the quality of the articles that you managed to get.

  3. Some things your journal has done that improve the quality of the articles that you get (e.g., running symposia, if you did that and you thought that was helpful, having a subject matter that is for some reason unreasonably looked down on by higher-ranked journals, and so on).

  4. Your sense of the value of the experience to you, as educationally, as a credential, and as a fun project, whether or not you thought that the journal got to publish very good articles.

  5. Whatever other thoughts you might have on the subject.

Many thanks!

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Libel Lawsuit Over Wikipedia Edits,

as reported by Ed Brayton in The Michigan Messenger:

Longtime Ingham County Commissioner and Michigan political consultant Mark Grebner has filed a defamation lawsuit in Ingham County Circuit Court against three men for allegedly editing false and defamatory information into his biographical entry on Wikipedia.

The three defendants are Dennis Lennox, a Central Michigan University student who received a great deal of attention over the last few years for a string of politically-charged incidents on that campus and was elected Cheboygan County drain commissioner last year; Bradley Dennis, a member of the Michigan State University College Republicans who ran an unsuccessful campaign against Grebner for the Ingham County Commission last fall; and MSU sophomore Anthony Giammarinaro.

The three are accused of editing Grebner’s Wikipedia entry to include information that Grebner, a Democrat, argues is false and libelous....

The lawsuit is not against Wikipedia itself, so there isn't any 47 U.S.C. § 230 problem. In many ways, it's a traditional libel lawsuit against the alleged authors of the libel. Still, it seems to be one of the first lawsuits filed against people who have written or edited Wikipedia entries, so I thought I'd note it. Many thanks to Jason Miller for the pointer.

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Nevada Supreme Court on Reference Works with Reader-Generated (and Largely Unedited) Content:

The Nevada Department of Motor Vehicle refused William Junge's request for a personalized license plate that read HOE; the DMV reasoned that "HOE was slang for 'whore.'" (Junge said it was short for Tahoe, and part of his overall Tahoe theme for his car: "Although Junge would have preferred TAHOE for his plate message, he settled on HOE because his first choice was unavailable. For his plate background, Junge initially selected the Lake Tahoe panoramic setting to adorn his 1999 Chevy Tahoe.")

The Nevada Supreme Court, in DMV v. Junge, reversed the denial of the plate, but its reasoning goes beyond the surprisingly substantial but rather frivolous field of License Plate Law:

[B]y its own admission, DMV based its decision solely on the Urban Dictionary. Moreover, DMV revealed a policy of only consulting Urban Dictionary to determine if a word is inappropriate or offensive.

Urban Dictionary is predominantly an online dictionary, although a paper version based on the online content was published in 2005. See http://www.urbandictionary.com/book.php (last visited June 10, 2009). Its definitions are user contributed and are generally anonymous. There is no limit to the number of definitions that a user can contribute.

Since definitions are user contributed, they can be personal to the user and do not always reflect generally accepted definitions for words. See generally http://www.urbandictionary.com/tos.php (last visited June 10, 2009). In fact, Urban Dictionary acknowledges that "[i]ts content is frequently presented in a coarse and direct manner that some may find offensive." See http://www.urbandictionary.com/tos.php (last visited June 10, 2009). Moreover, Urban Dictionary readily admits that it "cannot control all [c]ontent posted by third parties to the [w]ebsite, and does not guarantee the accuracy, integrity or quality of such [c]ontent." Id. Furthermore, Urban Dictionary concedes that it "does not and cannot review all [c]ontent posted to or created by users accessing the [w]ebsite." Id. Thus, Urban Dictionary allows, if not encourages, users to invent new words or attribute new, not generally accepted meanings to existing words.

We acknowledge that the Iowa Supreme Court upheld the use of [Jonathon] Green's Contemporary Dictionary of Slang (1985) to review personalized license plates in McMahon v. Iowa Dept. of Transp., 522 N.W.2d 51, 55-56 (Iowa 1994). Nonetheless, we conclude that this case is distinguishable because Urban Dictionary allows for anonymous, user contributed content. Moreover, without any review of the definitions posted on Urban Dictionary, there is a substantial danger that the definitions will not be generally accepted. Therefore, the DMV's practice risks prohibiting words or phrases based on meanings that are not commonly known or recognized, even as slang terms.

An interesting — and, I think, correct — conclusion, and one that's relevant to other user-generated references such as Wikipedia. As I've noted before, for tangential and uncontroversial matters, Wikipedia may be quite good enough. Government employees' time isn't unlimited, and tracking down authoritative sources to demonstrate the colorfulness of Polish boxer Andrew Golota — to give an example from a Seventh Circuit case that cited Wikipedia to support such an assertion — is probably not the best ways to spend that time. But for something controversial and important, it seems to me that Wikipedia and other reader-generated sources that aren't edited by known and trustworthy authorities should not suffice.

Note that I'm not concerned here about outright lies and manipulations. It seems likely that people who contribute to the Urban Dictionary contribute usages that they themselves have observed. And in fact it's possible that "hoe" (and not just "ho") is seen by some or even many people as slang for "whore," unless some other meaning — say, gardening-related — is visible from context. But all the entry in the Urban Dictionary means (unless the court and I misunderstood the way the Dictionary works) is that one person has claimed that a word has a particular slang meaning, and that the site operators didn't block or remove the submission; it doesn't mean that anyone checked to see whether the definition is in fact common, rare, or even purely idiosyncratic with the submitter and his small circle of friends.

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Judge Sotomayor's Record in Constitutional Cases:

Today the Brennan Center for Justice at NYU's School of Law released a report by Monica Youn, Judge Sotomayor's Record in Constitutional Cases. The study looked at over 1,000 constitutional cases heard by the U.S. Court of Appeals for the Second Circuit during the time Judge Sotomayor was on the court. Here is how the Brennan Center summarizes the findings in the report's Executive Summary:

Based on this exhaustive review, the conclusion is unmistakable: in constitutional cases, Judge Sotomayor is solidly in the mainstream of the Second Circuit. After we analyzed every constitutional case in the Second Circuit over the past decade, what was striking was the degree of unanimity and consensus on a court roughly evenly split between Democratic appointees and Republican appointees.

  • Even given the often-noted collegiality of the Second Circuit, Judge Sotomayor has been in agreement with her colleagues more often than most - 94% of her constitutional decisions have been unanimous.

  • She has voted with the majority in 98.2% of constitutional cases. When she has voted to hold a challenged governmental action unconstitutional, her decisions have been unanimous over 90% of the time.

  • Republican appointees have agreed with her decision to hold a challenged governmental action unconstitutional in nearly 90% of cases. When she has voted to overrule a lower court or agency, her decisions have been unanimous over 93% of the time.

  • Republican appointees have agreed with her decision to overrule a lower court decision in over 94% of cases. She overruled lower court and agency decisions at a rate that closely conforms to the circuit overall average.

Our analysis shows that - far from casting her as an "outlier" - Judge Sotomayor's record is remarkably consistent with that of her colleagues. The analysis also refutes charges made since the day of her nomination that Judge Sotomayor is a "judicial activist." Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist.

What the executive summary does not mention, but the accompanying graphs show (see here, page 13), is that Judge Sotomayor votes to overturn governmental action on constitutional grounds more often than the average judge on the Second Circuit, a point also noted in this NYT story. The report claims this difference was not statistically significant.

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Are Sotomayor's Opinions Too Detailed?

The Washington Post has an interesting report on Judge Sotomayor today based upon a fairly extensive review of her opinions. Two aspects of the story caught my eye. First, the article suggests that there is a problem with teh high level of factual detail in Judge Sotomayor's legal opinions.

During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city's population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.

Legal experts said Sotomayor's rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

"It seems an odd use of judicial time, given the very heavy caseload in the 2nd Circuit, to spend endless hours delving into the minutiae of the record," said Arthur Hellman, a University of Pittsburgh law professor and an authority on federal courts.

This struck me because Judge Sotomayor's attention to detail is typically cited as a virtue, rather than as a fault. As one attorney quoted in the story noted, one would expect Judge Sotomayor to win praise for the thoroughness of her opinions.

The Post story also sought to offer an independent assessment of Judge Sotomayor's ideology based upon a review of opinions in which she differed with some or all of her colleagues on the Second Circuit.

To examine the record of Sotomayor, whose Senate confirmation hearings begin Monday, The Post reviewed all 46 of her cases in which the 2nd Circuit issued a divided ruling, nearly 900 pages of opinions. Although Sotomayor has heard about 3,000 cases, judicial scholars say split decisions provide the most revealing window into ideology because in such cases the law and precedent are often unclear, making them similar to cases heard by the Supreme Court. President Obama, who nominated Sotomayor to replace retiring Justice David H. Souter, has said Supreme Court justices will be in agreement 95 percent of the time.

Sotomayor's votes in split cases were compared with those of other judges through a database that tracks federal appellate decisions nationwide, a random sampling of 5,400 cases. The database codes decisions as "liberal" or "conservative" based on what its creator, University of South Carolina political scientist Donald Songer, says are common definitions. Votes in favor of a defendant, for example, are classified as liberal, while those supporting prosecutors are called conservative.

Sotomayor's votes came out liberal 59 percent of the time, compared with 52 percent for other judges who, like her, were appointed by Democratic presidents. Democratic appointees overall were 13 percent more liberal than Republican appointees, according to the database analysis.

There's nothing particularly surprising in these results -- anyone who has reviewed a substantial portion of Judge Sotomayor's record know that she is likely to be on the liberal end of the spectrum on most issues that divide jurists along traditional ideological lines. Still, it is interesting (and heartening) that the Post sought to do its own analysis.

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Joseph Massad Awarded Tenure at Columbia:

Jacob Gershman has the scoop, including some details I didn't know about: Massad had already been denied tenure once, in 2007 and, according to Gershman, the excuse for giving him the extraordinary opportunity to go up again was that "Massad had switched his field of specialty from political science to cultural studies."

It's often alleged, as in the Finkelstein case at DePaul, that someone's anti-Israel views prevent him from getting tenure, or otherwise succeeding in academia. Putting aside the merit of those claims, Massad's case involves exactly the opposite scenario. He landed at Columbia to begin with as a disciple of leading Palestinian activist and Columbia professor Edward Said. And given not just the quality of his "scholarship," but his hostility to the international gay rights and feminist movements (which shouldn't matter for tenure purposes, but who are we kidding?), and his haranguing of a questioner at a university event based on his (Israeli) nationality, it's hard to imagine a university like Columbia tenuring him if he wasn't a leading Israel-basher, and therefore was able to pose as both a "progressive" and a martyr to academic freedom.

The good news is that if Columbia had denied Massad tenure, it would have been under severe pressure to hire someone just as anti-Israel to replace him, to prove that its decision wasn't politically motivated. And that replacement almost certainly wouldn't hold some of Massad's most cringeworthy positions and statements, such as: the "Gay International" conspiracy to create homosexuality in the Arab world; that "such practices [as the torture of Abner Louima by NYC police] clearly demonstrate that white American male sexuality exhibits certain sadistic attributes in the presence of non-white men and women over whom white Americans (and Brits) have government-sanctioned racialised power"; that the movie "Exodus tells the story of the Zionist hijacking of a ship from Cyprus to Palestine by a Zionist Haganah commander;" his dismissal of the significance of "honor killings" in the Arab world; and his insistence Israel is analogous to Nazi Germany, and the Palestinians to the Nazis' Jewish victims.

I think it's regrettable from the standpoint of academic integrity that Massad received tenure, but, in a perverse way, it's good news for supporters of Israel. We can look forward to many more years of Massad discrediting the "anti-Zionist" cause.

As an aside, here's an example of exactly what's wrong with much of campus pro-Israel activism. A Columbia student expresses her concern that Massad received tenure. She acknowledges (wrongly) that "Massad is a distinguished scholar," and "admittedly a talented, accomplished professor," and in any event she has no way to judge the "academic legitimacy" of his most inflammatory (and ridiculous) arguments. But she's upset because Massad disturbs Jewish students' "sensibilities." Ugh! To the extent that Massad has mistreated Jewish or Israeli students, that's a legitimate concern. But to the extent that he makes Jewish students feel bad because they don't like the implications of his legitimate arguments, that just victimhood politics that are just as bad, and as inadmissible in a debate about tenure, coming from Jews as from anyone else. The student in question, in other words, has written a post complaining about Massad's tenure that actually supports his case for tenure, because she relies on the fact that he hurts her feelings instead of educating herself as to why he's been accused of shoddy scholarship.

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The Federal Government is Prohibiting Me from Becoming a Billionaire:

Boston Globe:

Sweeping healthcare legislation working its way through Congress is more than an effort to provide insurance to millions of Americans without coverage. Tucked within is a provision that could provide billions of dollars for walking paths, streetlights, jungle gyms, and even farmers' markets....

[A]dvocates, including Senator Edward M. Kennedy of Massachusetts, defend the proposed spending as a necessary way to promote healthier lives and, in the long run, cut medical costs. "These are not public works grants; they are community transformation grants," said Anthony Coley, a spokesman for Kennedy, chairman of the Senate health committee whose healthcare bill includes the projects.

"If improving the lighting in a playground or clearing a walking path or a bike path or restoring a park are determined as needed by a community to create more opportunities for physical activity, we should not prohibit this from happening," Coley said in a statement.

So you see, if the Federal government doesn't provide funding for something, it is, in effect, prohibiting it from happening.

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Wednesday, July 8, 2009

Would Sotomayor be the First Justice Not to Have English as Her Native Language?:

Justice Ginsburg thinks she would be. Given that Sotomayor was born in the Bronx, I assume she means that Sotomayor would be the first Justice whose grew up in a primarily non-English speaking household.

I'm not sure about this biographical detail regarding Sotomayor, but I doubt she'd be the first. Justice Brandeis may be one earlier example. I'm not sure what language was primarily spoken in the Brandeis household, but I would guess German, based on the following information: Brandeis's parents were German-speaking immigrants; Brandeis attended a German-language elementary school, the "German and English Academy;" the school was co-founded by his father, suggesting that his father had great fondness for the German language and culture; and Brandeis spent two of his teenage years studying in Germany.

It's also possible that Arthur Goldberg's parents, immigrants from a shtetl in Ukraine, spoke Yiddish at home. I can't think of any other examples offhand, but that doesn't mean there aren't any.

UPDATE: After I posted this, I remembered that Justice Thomas's first language is Gullah, an Afro-English creole dialect. And a commenter points out that Felix Frankfurter's family didn't arrive in the U.S. from Vienna until Frankfurter was twelve years old.

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LawProfs for Sotomayor:

Today the Senate Judiciary Committee posted a letter supporting confirmation of Judge Sonia Sotomayor to the Supreme Court signed by over 1,100 law professors from around the country. Organized by the Alliance for Justice, and promoted by professors at various schools (including Columbia, which released the letter to the press), the letter makes the standard case for Sotomayor's confirmation:

Judge Sotomayor will bring to the Supreme Court an extraordinary personal story, academic qualifications, remarkable professional accomplishments and much needed ethnic and gender diversity. We are confident that Judge Sotomayor’s intelligence, her character forged by her extraordinary background and experience, and her profound respect for the law and the craft of judging make her an exceptionally well-qualified nominee to the Supreme Court and we urge her speedy confirmation.
The letter is pretty standard stuff for this sort of thing. One paragraph in particular caught my eye:
As a federal judge at both the trial and appellate levels, Judge Sotomayor has distinguished herself as a brilliant, careful, fair-minded jurist whose rulings exhibit unfailing adherence to the rule of law. Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society. She has not been reluctant to protect core constitutional values and has shown a commitment to providing equal justice for all who come before her. (emphasis added)
Having now read dozens upon dozens of Sotomayor's opinions and other decisions in which she joined, I think this is a defensible summary of Judge Sotomayor's record on the bench (though reasonable people could also reach a somewhat different conclusion). What I wonder, however, is what percentage of the 1,100-plus signatories to the letter are sufficiently familiar with her record to have reached an informed, expert judgment?

I am sure many academics have spent the last several weeks poring over Sotomayor's work, and that many such folks signed the letter. But I am also quite confident that some of those who signed the letter have not read more than a case or two, and based their judgment on news reports and other second-hand information. For some, I suspect, merely receiving a solicitation from a colleague (or from the AFJ) to support a liberal president's liberal nominee was sufficient.

The whole point of a law professor letter is to establish authoritative support for a particular position. It communicates the message that presumed experts have come to a reasoned, and presumably authoritative, conclusion that non-experts should heed. In this case, the position espoused is not merely that Judge Sotomayor should be confirmed — a view which most law professors almost certainly share — but also that her opinions demonstrate certain, specific characteristics that are desirable as a judge. The underlying claim may be true. Yet I doubt all 1,100-plus signatories took the time to assure themselves of this fact before lending their names, and the authority of their positions, to the letter.

Let me be clear that my concern is not with the substance of the letter. I do not oppose Judge Sotomayor's confirmation and believe that reasonable people could well conclude that her record support's the letter's claims. I assume that many signatories and those who solicited signatures are familiar with Judge Sotomayor's record. I also have little doubt that most all of those on the letter would support Judge Sotomayor's confirmation even after reading every jot of writing she's ever produced. My concern is that some legal academics appear willing to place their political preferences ahead of their academic integrity and would sign such a letter before confirming, for themselves, that everything the letter says is actually true. This is not the first time I've expressed this concern. Unfortunately, I doubt it will be the last.

UPDATE: Jason Mazzone suggests that some enterprising journalist should call random signatories to the letter and ask which Sotomayor opinions demonstrate the traits identified in the letter.

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Caritas in Veritate:

I am going to be on lite-blogging status for a while, due to a pinched nerve and muscle tear caused - everyone please take careful note - not by my Athletic and Extreme Sports lifestyle, but by bad ergonomic habits at the keyboard. Let me assure you, at this moment you really, really do not want to be me.

However, while spending my time reading rather than writing, I plan to read (having hastily skimmed and read some commentary about) the new encyclical from the Pope, Caritas in Veritate. It addresses economic and social development on a global basis, with passages about human rights and their relationship to social duties and the common good, the economic and financial order of the world, the environment, globalization, and much else. There are lots of sites around that have posted it, but this is a Vatican site, so I assume it must be an accepted English version. I'll say something about the actual substance once I've had a chance to read and digest it.

I am not Catholic, and so my interest in this encyclical is not that of a believer or adherent of the faith. However, I enormously value Catholic social and moral thought, without having any religious belief in it and while generally tending to a libertarian view of many of these social issues - without it, in other words, exercising a voice of authority apart from its inherent reasoning. I have always welcomed that these encyclicals are addressed not just to the faithful, but to "all people of good will." They seek to bridge a divide that is sometimes bridgeable and sometimes not, between arguments based solely upon public reason and arguments that rely for their acceptance upon specifically religious beliefs and views. I can see from a fast reading that there are many judgments made in both those categories with which I would profoundly disagree, but I can also see that my understanding of these questions is deepened by the Catholic Church's offering of argumentation from a specifically religious viewpoint projected into the public square of reason and debate.

I am, as ever, grateful to live in a society in which I am free to dispute all these religious view points, reject them, ridicule them, heap scorn upon them; one of the remarkable - and not in a good way - features of the UN and its emerging approach to human rights, including free expression, is the gradual embrace of norms that would make all that subject to sanction. We live in a moment in which the discourse of human rights, at least at the UN and its organs, is weirdly split between two worlds - an ever more finely attuned secular progressive view of rights, on the one hand, and rights as merely a language for global communalism. The two are both strong at this point in time, but the momentum, so far as I can see, lies not with human rights as secular liberalism, but instead with their reinterpretation as multiculturalism, the management by elites of communal global claims, the most important at this time in history being Muslim religious claims and their status and place in the global public square(s).

A few decades from now, I suspect that the transformation of human rights from the vanguard value of liberal internationalism into what we might call "multicultural internationalism," global religious communalism, will be more or less complete. The new version of human rights might be many things, but one thing it will not be is "liberal," no matter how thoroughly it has appropriated and mastered the language of liberal rights. But that is a topic for another day.

I was first introduced to Catholic social thought by my old friend and mentor, Harvard Law School's Mary Ann Glendon, starting with the 19th century encyclicals on the dignity of labor. She remarked to me once that an encyclical is only as powerful as the encyclical's willingness to be plain as to when it is arguing from public reason and when it is instead arguing from religious claims that it cannot expect will be universally shared. It was not that it should not forswear reasoning from religious premises - but that it had to forswear allowing such religious premises to be smuggled in covertly without admitting to it. About that, I think she is quite right. (Somewhat different version of this cross-posted to Opinio Juris.)

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U.S. Presidents Arguing Before the Supreme Court:

Which U.S. Presidents have -- at some point in their careers -- argued before the Supreme Court? I know of only one (thanks to Ira Matetsky), but there might have been others. Note that I'm not looking for cases in which Presidents sued or were sued, but ones that they personally argued as lawyers.

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"Game Show Looks to Convert Atheists":

Reuters report:

Turkish television station Kanal T hopes the answer is a ratings success as it prepares to launch a gameshow where spiritual guides from the four faiths will seek to convert a group of non-believers.

The prize for converts will be a pilgrimage to a holy site of their chosen religion -- Mecca for Muslims, the Vatican for Christians, Jerusalem for Jews and Tibet for Buddhists....

A team of theologians will ensure that the atheists are truly non-believers and are not just seeking fame or a free holiday.

Thanks to Religion Clause for the pointer.

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Very Funny Alleged TV News Segment,

or at least very funny props. Thanks to Moe Lane for the pointer.

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"Let's Treat Borrowers Like Adults":

My latest Wall Street Journal contribution, "Let's Treat Borrowers Like Adults: The problems with a financial products safety panel" is available here.

The basic point of the piece is that there were a lot of bad loans that were made over the past decade (duh). But the primary problem with these loans was the combination of bad Federal Reserve monetary policy and the bad incentives that they created for borrowers when house values fell. Although there certainly were borrowers who were defrauded by lenders (and lenders defrauded by borrowers) the underlying problem was caused by incentives and rational responses to those incentives.

But this means that many of the loans that were made presented profound issues of safety and soundness for the banking system. But not problems of consumer protection. When a borrower who put nothing down rationally and knowingly responds to incentives to walk away from an underwater house, especially in a state with an anti-deficiency law which makes this strategy largely costless, this presents a major problem of safety and soundness. But it is not a consumer protection issue. Treating it as a consumer protection issue when it isn't, I argue, could have severe unintended consequences for competition, consumer choice, and the safety and soundness of the banking industry, as well as creating a problematic new bureaucracy.


Tuesday, July 7, 2009

Why are We Backing Zelaya, the Former President of Honduras?

Dan Miller has a seemingly careful account of the situation in Honduras, claiming that there was no military coup:

As most already know, the Honduran Supreme Court was in the midst of a ongoing clash with President Manuel Zelaya on June 28 when an order was issued for President Zelaya’s arrest. The order was executed by the Honduran military, which, it appears, exceeded its authority and not only arrested him but took him to Costa Rica. It did so to prevent internal violence.

The crisis was due to a number of things, including Zelaya’s efforts to amend the Honduran constitution in ways both procedurally and substantively prohibited by that document. The congress then followed the Honduran laws of presidential succession and appointed the (civilian) president of the Congress, Roberto Micheletti, to be the interim president until elections could be held, as scheduled, in November.

While claimed by many to have been a coup by a military junta, it was not. The civilian government remains in power, and the military remains subordinate to it. (A more detailed account is provided in an article I wrote on June 30. A certification by Honduras of its bases for removing Mr. Zelaya from the presidency is provided here.)

Since the departure of Mr. Zelaya, Honduras has been a focus of much unwanted international attention. President Hugo Chávez of Venezuela has been adamant in demanding that Mr. Zelaya be reinstated as president; the United States Government, while less acerbic, has demanded the same. The Organization of American States (OAS) and the Bolivarian Alternative for Latin America and the Caribbean (ALBA), largely under the leadership of President Chávez, have demanded Zelaya’s return, and so has the UN.

Publicly, at least, Honduras stands alone with the sole exception of the government of Panamá, which, on July 6, asked the various governments to keep their noses out of Honduras’ internal affairs. President Ricardo Martinelli, who recently won the presidential election in Panamá by an unprecedented sixty plus percent with very high voter turnout, stated:

Panamá has to be a leader of freedom and justice, not only here in our home, but in our region and our continent. As president, I will do everything within my power to advance the ideals of a free economy, defying the ideological pendulum in Latin America.

News coverage in Panamá of the Honduran mess has been less biased than most coverage in the United States and elsewhere, and the return of Mr. Zelaya is favored by very few here. . . .

On July 6, he departed Nicaragua for Washington, D.C., where he is to meet with Secretary of State Hillary Clinton prior to his anticipated attempt to return to Honduras on July 8 or 9. Previous meetings subsequent to Mr. Zelaya’s removal from the presidency had been with lower ranking officials.

Also on July 6, an unofficial mission representing the interim Honduran government left for Washington, even though the United States government has not recognized it. According to the Latin American Herald Tribune, “a spokesman for the State Department said Monday that no U.S. officials would meet with representatives of ‘the de facto regime’ in Tegucigalpa.” . . .

What happens next? Mr. Zelaya has threatened to make a second attempt to return to Honduras. Through a spokesman, he stated that “it could be by air, sea or land. … We are not going to say where.” The main Honduran airport remains closed, and it seems unlikely that Mr. Zelaya will be able to land there. Assuming that he nevertheless tries to return, the options would appear to be by land or sea — unless, of course, he decides to bring a parachute. When his aircraft was prevented from landing on July 5, he said that if he had brought a parachute, he would have used it. . . .

It would not be surprising, however, if Mr. Zelaya attempted to return via Nicaragua accompanied by Nicaraguan troops.

In these circumstances, it seems unlikely that either side would back down. This would set the stage for a military confrontation at the border, during which it is conceivable that Mr. Zelaya and others would be killed.

That’s what may happen. What I think should happen is rather different. Panamá has it right, and foreign countries should keep their noses out of Honduras’ internal affairs. The early elections proposed by the interim Honduran government would very likely defuse the explosive situation there and, like the vote a few years ago when Mr. Zelaya was elected, would be fair and transparent.

If Miller is correct, then it appears that the initial reporting of a military coup was grossly mistaken. Manuel Zelaya was not removed from office by the military. After he he was legally removed from office by the Honduran Supreme Court, the military arrested him and removed Zelaya from their country rather than simply arrest him as they were ordered to do. According to Miller, the military is not running the country; the constitution remains in effect and the civilian constitutional successor is in charge.

Why hasn't the US recognized the constitutional successor to Zelaya?

As yet, I have seen no coherent argument from the US government regarding why we are backing the former president, Manuel Zelaya.

(click to enlarge)

"Secretary Clinton holds talks with Honduran President Jose Manuel Zelaya at the State Department."

UPDATE: Note the State Department's caption for the picture. It should be former Honduran President Zelaya.


Minnesota Bar Opinon on a solo lawyer doing business as "Doe & Associates."

In mid-June, the Minnesota Lawyers Professional Responsibility Board issued an opinion on a solo lawyer doing business as "Doe and Associates."

OPINION NO. 20

USE OF THE WORD “ASSOCIATES” IN A LAW FIRM NAME

The use of the word “Associates” or the phrase “& Associates” in a law firm name, letterhead or other professional designation is false and misleading if the use conveys the impression the law firm has more attorneys practicing law in the firm than is actually the case.

Comment

Subject to qualifications below, the use of the word “Associates” in a law firm name, letterhead or other professional designation—such as “Doe Associates”—is false and misleading if there are not at least two licensed attorneys practicing law with the firm. Similarly, the use of the phrase “& Associates” in a firm name, letterhead or other professional designation—such as “Doe & Associates”—is false and misleading if there are not at least three licensed attorneys practicing law with the firm.

Rule 7.5(a), Minnesota Rules of Professional Conduct (“MRPC”), states:

A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it . . . is not otherwise in violation of Rule 7.1.

Comment 1 to Rule 7.5, MRPC, states, in pertinent part, that “the use of trade names . . . is acceptable so long as it is not misleading.”

Rule 7.1, MRPC, states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment 2 to Rule 7.1, MRPC, provides:

Truthful statements that are misleading are also prohibited by this rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

While the word “Associates” and the phrase “& Associates” undoubtedly have other meanings and connotations in other contexts, in the practice of law the word and the phrase have been used and are perceived as referring to an attorney practicing law in a law firm. See In re Sussman, 405 P.2d 355, 356 (Or. 1965) (“Principally through custom the word [“associates”] when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of law the use of the word to describe lawyer relationships other than that of employer-employee is likely to be misleading.”); St. B. of N.M. Ethics Advisory Comm., Formal Op. 2006-1 (2006) (“It is well accepted in the legal community that an ‘associate’ is an attorney that works for a firm. ‘Associates,’ at least in the legal context, do not include support staff such as legal assistants or investigators.”); Ass’n of the B. of the City of N.Y. Comm. on Prof’l & Jud. Ethics, Formal Op. 1996-8 (1996), 1996 WL 416301 (“[T]he term [‘associate’] has been interpreted by courts and other ethics committees to mean a salaried lawyer-employee who is not a partner of a firm.”); Utah St. B. Ethics Advisory Op. Comm., Op. 04-03 (2004), 2004 WL 1304775 (“We believe that, if a member of the public examined a firm name such as ‘John Doe & Associates,’ he would conclude that John Doe works regularly with at least two other lawyers.”).

While some members of the public may care little about the number of attorneys practicing law at a law firm, clearly some members of the public seeking legal counsel do care whether there is more than one attorney at a firm available to provide legal services. “A client may wish to be represented by a law firm comprised of several or many lawyers, and the implications of the law firm name may affect the client’s decision. Any communication that suggests multiple lawyers creates the appearance that the totality of the lawyers of the law firm could and would be available to render legal counsel to any prospective client . . . .” Cal. St. B. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 1986-90 (1986), 1986 WL 69070 (opining that solo practitioners may not ethically advertise using a group trade name such as “XYZ Associates” unless the advertisement affirmatively discloses they are solo practitioners). A law firm name which suggests there are multiple attorneys to service a client’s needs when there is only one attorney is inherently misleading.

The Board’s opinion is consistent with decisions and ethics opinions from other jurisdictions which have held that the use of “associates” in the name of a law firm with one practicing lawyer is false and misleading. See, e.g., In re Mitchell, 614 S.E.2d 634 (S.C. 2005) (holding a solo practitioner made false and misleading communications by using the word “associates” in his firm name); In re Brandt, 670 N.W.2d 552, 554-55 (Wis. 2003) (solo practitioner holding himself out as “Brandt & Associates” was in violation of ethics rule prohibiting false and misleading communications); Portage County B. Ass’n v. Mitchell, 800 N.E.2d 1106 (Ohio 2003) (solo practitioner engaged in misleading conduct by holding himself out as “Mitchell and Associates”); Office of Disciplinary Counsel v. Furth, 754 N.E.2d 219, 224, 231 (Ohio 2001) (a solo practitioner’s use of letterhead referring to his firm as “Tom Furth and Associates, Attorneys & Counselors at Law” was misleading); S.C. B. Ethics Advisory Comm., Op. 05-19 (2005), 2005 WL 3873354 (opining that a solo practitioner’s use of a firm name such as “John Doe and Associates, P.A.” is misleading); Utah St. B. Ethics Advisory Op. Comm., Op. 138 (1994), 1994 WL 579848 (“[A] sole practitioner may not use a firm name of the type ‘Doe & Associates’ if he has no associated attorneys, even if the firm formerly had such associates or employs one or more associated nonlawyers such as paralegals or investigators.”). . . .

The proper use of “Associates” or “& Associates” in a firm name, letterhead or other professional designation previously has not been the subject of guidance from the Board. Therefore, the Office of Lawyers Professional Responsibility will defer invoking this opinion in disciplinary proceedings under Rules 7.1 and 7.5, MRPC, until January 1, 2010. For the same reason, to the extent a lawyer has already contracted for an advertisement or other promotional material using a name contrary to Opinion No. 20, the continued availability of the advertisement or other material for the duration of the contract term should not be the basis for discipline.

For a discussion of Judge Sotomayor's use of "Associates," see Eric Turkewitz, Andy McCarthy, the New York Times, and the Washington Times.


Vasily Aksyonov, RIP:

Prominent Russian writer and political dissident Vasily Aksyonov has passed away. Aksyonov was one of the leaders of the 1960s generation of Russian intellectuals who began to question the communist regime in various ways. His parents both spent time in Gulags during the Stalin era, and Aksyonov himself was shipped off to a government orphanage as the son of "enemies of the people" - an experience that probably influenced his later opposition to communism. Aksyonov wrote numerous well-known novels that criticized aspects of Soviet society. As he began to dissent from the party line more openly, his works were no longer published in the USSR and eventually he was expelled from the country in 1980. Aksyonov then lived in the US for over twenty years, teaching Russian literature at George Mason University (unfortunately, he left soon after I arrived, so I wasn't able to meet him).

Unlike such Russian nationalist dissidents as Alexander Solzhenitsyn, Aksyonov advocated liberal democracy, opposed anti-Semitism, and deplored the recent revival of authoritarian Russian nationalism under Vladimir Putin.

English translations of many of his novels are available, including the epic Generations of Winter, which tells the story of a Russian family in the brutal Stalin era. In Search of a Melancholy Baby (the title is awkwardly translated and really should be something like "In Search of a Sad Bady"), is a fascinating account of Aksyonov's impressions of life in the United States. An interesting lesser-known work is his 1980 alternate history novel, Island of Crimea, which imagines what might have happened if the Crimean peninsula had been an island, allowing the "White" losers of the Russian Civil War to set up a noncommunist state there in 1920 - a kind of Russian counterpart to Taiwan (White forces did in fact hold out in Crimea for many months after being driven out of the mainland, but communist troops eventually pushed them out).

Aksyonov will be remembered for his literary achievements and also for helping to inspire an entire generation of dissident intellectuals. Russia certainly could use more people like him today.

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More on the Decline in Judicial Protection for Property Rights:

In his most recent post on our debate, Eugene agrees with my view that judicial protection for property rights has declined substantially since the New Deal period, but claims that judicial protection for property rights was "not very broad" even before then.

It is true that pre-New Deal courts did not protect property rights as much as many libertarians would want. However, they did provide quite extensive protections for property rights that went far beyond what we have today. Certainly, cases such as Berman v. Parker, Kelo, Poletown, and various modern regulatory takings decisions would probably have come out the other way before the New Deal. Under pre-New Deal jurisprudence, hundreds of thousands of people would not have been expelled from their homes by "economic development," blight, and "urban renewal" takings. This alone shows that the difference between pre-New Deal and modern property rights jurisprudence was both stark and laden with important real-world consequences.

It is certainly true that pre-New Deal courts did not provide absolute protection for property rights. No constitutional right ever gets complete protection from judges, and none is totally immune to being overriden by competing considerations. On the other hand, many of the cases Eugene cites as upholding limits on property rights actually involved restrictions on economic liberties with little or no connection to property ownership. That is true of the examples he gives involving freedom of contract, maximum hours laws, restrictions on the sale of alcohol, bans on lotteries, and others. Pre-New Deal courts generally gave stronger protection for property rights (which were specifically enumerated in federal and state constitutions) than other economic liberties (most of which were implied from the Due Process Clause of the Fourteenth Amendment). The Supreme Court's endorsement of zoning in Village of Euclid v. Ambler Realty (1926) really did lead to substantial infringements on property rights. But this case came near the very end of the pre-New Deal era, and the Court's opinion did not extend the kind of categorical blank check for zoning that later decisions provided. Rather, the Euclid majority opinion emphasized that its decision was limited to the specific type of zoning considered in that case, and that other forms of zoning might still be constitutionally suspect.

Ultimately, the disagreement between us may not be that great. We seem to agree that there was a significant decline in judicial protection for property rights after the 1930s. We also agree that pre-New Deal courts upheld various restrictions on property. Perhaps we differ only on what counts as "broad protection." In my view, there is a huge difference between courts that allow thousands of people to be forcibly expelled from their homes so that the land can be transferred to private parties, and ones that would forbid such takings because they are not for a "public use" as required by the Fifth Amendment. There is also a huge difference between a jurisprudence that denies compensation for nearly all regulatory takings and one that provides it for a fairly wide range of them. Banning such practices (along with a number of other restrictions on property rights) falls far short of a property rights utopia. But it certainly counts as "very broad protection" in my book - especially compared to the modern alternative. In my view, protection that is far better than nothing can reasonably be considered "very broad." Perhaps Eugene meant to say that the term "very broad" applies only to near-absolute protection for a right. If so, however, he is attacking a straw man, since no serious commentator argues that the courts have ever provided such near-absolute protection for property (or any other right). In the blog post that touched off this debate, David Henderson claimed only that Eugene's analysis of flag burning shows "how far the courts have moved away from defending property rights." Henderson did not say that the courts ever protected property rights absolutely, or even came close to doing so.

In any event, my main purpose was to show that pre-New Deal Courts provided far greater protection for property rights than exists today, and that the difference between the two has major real world effects. Whether the term "very broad protection" applies is less important.

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Ward Churchill Denied Reinstatement:

The Daily Camera (Boulder) reports:

The ruling from Chief Denver District Judge Larry Naves, which was released this afternoon, appears to comes in stunning contrast to a jury's verdict from a civil trial Churchill brought against the school earlier this year.

At the conclusion of the 3 1/2-week-long trial, six jurors determined that CU had unlawfully stripped Churchill of his job for expressing his political beliefs in a controversial essay he wrote about the Sept. 11, 2001 attacks on the United States.

In his ruling, however, Naves stated that it was because of the jury's verdict -- specifically its decision to award Churchill a nominal $1 in damages -- that he denied Churchill's request to regain his job.

"If I am required to enter an order that is 'consistent with the jury's findings,' I cannot order a remedy that 'disregard the jury's implicit finding' that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy," Naves wrote.

The judge said putting Churchill back on campus is not appropriate because the relationship between the plaintiff and the school is "irreparably damaged" and his presence there will make it harder for CU to impose its standards of scholarly excellence in the future....

Naves also wrote that he decided against awarding Churchill any "front pay" because the former professor had not "seriously pursued" any efforts to gain comparable employment since his dismissal and had even declined to pursue a couple of job offers.

I'm not sure whether this is a legally sound result, especially as to reinstatement -- I'd love to hear from experts on the law of remedies, especially in public employment cases -- but I thought I'd pass it along.

Thanks to Pirate Ballerina for the pointer.

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"The American Judiciary Has Never Taken a Very Broad View of Property Rights":

Ilya argues that this statement of mine "goes too far," and says that "prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today." There's much in Ilya's post with which I agree; certainly, to quote his post title, "judicial protection for property rights really did decline" starting with the New Deal, and hasn't substantially rebounded.

But it still seems to me that the protection offered property rights during that era was not "very broad," though it was broader than it is now. To give some examples: The Lochner-era Court upheld zoning laws. It upheld billboard bans. It upheld alcohol bans (even before the Eighteenth Amendment) and bans on lotteries. It upheld bans on pool halls. Though it struck down maximum hours laws in Lochner, it upheld them for women, surely a restriction on liberty of contract (even setting aside the equal-treatment-for-women arguments that obviously wouldn't have been appealing then). Though it struck down price controls and other highly burdensome economic regulations in various contexts, it also upheld rent controls, usury laws, time-and-half overtime laws, and other regulations. Among other things, the notion of a police power to regulate conduct and the use of property in order to protect the public's health, morals, safety, and welfare was often read quite broadly, which kept the protection of property rights from being very broad.

As Ilya points out, some state courts at times provided more protections to property, contract, and general liberty of conduct. For instance, some state courts did strike down alcohol bans. But the dominant trend in state courts, to my knowledge, was in favor of upholding alcohol bans. And I don't think that the bulk of state courts provided "very broad" protection to property rights during that era, even if some sometimes provided somewhat more than the Supreme Court did.

Finally, I agree with Ilya that "nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights." But this doesn't mean courts took a very broad view of property rights, since they generally didn't take a very broad view of other rights — they certainly didn't take such a broad view of free speech rights, for instance (as Ilya agrees). My point was, and is, simply that property rights protections were not "very broad" at the time — not broad enough to secure a right to burn a flag that one owns (the example that triggered the post), and generally speaking not very broad in many other ways as well.

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Justice Feddie?

Georgia's Judicial Nominating Commission has released a list of nine individuals it recommends Governor Sonny Perdue consider in naming a replacement for Justice Leah Ward Sears on the Georgia Supreme Court. As reported in the AJC, those on the list are all prominent attorneys and judges from within the state. One nominee in particular should be familiar to the legal blogosphere: Stephen Dillard. An attorney at a mid-sized firm in Macon, Dillard was also the founder of the conservative law and policy blog, Southern Appeal, where he blogged under the name "Feddie."

I like Dillard — I guest-blogged for him on judicial nomination stuff several years back — as does Mike at Crime & Federalism. PFAW's "Right Wing Watch," on the other hand, dreads the prospect of Justice Dillard. I would be surprised if Dillard gets the nod. He's the youngest on the list and some of the others have more traditional credentials for this sort of thing. I wish him luck.

UPDATE: The questionnaire Dillard submitted to the Judicial Nominating Commission is available here.

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California Supports Incorporation of the Second Amendment:

See the California amicus brief -- signed by Attorney General Jerry Brown, who was a former Governor and is talked about as a possible future candidate for the Governorship as well -- supporting certiorari in NRA v. City of Chicago. The brief expresses support for a good deal of gun regulation, but says:

The petitions in these cases should be granted to provide needed guidance on the scope of the States’ ability to reasonably regulate firearms while extending to the states Heller’s core Second-Amendment holding that government cannot deny citizens the right to possess handguns in their homes.

And in explaining the state's interest as amicus, at the very start of the brief, it says:

California has a strong interest in protecting the constitutional rights of its citizens. But unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

Thirty-three other states also filed an amicus brief supporting incorporation, though they weren't the surprise that California's brief was -- 31 of them filed an amicus brief in Heller that also endorsed incorporation (footnote 6). The two new additions are Maine and North Carolina. One of the states that joined both of the multistate briefs, Minnesota, is one of the six states that doesn't have a right to bear arms provision in the state constitution; California is another.

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Will U.S. News Do For Law Firms What It's Done For Law Schools?

Ever in search of new rankings to drive magazine sales, U.S. News has announced it will join with Best Lawyers to produce a national ranking of law firms. Blog Emperor Paul Caron has more.

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Kalamazoo

Cornell medieval historian Paul Hyams and I are organizing a panel called Law as Culture: Lordship, Profit, and Rationality at the 45th International Congress on Medieval Studies at Western Michigan University in Kalamazoo, which will take place May 13-16, 2010. The deadline for submissions is September 15, 2009. Instructions for submission are here. Here's the call for papers:

Law as Culture: Lordship, Profit, and Rationality

Both economic and legal argument draws deeply on notions of reason and logic. These are found among ordinary men and women far from the schools. As economic historians document, medieval people (prudent peasants, as McCloskey puts it) were perfectly capable of responding to economic incentives. Moreover, law played a crucial role in shaping those incentives. We welcome proposals for papers that explicitly link legal history with economic history in explaining the dynamics of medieval life and culture.

Here are some examples of possible topics:

  • The canon law generated regulations concerning Usury, the Just price etc. during the "long" Twelfth Century. Meanwhile, secular laws sought to regulate markets (through laws on forestalling, regrating, engrossing, Assize of Bread and Ale etc.) and boosted those on coining offenses. This sustained attempt to restrain economic activity through law must be largely explicable from the context of economic change against which it was made. How might the Legal Revolution (the whole or any part) and the rising "Profit Economy" (Lester Little) be causally linked?
  • Why did England’s Angevin reforms of land law precede by at least a generation the provision of common law remedies for defaults by economic agents (action of Account) and the alienation of capital assets by tenants for life (action of Waste)?
  • How far can economics (e.g., far fewer seigniorial demesnes) explain why the Capetians and other European rulers did not transform their land law in a similar way to the English?
  • Did the development of accounting practices (e.g., input-output, like the English Pipe Rolls, double-entry, profit-and-loss, etc.) advance the cause of rationality in commerce and law in any material way? The lexicography of ‘reason’ and associated words would be interesting in this context. So might possible changes in the themes of literature such as fabliaux, such as the balance between sexual and financial trickery in the victories of women and other supposedly disempowered characters over their superiors.
  • What measure of economic analysis was possible before words like capital, interest, profit entered European languages in the generations surrounding 1200?
  • Were advances in numeracy as relevant to legal history as they patently are to the development of economic rationality?

Most generally, we welcome contributions along the following lines:

  • What economic phenomena can be better understood as driven, or at least influenced, by legal change?
  • What medieval social phenomena previously thought to be beyond the domain of economics can be explained as rational behavior by goal-oriented agents maximizing their utility subject to constraints?
  • Can the tools of modern economics such as game theory, contract theory, or behavioral economics enhance our understanding of medieval history?
  • To what extent can we explain legal change itself as the response of particular people in power to economic incentives?

Alexander Volokh, Emory Law School, 1301 Clifton Rd., Atlanta, GA 30322, volokh at post dot harvard dot edu.
Paul Hyams, History Dept., Cornell University, Ithaca, NY 14853-4601, prh3 at cornell dot edu.

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(Not) My Salt and Pepper Shakers:

These are pretty cool. I like the penguins and the whales. Alas, I am no relation to the designer, and I don't get a cut.

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Is the Copyright Royalty Board Unconstitutional?

This morning the U.S. Court of Appeals for the D.C. Circuit released its opinion in SoundExchange, Inc. v. Librarian of Congress. A three-judge panel consisting of Judges Ginsburg, Henderson, and Kavanaugh, largely rejected SoundExchange's challenge to the royalty rate set by the Copyright Royalty Board that satellite radio services must pay to copyright owners for the use of sound recordings. The panel concluded that the rate was not arbitrary, capricious, or unsupported by substantial evidence, but found (as the government conceded) that the Board failed to set a rate for "ephemeral copies."

While he joined the court's opinion in full, Judge Kavanaugh wrote a brief concurrence noting a potential separation-of-powers question raised by the manner in which Board members are appointed.

As this case demonstrates, billions of dollars and the fates of entire industries can ride on the Copyright Royalty Board’s decisions. The Board thus exercises expansive executive authority analogous to that of, for example, FERC, the FCC, the NLRB, and the SEC. But unlike the members of those similarly powerful agencies, since 2004 Copyright Royalty Board members have not been nominated by the President and confirmed by the Senate. Instead, as a result of a 2004 statute, Board members are appointed by the Librarian of Congress alone. Board members are removable by the Librarian, but only for cause. Moreover, in exercising important duties, Board members are apparently unsupervised by the Librarian of Congress or by any other Executive Branch official.

The new statutory structure raises a serious constitutional issue. Under the Appointments Clause, principal officers of the United States must be nominated by the President and confirmed by the Senate. U.S. CONST. art. II, § 2, cl. 2. Copyright Royalty Board members plainly are officers of the United States. And they appear to be principal officers – not inferior officers – because they are not removable at will and their decisions regarding royalty rates apparently are not reversible by the Librarian of Congress or any other Executive Branch official. See Edmond v. United States, 520 U.S. 651, 662-66 (1997); see also 17 U.S.C. §§ 701, 801-03; Tr. of Oral Arg. at 24 (Government counsel agreeing that Librarian of Congress and Register of Copyrights cannot change copyright royalty rates set by the Board).

If the members of the Board are in fact principal officers, then the present means of appointing Board members is unconstitutional. But no party here has timely raised a constitutional objection. We therefore may resolve the case without deciding whether the Board is constitutionally structured, and so I join the opinion of the Court.

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Judicial Protection for Property Rights Really Did Decline:

Eugene correctly points out that American courts have never protected property rights as much as many libertarian scholars would want. However, he goes too far in suggesting that "The American judiciary has never taken a very broad view of property rights." To the contrary, prior to the triumph of statist judicial and economic ideology during the New Deal period, American courts at both the state and federal level provided far stronger protection for property rights than they do today.

Today's Supreme Court allows the government to condemn property for virtually any reason, and almost never declares a regulation to be a taking requiring compensation unless the regulation involves physical "occupation" of property or permanently wipes out 100% of the property's economic value; wiping out a mere 98% is not enough (see this article for a discussion of the relevant modern precedents). In the 19th and early 20th century, by contrast, the Supreme Court made clear in the 1896 Gettysburg case that a taking transferring property from one private individual to another would be considered suspect under the Public Use Clause of the Fifth Amendment (I discuss Gettysburg in more detail in this article, pp. 242-43). The early 20th century Court also gave property owners broader protection against regulatory takings than exists today, in cases such as Pennsylvania Coal v. Mahon (1922), a decision written by Justice Oliver Wendell Holmes, one of the justices of that era least willing to use judicial review to protect property owners (or anyone else). It is also worth noting that, in 1917, the Supreme Court relied partly on property rights analysis in striking down racially restrictive zoning in Buchanan v. Warley, a case that helped save the United States from becoming vastly more segregated than we already were.

To be sure, judicial protection for property rights in the 1800s and early 1900s was somewhat weakened by the fact that the Supreme Court did not consider the Bill of Rights to have been incorporated against the states. Thus, takings by state and local governments could be challenged only under the Due Process Clause of the Fourteenth Amendment, under which the Court was more deferential to the state than when it applied the Fifth Amendment's Takings Clause. This led to some relatively permissive Due Process Clause precedents that were later misleadingly cited by the majority in Kelo v. City of New London as "a century" of precedent supposedly justifying their decision (despite the fact that these decisions had nothing to do with the Takings Clause, a point I discussed here, pp. 240-42). Halter v. Nebraska, the 1907 case upholding a state law banning the use of the American flag in advertisements cited by Eugene, was also a Fourteenth Amendment case (neither the Takings Clause nor the First Amendment is even mentioned in the Court's opinion).

However, this relative neglect of state government infringements on property rights by federal courts was balanced by the active role of many state courts in protecting property rights under state constitutions. As my colleague Eric Claeys described in a series of articles, nineteenth century state courts often enforced a narrow definition of public use that prevented condemnation similar to that upheld in Kelo v. City of New London, and also regularly required government to compensate property owners for regulatory takings that would likely be ruled noncompensable today. Eugene himself points out that some state courts protected property rights in flags against the type of restriction upheld by the Supreme Court in Halter; that despite the fact that a ban on the use of American flag images in advertising is actually a relatively minor infringement of property rights (though perhaps a greater infringement on free expression).

Most importantly, nineteenth and early twentieth century courts generally protected property rights as much or more strongly than other constitutional rights. The defense of property rights was widely regarded as one of the central objectives of constitutional law and judicial review, a point documented at length in James Ely's book, The Guardian of Every Other Right, probably the leading history of constitutional property rights. To the extent that judicial protection for property rights fell short, it was in part because of the general weakness of judicial review as an institution as compared to today. All of this is in sharp contrast to the "poor relation" status to which property rights are relegated by today's federal courts.

In recent years, some state courts have begun to protect property rights more than before; for example, eleven state supreme courts have ruled that Kelo-style "economic development" takings are forbidden under their state constitutions. But both federal and most state courts protect property rights far less than in the pre-New Deal era.

It is indeed true, as Eugene says, that there was "no Golden Age of constitutional property rights." Courts rarely, if ever, protect any right fully; and pre-New Deal property rights jurisprudence was no exception. Nonetheless, this is one field where protection for constitutional rights drastically declined during the period from the 1930s to roughly the 1970s and has seen only a modest recovery since then. We should not idealize nineteenth and early twentieth century courts, whose jurisprudence had numerous well-documented flaws such as the relative neglect of freedom of speech described by Eugene. In the field of property rights, however, things really did change for the worse during the twentieth century.

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"How Far the Courts Have Moved Away from Defending Property Rights"?

David Henderson (EconLog) writes:

Law professor Eugene Volokh has a recent piece in the Wall Street Journal defending the right to burn the American flag as an exercise of free speech. It's good reasoning, and there's nothing in it that I disagree with. But he omits a much better argument based on property rights. If you burn my flag without my consent, I don't care how much you're exercising your right to free expression. Free expression does not guarantee you the right to other people's property any more than it guarantees you a working larynx. But if you burn your flag, you're simply exercising your right to use your property as you wish. It's a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case.

I agree with Prof. Henderson that people should be free to use their property so long as they don't harm others in certain fairly well-defined ways; and I agree that burning a flag does not cause any such harm. I'm not certain that the Constitution authorizes courts to enforce this rule through provisions outside the First Amendment — but that's a story for another day and for another author. But I do want to speak briefly about the "how far the courts have moved away from defending property" line, because I think it exemplifies a common claim about how once upon a time we had broad — and judicially enforced — property rights and today we don't.

The fact is that throughout American history, courts have upheld a vast range of restrictions on private property, including many restrictions that libertarians would find reprehensible. And that is true even during the heyday of constitutional economic rights protection during the Lochner era.

In fact, even when courts were "defending property" around the time of Lochner, the Supreme Court expressly rejected the property rights argument as to use of the flag. The case was Halter v. Nebraska (1907), decided two years after Lochner. Halter upheld a law that outlawed the selling of "any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States." This was, of course, a ban on advertising and sales rather than on the use of the flag as a political symbol, which might be relevant to a free speech claim. But no free speech claim reached the Supreme Court; rather, the Court dealt with a claim about the rights to property and general liberty of conduct — a claim that would equally apply to commercial use of the flag as to political burning of the flag.

And the Court rejected the argument, by an 8-1 vote (the only dissenter was Justice Peckham, who wrote the Lochner majority opinion). Here's an excerpt (some paragraph breaks added):

[W]e cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.

Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation — which, in itself, cannot belong, as property, to an individual — has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Looking, then, at the provision relating to the placing of representations of the flag upon articles of merchandise for purposes of advertising, we are of opinion that those who enacted the statute knew, what is known of all, that to every true American the flag is the symbol of the nation's power, — the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.

The Court did point to two state supreme court cases that had indeed held similar statutes at least partly unconstitutional. But even those cases were limited in their reasoning. People ex rel. McPike v. Van De Carr, 178 N.Y. 425, held only that the ban was unconstitutional as to existing material depicting the flag, and would be constitutional in banning production of new such material. (In the flagburning context, this would mean that people would have the right to burn flags made before the statute limited the property rights in flags, but the government could prospectively announce that any flags made in the future could not be burned.) And even Ruhstrat v. People, 185 Ill. 133, which had the more broadly liberty-protecting reasoning of the two cases, suggested that the result might be different if the federal government — to which the care of national symbols, in the Illinois Supreme Court's view, was exclusively entrusted — asserted its interests in preventing misuse of the flag.

My point here is simply that there was no Golden Age of constitutional property rights in which the Supreme Court adopted anything close to libertarianism as a constitutional rule. Past legal regimes may have been more property-protective (though less protective of other aspects of liberty, such as free speech, sexual autonomy, and the like). They included, for instance, moderately strong enforcement of the Contracts Clause, and some protection for liberty of contract and the liberty to enter one's chosen profession. But there was always a very great deal of room for the government to restrict people's behavior, including in ways that modern libertarians would roundly condemn. That's true as to the example in the EconLog post — use of the flag — but it's also true of a wide range of other unlibertarian restrictions, which were upheld under "police power" principles during the Lochner era.

So it's not "a sign of how far the courts have moved away from defending property rights that Eugene Volokh, a pro-freedom, pre-property rights lawyer, does not make the property rights case." It's a sign that the American judiciary has never taken a very broad view of property rights, and in particular has never taken a view broad enough to protect alleged misuse of the flag. Say what you will about what you think courts should do in the future; but acknowledge that they were never terribly protective of property and of general liberty of conduct even when such protections were at their maximum.

Thanks to Wesley Gorman for the pointer.

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Monday, July 6, 2009

Monday Sloth Bear Blogging:

In the tradition of Monday bear blogging established by Jonathan Adler, here is a picture of an appropriately slothful sloth bear that my fiancee took at the National Zoo:

Related Posts (on one page):

  1. Monday Sloth Bear Blogging:
  2. Monday Bear Blogging:
  3. Monday Bear Blogging:
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"Incorporation," Originalism, and the Confrontation Clause:

I have no strong feelings, or really any feelings whatsoever, about the right of a criminal defendant to confront the witnesses against him, protected by the Sixth Amendment. So I can examine recent Confrontation Clause jurisprudence with an unjaundiced eye, and conclude that it makes no sense.

The Supreme Court, led by Justice Scalia, created a revolution in Confrontation Clause jurisprudence in the 2004 Crawford case. Before Crawford, the Court for many years had held that testimony admitted under any "firmly rooted" hearsay exception satisfies the Clause.

Scholarly work, especially by Prof. Richard Friedman of the University of Michigan Law School, showed that as a matter of original meaning, this was an incorrect interpretation of the Confrontation Clause, that the right to confront witnesses went beyond protecting a defendant from unreliable hearsay. The historical research persuaded Scalia, and Scalia persuaded his colleagues. This past term, the Court held, for the first time, that forensic reports are subject to the Confrontation Clause, threatening a certain level of havoc in state criminal justice systems.

Here's the rub: Crawford is, as far as I can tell, correct as a matter of original understanding of the Sixth Amendment, and therefore is properly applied to federal prosecutions. The problem is that Crawford, and most of the major subsequent Confrontation Clause cases, are state cases, arising under the Fourteenth Amendment.

The Fourteenth Amendment's Due Process Clause is said to "incorporate" the Sixth Amendment's Confrontation Clause. But, as a logical matter, the right incorporated by the 14th Amendment in 1868 is the understanding of the Confrontation right as of 1868, not the understanding as of 1791. And my understanding is that the experts (I am not one) agree that by 1868 the original 1791 understanding of the Confrontation Clause had been lost, and that the Confrontation right was thought to be coextensive with protections against hearsay--precisely the position Scalia rejected on originalist grounds in Crawford!

Thus, Crawford exposes what I see as a major flaw in Scalia's originalist methodology. When a right protected by the Bill of Rights is applied to the states via the 14th Amendment, it has to be the 1868 understanding of that right, not the 1791 understanding, that governs. (This likely has implications for other rights as well, including freedom of expression, the right to bear arms, and the right to not have private property taken for public use without just compensation.) Not only has Scalia not applied this insight, I don't think (correct me if I'm wrong, please) there's any evidence that it's ever occurred to him.

I'm not a hard-core originalist, but to the extent original meaning is supposed to govern Supreme Court decisions, Crawford, and its state-level progeny, are wrongly decided.

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Seen in the Referrer Logs:

06 Jul, Mon, 18:13:02 Google: Can i get arrested for sending nude pictures and im 15

Yes, you can; perhaps you might get off the hook on some legal theory (for instance, if the nudity isn't seen as "lewd"), but this is one thing that you don't want to be even potentially on the hook for. And even if you don't get arrested, you might come to regret -- very soon, or perhaps a few years later -- having such pictures available to anyone. My advice: Keep your nudity unrecorded.

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The Most Important Civil Rights Leader You've Never Heard Of:

That's an apt description of Dr. T.R.M. Howard, a civil rights pioneer in Mississippi and later Chicago. My friend (and University of Alabama history professor) David Beito and his wife Linda have written what promises to be a very interesting biography of Dr. Howard. Howard was a fascinating character who, among other achievements, played a very important role in trying to bring the murderers of Emitt Till to justice. I'll have more to say once I've had a chance to finish the book, but for now you can find interviews with David about the book here and here.

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Should Aspiring Law Professors Roll the Dice with this Year's "Meat Market"?

Most insiders I have talked to believe that this year's job market for entry-level law professors will be awful, due to the impact of the recession. Getting a lawprof position is not easy even in a good year; for example, in 2006-2007, the last year for which I could find data, only 13.7% of applicants in the American Association of Law Schools roster were successful. This year, the odds are likely to be much worse.

A number of aspiring law professors have asked me whether they should apply to this year's "meat market" anyway. On the upside, it seems like it can't hurt to try. An unsuccessful applicant can reapply next year. On the other hand, you might end up taking a much worse position than you could have gotten in a more normal year. Moreover, I have heard that some appointments committees don't like to reevaluate applicants who were rejected in a previous year unless they have some new outstanding achievement on their CV (such as a major new publication).

I'm not sure which side of this argument is correct, if either. Obviously, much depends on the circumstances of the particular applicant. For example, an applicant who can instead ride out the next year or two in a good fellowship or visiting appointment can more easily defer than one who can't. But there may be some generally relevant considerations nonetheless. So I solicit comments from those better informed than I am, particularly senior lawprofs who serve on appointments committees. What do you think? Should entry-level candidates take the plunge this year or not?

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"Make Obama's Third Term Possible":

One of the headings on End22.com, a site devoting to "repeal[ing] the 22nd Amendment" (the one that limits Presidents to two terms). Their logo, judging by the site, seems to be a photo of President Obama followed by a photo of FDR.

I have no informed opinion on the subject of term limits for Presidents, and can see good arguments in either direction. Perhaps the voters should be entitled to choose Obama for a third time in 2016 (if of course they choose him a second time in 2012). Or perhaps the political power of an incumbent President can be made so great, especially if the incumbent knows that he may legally be reelected indefinitely, that the people will in reality have more choice if term limits are imposed.

But I am pretty sure that it's a bit early to get the public excited about "making Obama's third term possible," though maybe that's the slogan that's needed to get donations from the base. And more broadly, it seems to me that this is the sort of amendment that -- like the Twenty-Second Amendment itself -- should be drafted not to apply to the person who is in office when the amendment is proposed. Both as a matter of policy and politics, any such change should be focused on the principle, and not on allowing the reelection of any particular person.

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Federalist Society's Searle Young Legal Scholars Research Fellowships:

If you're a young law professor with Federalist Society sympathies, you should definitely apply; the fellowship will fund a semester-long research leave, though you won't be expected to move anywhere physically during the leave. "Applicants should be tenure-track faculty members at a law school in the second to fifth years of their tenure-track teaching careers."

Also, don't feel dispirited if you aren't at a top school. "Preference will be given to applications from candidates who are not currently at top law schools as top schools are likely to have their own research leave programs for junior faculty." More details at the link.

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Democracy and Political Knowledge in Ancient Athens - Why Ancient Athenian Voters Were Not as Ignorant as We Have Been Taught to Think:

Josiah Ober's excellent recent book Democracy and Knowledge: Innovation and Learning in Classical Athens challenges one of the oldest bits of conventional wisdom in political theory: the idea that the direct democracy of ancient Athens was dominated by ignorant voters whose misguided decisions often led the city to disaster. Modern representative democracy, the conventional wisdom claims, is a great improvement in limiting the impact of ignorance. This critique of Athenian democracy certainly isn't new; it dates back to ancient Athenian writers such as Plato and Thucydides. And it influenced scholars and political theorists for thousands of years, including the American Founding Fathers. Even today, most undegraduates get their picture of Athenian democracy from such works as Thucydides' Peloponnesian War, which blames Athens' catastrophic defeat on poor decisions adopted because of voter ignorance.

Ober doesn't completely demolish the conventional wisdom of 2500 years. But he certainly calls it into serious question. I was asked to review the book for the philosophy journal Ethics because of my own work on political ignorance (e.g. here and here). Here is the abstract for my review:

In his excellent book Democracy and Knowledge: Innovation and Learning in Classical Athens, Josiah Ober argues that ancient Athenian democracy surmounted the dangers of political ignorance and made effective use of dispersed citizen knowledge to forge good public policy. He effectively demonstrates that Athenian democracy was more successful than the oligarchic and tyrannical governments of rival Greek city-states. He also shows how Athenian institutions worked to reduce the dangers of political ignorance.

On the other hand, Ober is less successful in showing that the relatively impressive performance of Athenian democracy should lead us to be optimistic about today’s democratic states. Indeed, his account suggests that Athens’ success in overcoming political ignorance was in large part the result of two important ways in which it differed from modern democracies: the small size of its electorate and the very narrow range of functions performed by its government.

Ober shows that ancient Athens was relatively successful in dealing with the problem of political ignorance in large part because of the ways in which it differed from modern representative democracy. In today's democracies, voters have strong incentives to remain "rationally ignorant" because there is very little chance that their votes will actually affect the outcome of an election. In ancient Athens, by contrast, there were only a few thousand voters, and, at any given time, some 30 percent of them (according to data I calculated from information in Ober's book) were serving in public office under Athens' system of allocating many government positions by lot (most of these offices were not full-time jobs). This ensured that individual voters had a much greater chance of affecting the outcomes of key decisions, and also that a large number could have an impact on policy in ways that go beyond voting, which further increased the incentive to become well-informed.

In addition, ancient Athenian government had far fewer and less complex functions than the modern state, which reduced the amount of knowledge voters needed to make informed decisions. In striking contrast to the modern world, most Athenian voters actually had direct personal experience with the main functions of government, which put them in a better position to assess its performance. By far the most important activity of Athenian government was the waging of war. Many, if not most, members of the Athenian electorate (which was, of course, limited to adult male citizens) probably had themselves served in the army or navy. Ancient military strategy and tactics were simple enough that common soldiers and sailors could assess the performance of generals more easily than today.

Ober argues that the relative success of ancient Athens should make us more optimistic about the ability of democracy to overcome the problem of voter ignorance today. In my view, such optimism is probably unjustified. To the contrary, Athenian democracy was successful in large part because of advantages that we do not enjoy. However, we might be able to learn from Athens' example. While we should not imitate Athens' policy of strictly limiting the franchise (the majority of the City's population was excluded because they were women, slaves, or resident foreigners) or it selection of key officials by lot, we should consider the possibility that we can reduce the impact of political ignorance by limiting the size, scope, and complexity of government.

In any event, anyone interested in democratic theory, political knowledge, or ancient Athens should read Ober's impressive book.

UPDATE: For a good history of the conventional wisdom on ancient Athenian democracy, see Jennifer Tolbert Roberts' book, Athens on Trial: The Antidemocratic Tradition in Western Thought, which traces it from the ancient world to modern times.

UPDATE #2: I should mention that Ober is not, of course, the first writer to defend ancient Athenian democracy against the political ignorance critique. For example, historian Donald Kagan has effectively criticized Thucydides' famous claim that Athens' defeat in the Peloponnesian War was caused by voter ignorance. However, Ober's book is more through and systematic than previous defenses, and draws on much more extensive evidence.

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Illinois Faculty Respond to the Tribune:

Larry Ribstein has posted a copy of a lengthy open letter from several prominent members of the University of Illinois School of Law faculty responding to the Chicago Tribune's breathless coverage and editorializing on the University's response to political pressure to admit unqualified applicants. It concludes:

The Tribune’s “clout goes to college” stories have all been about the abuse of power of University administrators and politicians. Newspapers also wield a great deal of power, and like all power, theirs too can be abused. Such is the case here. The Tribune should publicly apologize to those whom it has unjustifiably demonized. We are not so naïve as to expect this. Criticism such as this more often evokes anger than it does guilt. Indeed, we were advised against publishing this letter – “the Tribune has more ink than you do,” we were told. Yet “ink” is only as good as its content. What say you, Tribune? Can you own up to your mistakes and at least express remorse for unjustifiably damaging the distinguished careers that took lifetimes to build?
[Note: If you're going to comment on the substance of the letter, please read the whole thing before posting a comment.]

As I noted in my prior post, many of those commenting on this story seem shocked that a state-funded educational institution is subject to political pressure from state officials -- surely this cannot be news to folks at the Tribune! Yet there has been more criticism of the U. of I. than of the politicians who sought special treatment. Why is that?

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Sunday, July 5, 2009

No Money Down Mortgages--A Predictable Problem:

On Friday, co-blogger Kenneth linked to this piece in the Wall Street Journal explaining that the main cause of the "foreclosure crisis" is no-money-down mortgages. The author of the piece and critics disagree on whether the problem was primarily in non-subprime mortgages, but everyone seems to agree that 100% loan to value loans were a major factor in the wave of foreclosures.

It's always easy to say something is predictable in hindsight, but I can say this was eminently predictable, because I predicted it (see below), though I linked the problem more to "nonrecourse" mortgages than likely was warranted, given that lenders rarely seemed inclined to go after debtor assets regardless. The wonder is that the geniuses in charge of risk management at various financial institutions, public and private, and the raters at the major rating agencies, didn't. Here's what I wrote in August 2005, just when the housing bubble was peaking:

Just read that 61% of all new California mortgages this year are interest only, no money down.... If prices drop significantly in the next couple of years, as they likely will (given that only 17% of Californians can now afford the median house), thousands of people are going to walk away from their loans and let the bank foreclose.... Sure, it will ruin their credit record, but how much is a good credit record worth? Probably not $120,000 (the negative equity on a $600K loan--median single family home price in California--if prices decline a modest 20%). Anyway, many of the loans are adjustable with "teaser" rates used to qualify the buyers, who understand that in two years they will have to refinance or sell, because they won't be able to afford the new payments. They are counting on interest rates being lower, or on being able to "flip" the house for more money, and using the proceeds to get "back in the game." And they are likely to lose their homes, and the mortgage[e]s are likely to lose a good chunk of the money they are lending.


Are Law Schools Relevant to the Future of Law?

Bill Henderson ponders whether law schools are preparing their students — or themselves — for the future. As with so much that Henderson writes, it's a must read for those concerned about legal education.

UPDATE: More from Blog Emperor Paul Caron here.

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I Met Frederick Douglass Today: The oration by Frederick Douglass (Kevin McIlvaine) today at his home in Anacostia was marvelous. Frederick in ActionI found out they do not do this every year so I am very glad I took the opportunity to go. I recommend visiting the home and signing up for a free tour in advance. There is ample parking and a nice film about Douglass in the Visitors Center. Here are some photos.Me and FrederickKevin McIlvaine as Frederick DouglassFrederick & guests

Related Posts (on one page):

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

Is the Roberts Court "Anti-Environment"?

Recent articles in the National Law Journal, Daily Jorunal, and New York Times, highlight the Roberts Court's record in environmental cases during the October 2008 term. All three articles note that the side favored by environmentalist groups lost in all five environmental cases heard by the Supreme Court this past term. This fact has also been the subject of discussion on the Environmental Law Profs e-mail listserv. 0-5 is certainly a poor record, but what does it mean?

First, it's important to put the five cases in context. These are just five cases, and results from just a single term. It's also notable that only one of the five cases was decided 5-4, and four of the five cases came from -- and reversed -- the U.S. Court of Appeals for the Ninth Circuit. This latter fact could just as easily suggest that the Ninth Circuit is environmentally extreme as that the Supreme Court is hostile to environmental protection or particularly "pro-business" in environmental cases.

The Roberts Court's record in environmental cases is but one piece of the larger narrative that the Court has become significantly more conservative with the confirmations of Chief Justice Roberts and Justice Alito. I've addressed this claim at length before (most recently here), so I won't dwell on it at length. I will note, however, that there is no evidence -- not even from this term -- that Roberts and Alito have made the Court particularly more conservative or pro-business on environmental issues.

The NYT story quotes Temple law prof Amy Sinden saying that the cases this term "could all have come out very differently if we still had O’Connor on the court." This strikes me as absurd. Only one of the five cases, Summer v. Earth Island Institute, was decided 5-4. While it is plausible to argue that Justice O'Connor might have voted in favor to confer standing on the environmentalist plaintiffs in this case, it's hardly a sure thing. She dissented in Lujan v. Defenders of Wildlife, but she joined the majority opinion in the earlier case of Lujan v. National Wildlife Federation and wrote a restrictive standing opinion in Allen v. Wright. I also think that it's highly unlikely that her vote would have differed from Justice Alito's in the remaining environmental cases -- and even then it might not have changed the outcome.

So what should we make of the Roberts Court's record in environmental cases? This past spring I contributed a paper to the Santa Clara Law Review symposium on business and the Roberts Court focusing on environmental cases. In this paper, which was published before the end of the October 2008 term, I noted that if one looks at all of the environmental cases decided by the Roberts Court thus far, there is no reason to conclude that the Court is particularly "pro-business" in these cases -- at least not yet. My article stresses that this is a only a preliminary assessment, and that over time evidence in support of the "pro-business" or "anti-environment" charge may well emerge, but it has not yet.

If one wants to categorize the Roberts Court's record on environmental cases thus far, it seems to me there is a stronger case that the Roberts Court's environmental decisions are more “pro-government” than “pro-business.” Since John Roberts became Chief Justice, the Court has decided 10 of its 18 environmental cases in a “pro-business” way. At the same time, the federal government’s position has prevailed in 10 of the 15 cases in which it took a position, and government positions prevailed against private challenges in 11 of 16 cases. Further, one of the government’s biggest losses was also the biggest business loss – Massachusetts v. EPA - and that decision will also result in a substantial increase in government regulation.

Eighteen cases is still a very small sample. But if we look at the substance of the individual cases, so as to provide a “qualitative” and not merely quantitative assessment, I think the case for calling the Court more “pro-government” than “pro-business” only becomes stronger. most of the business wins maintained the status quo or affected a very small change in the law. (This term's Superfund decision on "arranger" liability is the notable exception.) The same cannot be said for some of the environmentalist victories. Massachusetts v. EPA is a more substantial environmental victory than the five environmental decisions combined were a loss for environmentalists.

One interesting fact is that the Roberts Court does appear to be more aggressive in accepting cert on environmental cases than one might expect, particularly given the smaller size of the docket. As Georgetown's Richard Lazarus has observed, the Court took several cases in which the Solicitor General's office argued against it (and, in some of those cases, the federal government had lost below). This could be part of the larger move toward taking more business and regulatory cases generally, or something else. I am not sure, but it will be worth watching to see if this trend continues.

A few more qualifications are in order. First, labels like "anti-environment" or "pro-business" are overly simplistic descriptions and tell us little if anything about the legal merits of individual cases. Even a "pro-environment" court may rule against the environmentalist position if their legal case is weak. Second, given the small number of environmental cases heard by the Roberts Court, any assessment is preliminary and subject to revision as the Court hears and decides more cases.

If my assessment that the Court is more "pro-government" than "pro-business" in its environmental cases, than the change in Presidential administration should have an effect. Specifically, if my analysis is correct, then we should see the Court begin to issue more “pro-environment” or “anti-business” decisions as the position of the various agencies and the Justice Department become less business friendly. This is what I would predict based on what we've seen thus far, but we'll have to see. Indeed, now that the Court has taken a potentially significant takings case for next term, and could well take another, I would be happy to see my hypothesis proven wrong, but I won’t hold my breath.

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What's in Waxman-Markey?

So what ended up in the Waxman-Markey climate bill? Kevin Williamson and Stephen Spruiell look under the hood of this climate policy vehicle. The cap-and-trade legislation sparked a special-interest feeding frenzy — and this is precisely what we should have expected. As I've argued before, a cap-and-trade regime for greenhouse gases is more vulnerable to rent-seeking than a tax-based alternative. There's no way to prove that a carbon tax bill would have been less pork-laden than Waxman-Markey, but it could not have been any worse.

Related Posts (on one page):

  1. What's in Waxman-Markey?
  2. Betting Blind on ACES:
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Is America Becoming Less Entrepreneurial?

Professor Scott Shane of CWRU's Weatherhead School of Management cites evidence that entrepreneurial activity is declining in the United States. The number of employer firms created annually has declined significantly since 1990, and the numbers of businesses created and those claiming to be self-employed have declined as well.

Most Americans would like to believe that this country is getting more entrepreneurial over time. While I wish this were true, the data don’t agree. Policy makers need to take a look at these data and acknowledge the pattern. More important, they need to understand why the rate of entrepreneurship is declining over time.

What accounts for this trend? Shane thinks one reason is "the Wal-Mart effect."

Large, efficient companies are able to out-compete small start-ups, replacing the independent businesses in many markets. Multiply across the entire economy the effect of a Wal-Mart replacing the independent restaurant, grocery store, clothing store, florist, etc., in a town, and you can see how we end up with a downward trend in entrepreneurship over time.

That may be true. It seems to me that another likely contributor is the increased regulatory burden. It is well documented that regulation can increase industry concentration. Smaller firms typically bear significantly greater regulatory costs per employee than larger firms (see, e.g., this study), and regulatory costs can also increase start-up costs and serve as a barrier to entry. While the rate at which new regulations were adopted slowed somewhat in recent years at the federal level (see here), so long as the cumulative regulatory burden increases, I would expect it to depress small business creation and growth.

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Rewewable Energy Shortfalls:

The WSJ reports that the hard push for renewable power in California could produce near-term power shortages, particularly in the even the California economy rebounds any time soon.

California's utilities are barreling ahead to try to meet a state mandate to garner 33% of their power from renewable sources by 2020, and some officials are concerned the effort might push up electricity prices and crimp supplies.

The state auditor warned this week that the electricity sector poses a "high risk" to the state economy. A staff report from the state energy commission also warns that California could find itself uncomfortably tight on power by 2011 if problems continue to pile up.

Utilities complain that the ambitious renewable-energy mandates, combined with tougher environmental regulations on conventional plants, are compromising their ability to deliver adequate power. . . .

The stresses being felt in California could be a harbinger of problems to come in other states. The federal Waxman-Markey climate-change bill, passed by the House of Representatives on June 26, would require states to obtain about 15% of their electricity from renewable sources by 2020. Currently, about 4% of U.S. electricity comes from renewables, excluding hydropower.

California's 33% renewable-energy target is so ambitious that it is likely to miss the goal by five years or more, energy officials now concur.

State energy agencies recently concluded it could cost $114 billion or more to meet the 33% mandate, more than double what it might have cost to achieve an earlier 20% requirement. Consumers will bear those costs, one way or another.

Agencies also identified problems with constructing sufficient transmission capacity to move renewable-based energy to cities.

One particular problem is that some popular forms of renewable power, such as solar and wind, are insufficiently reliable to provide base load power because they can be intermittent. They are also not yet cost-competitive with traditional power sources, which is why they are both subsidized and mandated.

If the goal is to encourage cost-effective renewable energy, without bankrupting consumers or creating supply problems, a revenue-neutral carbon tax would make more sense than the current mix of regulations and subsidies. It would create space for renewables as they become more cost-effective and encourage conservation without creating additional distortions in energy markets or prejudging what percentage of what sort of power source is the "right" amount. It would also be less prone to rent-seeking than massive bureaucratic regimes (a la Waxman Markey).

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