I am currently in Bozeman, Montana. I did not come here to see the President. Rather, this past week I attended a conference for judges and law professors on Terrorism, Civil Liberty, and National Security, sponsored by the Foundation for Research on Economics and the Environment. The conference ended yesterday, so now I'm fishing. Today we had a rainy — though fairly successful — float on the Madison. My Dad had the biggest fish of the day — a portly, 18 inch Rainbow.
As for the President's visit, most of the national coverage I've seen stressed the generally favorable audience at the town hall. For what it's worth, the local coverage I've seen and heard out here has stressed that anti-ObamaCare protestors substantially outnumbered supporters outside the meeting. This should not be surprising — this is Montana.
UPDATE: Saturday started cold, but warmed up nicely in the afternoon. Floating on the Yellowstone south of Livingston we caught well over a dozen nymphing in the morning, and landed some beautiful Rainbows and Cutbows on hoppers after lunch, before the rain returned. I'm praying for sun on Sunday.
The case involved a political ad attacking an incumbent D.A. for "st[anding] against children who have been sexually abused, sexually assaulted, or physically injured, and st[anding] with those who would commit such heinous crimes." The ad included the names of plaintiffs as people accused of "sexual abuse of child" or "physical abuse of child," and noted that the disposition in the cases was "declined at intake."
The plaintiffs then sued both for defamation and for invasion of privacy (on a "public disclosure of private facts" theory). The court held that the defamation claim could go to trial, because in context, the ad suggested that defendants were indeed guilty, and not just that they had been accused. That might be sound (though the dissent disagreed), but in any case isn't my concern here.
But the trouble is that the court also held that the invasion of privacy claim could also go forward. This claim does not require proof of falsehood (this is a disclosure of private facts claim, not a false light invasion of privacy claim); and the court's rationale would apply equally to an accurate report:
In order to recover damages for this tort, the appellees must prove that: (1) publicity was given to matters concerning the appellees' private life ; (2) the matter publicized is not of legitimate public concern; and (3) the publication of those matters would be highly offensive to a reasonable person of ordinary sensibilities.
[Footnote 14:] The disclosure of facts that are a matter of public record will not give rise to a public disclosure invasion of privacy claim.
[Footnote 10 (moved):] [T]he appellees also note that the Case Disposition Report contained "strictly confidential, non-public information, which ... remains confidential when it is transmitted to the CCCAC" and are "not public records at all." However, the fair report privilege statute does not require that a government report be "public" in order for the privilege to apply. We need not determine whether the Case Disposition Report was in fact "strictly confidential" because it has no bearing on the issue of whether the fair report privilege applies.
Freedom argues that it conclusively negated all three of the essential elements of the appellees' invasion of privacy claim. First, it contends that it conclusively established that the information included in the advertisements was of "legitimate public concern" because it discussed "alleged criminal activity" in Cameron County. "The determination whether a given matter is one of legitimate public concern must be made in the factual context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure." Freedom notes that the Fifth Circuit has held that "there is a legitimate public interest in facts tending to support an allegation of criminal activity, even if the prosecutor does not intend to pursue a conviction." However, the advertisements at issue here did not disclose any underlying facts that would support an allegation of criminal activity against the appellees.
Rather, the advertisements stated only that such allegations were in fact made against the appellees and were subsequently reported to the District Attorney's office. While underlying facts reflecting criminal activity can certainly be of legitimate public interest, Freedom points to no authority, and we find none, holding that the public has a legitimate interest in the mere fact that an individual has been accused of a crime.  Absent such authority, we cannot say that the information contained in the advertisement was of "legitimate public concern" as a matter of law.
[Footnote 15:] In arguing that the subject matter of the advertisements was "of legitimate public concern," the dissent notes that "[p]rotection of children from abuse is of the utmost importance in Texas" (citations omitted). By suggesting that the Court's decision today is somehow at odds with the goal of "[p]rotect[ing] children from abuse," the dissent has ironically -- but unsurprisingly -- employed the same type of moralistic intimidation that Zavaletta used to tar his opponent as complicit in child abuse. Of course, this Court agrees with the general proposition that the protection of children from abuse is a supreme public policy objective of this state. However, the dissent does not explain how the publication of mere accusations of child abuse without any supporting evidence, as is the case here, serves to advance this cause. The dissent also fails to recognize that by classifying a mere accusation of child abuse as an item "of legitimate public concern," it is adopting the same misguided view that the dissent derisively attributes to "many individuals ... in our society" -- that is, it ignores "the ideal that an accused is innocent until proven guilty."
This strikes me as a very dangerous result, because it undermines the ability to report, even accurately, about accusations of crime. I've generally criticized the disclosure tort even as to other matters, but it strikes me as especially unsound here: One can't decide whether the prosecutor is operating properly in declining to prosecute cases if one must face ruinous liability for even mentioning the name of a person who is accused.
What's more, this result seems to me hard to reconcile with Florida Star v. B.J.F., which set aside a verdict for publishing the name of a sex crime victim. There, as here, a newspaper was sued for publishing names drawn from a government report. Even if the information in the Case Disposition Report was supposed to be kept confidential, in Florida Star the victim's name was also supposed to be kept confidential (a police officer released the name in violation of government policy).
But the Court correctly concluded, I think, that "[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." And no such need can be sufficiently shown when the "sensitive information is in the government's custody," where the government has considerable "power to forestall or mitigate the injury caused by [the] release [of the information]" by "classify[ing] certain information, establish[ing] and enforc[ing] procedures ensuring its redacted release, and extend[ing] a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts."
Such a less drastic means may be imperfect (mistakes do happen), but the Court concluded that the government must use that means, rather than punishment of disclosure.
And if, as the Florida Star court held, the name of a crime victim may be published because it is sufficiently relevant to a matter of "public significance" -- even before a trial in which the fact of the crime has been officially proved -- then the same should be true as to the name of the alleged criminal.
As you can tell from some of my recent posts (e.g., this one and this one), I think that some courts have broadened tort liability far beyond where it should be. But remember that one reason why people comment about such cases is that they strike them as wrong. Generally speaking, I don't say as much about cases that strike me as right (setting aside current cases that are already in the news). "Here's a case from some years ago that reached entirely the right result" isn't as fun for me to write, or as fun for people to read.
So please be careful about generalizing from some cases -- even quite a few cases -- that are in the news to the legal system as a whole; in particular, avoid generalizations such as this one, from a comment in this thread:
Tort law is no longer about duty, breach, causation, and damages. Rather, it is a mechanism for wealth transfer to an injured party.
Idiotic court decisions such as this one can be explained by the fact that there is a plaintiff with serious injuries (or as here, a death), and somebody nearby with a big pot of insurance money. Courts basically have gotten out of the gate-keeping business -- as long as some jury feels like redistributing a little wealth, the courts will not stand in the way.
Read tort cases, and you'll find lots of serious discussion of duty, breach, causation, and damages, and lots of cases thrown out of court before they go to trial on various grounds. There's plenty of gate-keeping still going on in various areas.
Perhaps there's less than there should be. Perhaps even a few bad apple tort decisions cause a lot of problems. But it's best to avoid, I think, generalizations about all courts or even most courts based simply on some of the high-profile cases, which are often selected for publicizing precisely because they seem wrong or at least controversial.
Yesterday, I blogged about the silent alarm case: A store was being robbed. The safe was set up to trigger a silent alarm to the police station when it was opened (supposedly contrary to company policy). The police came. There was a shootout with the criminals, in which a patron died. The patron's family sued the store for negligence, on the theory that the store shouldn't have risked patrons' lives by triggering the silent alarm. The trial court granted the store summary judgment. The appellate court reversed the grant of summary judgment, holding that it was for the jury to decide whether silently calling the police was negligent.
Some readers agreed with the appellate decision, and thus presumably thought that a reasonable jury might find such conduct negligent, even if other reasonable juries might reach the opposite conclusion. (If no reasonable jury could find such conduct negligent, or if the store lacked any duty to try to prevent injury caused by a police reaction, then the trial court was right to deny summary judgment.) I thought I'd test this broad view of negligence law with the following questions:
(1) Let's say that a store owner is being shaken down by the mafia. Instead of giving in, he calls the FBI. Foreseeably, the mafia learns of this, and, equally foreseeably, decides to retaliate by shooting the store owner. They miss, but hit a patron. The patron's family sues, claiming that the store owner took "action which served to increase the hazard" of mafia attack "and which in fact caused the injury."
(2) Let's say that a store owner sees a gang crime taking place outside the store. Instead of ignoring it, he calls 911. The same chain of events happens.
Would you also conclude that a reasonable jury could hold the store owner liable in such cases as well?
Or would you think that, as a matter of law, there should be no liability for calling the police to alert them to the crime (especially if one calls them without at the same time broadcasting the fact to the criminals, though realizing that the criminals might learn of the call, or might get into a gunfight with the police)?
Or do you think that there's a legally significant differences between my two hypotheticals and the silent alarm case? (I agree that there are factual differences, for instance related to whether the call happens while the criminals are there or after they leave but when it's foreseeable that they'll return with violence; but I don't see why those differences should be relevant to the legal analysis.)
UPDATE: I notice that some commenters are trying to distinguish the cases on foreseeability grounds, but I don't think that works. Just as it's foreseeable — though far from certain — that silently calling the police when a robbery is in progress will lead to a shootout in which a patron can get killed, it's foreseeable that calling the police about mafia or gang activity will lead to retaliation in which a patron can get killed. (Sure, it could lead to retaliation when the store is closed, or against the store owner when he's not at the store; but so a silent alarm could lead to no shootout, or a shootout when the robbers have gotten a few blocks away from the store.) And if you're not persuaded that this is usually so, just assume the quite plausible scenario in which this is indeed foreseeable, because similar criminals have made a habit of retaliating that way in the recent past.
Nor do I think that there's a legally significant distinction — of the sort that would make a difference between granting summary judgment and denying summary judgment — between the risk of a shootout right away and a risk of a shooting some time later, assuming that the later shooting is indeed foreseeable. Why would it be potentially negligent to risk today's batch of customers but not to risk next week's batch of customers? If anything, the silent alarm scenario at least involved some possibility that calling the police would diminish the risk to today's customers, perhaps more than it would increase the risk (though I doubt there's any reliable way of estimating and comparing these two effects). My hypotheticals, at least as I have cast them, only increase the risk to customers.
A comment on the census / illegal aliens thread asked whether any states allow noncitizens to vote. I don't think they generally do that now, though some municipalities might. But apparently they used to do it in the past. Here's what I blogged on the subject seven years ago:
1. I generally oppose noncitizens' voting at the state and federal level, and where taxes or criminal laws are concerned, but in some contexts -- for instance, the internal governance of a government body, such as a law school -- belonging to the specific community (e.g., being a law professor) might be more important than belonging to the national community. More broadly, the idea of noncitizens voting wasn't as outrageous as some suggested. (Some have even argued that noncitizen voting is actually prohibited by the constitution; I think that's not so.)
2. A friend of mine -- a leading election law expert, who I'd say is considerably more on the Right than on the Left -- wrote something on an academic discussion list about the history of noncitizen voting, and I got his permission to pass it along:
As a historical matter, non-citizens were routinely allowed to vote in state and local elections at the close of the 18th century (provided they met the other significant restrictions of the time, i.e. male, property ownership, etc.). Indeed, states often offered this benefit as a way to help attract immigrants, who were seen as economically beneficial.
In the early 19th century, even as the franchise was rapidly expanded for citizens, there was a trend to limit immigrant voting. However, this trend reversed again after the Civil War, in part due to the service of immigrants in both Northern and Southern armies during the war, and by the 1890s about half the states allowed non-citizens to vote.
The racist and nativist philosophy of the progressive movement fed hostility to non-citizen voting, and was augmented by the assassination of President McKinley by an immigrant, and finally the "Red Scare" of Woodrow Wilson and Mitchell Palmer after WWI. The last state to abolish immigrant voting was Arkansas, in 1926.
As a constitutional matter, in Skafte v. Rorex, 553 P.2d 830 (1976), the Colorado Supreme Court found no constitutional right for permanent resident aliens to vote. The U.S. Supreme Court has not specifically ruled on it, but has suggested that citizenship with respect to voting is not a suspect class subject to strict scrutiny. Hill v. Stone, 421 U.S. 289 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973).
The justification, of course, is that because non-citizens have not chosen to join the body politic (especially given that in the U.S., it is pretty easy to do so), they therefore have not shown an interest in the long term welfare of that polis, and so should not vote. The flip side is that they are subject to the draft, pay taxes, etc., like the rest of us.
1. To begin with, I should stress that Baker and Stonecipher are indeed arguing that the count should include both citizens plus permanent resident noncitizens. Parts of the op-ed seem to suggest that only citizens should be counted (see here for an example of its being interpreted this way); but I've confirmed that this was not their intention. The piece was originally much longer than the Journal's word limits allow, and much was cut in the process; Prof. Baker was kind enough to allow me to include his original piece, followed by an exchange he and I had, in this post — you can see it by click on "Show the original full Baker / Stonecipher draft" below. (He also asked me to mention, though, that he is out of the country and will not be able to read and respond to any of the comments that this post might produce.)
2. On to the constitutional basis for the census's current practice of counting everyone who lives in the U.S., whether citizen, permanent resident alien, legal temporary resident alien (which could include people who have lived here for years, as students or as temporary workers), or illegal alien. The Fourteenth Amendment says, in relevant part,
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
The first sentence strikes me as pretty explicit: Apportionment must be "counting the whole number of persons in each State," with one explicit exception. What's more, the next sentence explicitly mentions "citizens," which further makes clear that "the whole number of persons" doesn't mean citizens or eligible voters. This provision was a revision of article 1, § 2, which said,
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
So there too the focus was on "the whole Number of free Persons" in a State (with two exceptions), and not citizens.
The Journal op-ed doesn't mention these provisions at all, but the original long Baker/Stonecipher draft did speak to this:
At the Founding, slavery largely dictated the Constitution’s language on the Census. Thus, the apportionment of representatives, as well as direct taxes, was constitutionally to be undertaken according to an “Enumeration” of "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, [and further including] three fifths of all other Persons," i.e., slaves. It was to be a count of “We the People of the United States,” and within the stated categories of slaves, indentured servants and “free Persons,” each State’s representation in the House of Representatives was tied to permanent residence within the country.
The first Congress provided that the 1790 census would count “inhabitants” and “distinguish” key and notable subgroups, directing, “[t]hat the marshals of the several districts of the United States ... cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons from all others; distinguishing also years and upwards from those under that age ...” (italics added) The term “inhabitant” at that time had a well defined meaning including “one who is bona fide a member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.” See Oxford English Dictionary.
So the logic is that the constitutional text "whole number of persons in each State" means "whole number of inhabitants" (borrowing from the 1790 census authorization act), which in turn means "whole number of bona fide members of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer," and which in turn means "whole number of citizens or permanent resident aliens."
Yet I don't think this works. First, the theory that "we the People" applies here and includes slaves (at a 3/5 level) and legal permanent residents (under a theory of "virtual representation," as an e-mail I quote below from Prof. Baker suggests) but not others doesn't strike me as persuasive.
Second, the definition of "inhabitant" they give stems from an 1824 House of Representatives contested election decision that was interpreting the preceding sentence in the constitution, "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Of course those made eligible by that sentence would undoubtedly be American citizens, the question being simply whether they are citizens who reside in that particular state. But this hardly means that "inhabitant" was any narrower than "one who inhabits."
In fact, if one looks at leading legal dictionaries of the late 1700s, one finds the word defined as "a dweller or hous[e]holder in any place" in both Jacob's Dictionary (10th ed., London 1782) and Cunningham's Dictionary (3d ed., London 1783). Burn's Dictionary (1st ed., London 1792) notes that "with respect to the public assessments, and the like," the term does "not extend to lodgers, servants, or the like; but to householders only," but that clearly can't be the definition contemplated by the first Census Act, which surely did not count only householders.) So the original Census Act, the original constitutional provision, and the currently effective constitutional provision all point in the same direction: Apportionment is to be done based on actual residents.
To be sure, the Framers likely weren't thinking at all about illegal aliens at the time; it's hard to tell for sure what they would have said had they thought about them. But we know what they did say: "the whole number of free Persons" and, several decades later, "the whole number of persons in each State." In the absence of some strong evidence to the contrary, that sounds like it includes illegal aliens as well as legally resident ones. It certainly doesn't seem "outrage[ously]" "unconstitutional" for the Census to take such a view of the provision.
3. Now the op-ed and the original draft do mention one constitutional authority:
In the 1964 case of Wesberry v. Sanders, the Supreme Court said, “The House of Representatives, the [Constitutional] Convention agreed, was to represent the people as individuals and on a basis of complete equality for each voter.” It ruled that Georgia had violated the equal-vote principle because House districts within the state did not contain roughly the same number of voting citizens. Justice Hugo Black wrote in his majority opinion that “one man’s vote in a congressional election is to be worth as much as another’s.” The same principle is being violated now on a national basis because of our faulty census.
But this was an imprecise statement on the Court's part, in a case where the basis for the count wasn't at issue. Even Baker and Stonecipher don't take it seriously, because they think the Census should count not just voters, not just voting age citizens, not just all citizens (note that the percentage of Americans under 18 varies from 22.3% in West Virginia to 32.2% in Utah, so there is a substantial difference between counting voting age citizens and all citizens), but all citizens plus legal permanent residents.
Plus the constitutional text expressly doesn't limit itself to voters, but instead talks about persons generally. In the Framers' time, some states had considerably fewer voters per capita than others, because they had higher property qualifications for voting. (I believe that the percentage of the white male adult citizen population eligible to vote ranged from 60% in some states to 90% in others.) "Equality for each voter" would have meant those states would get fewer representatives. Yet the framers expressly rejected that position by calling for representation by total population (with special provision for slaves), not by voting population.
So it seems to me that it is the op-ed's proposal that would likely be unconstitutional, and the current Census scheme is likely constitutionally permissible. And even if the text is ambiguous enough to leave Congress with the flexibility to choose either approach (and I don't think that's so), the current approach seems to be at least one of the constitutionally permissible options.
The full Baker / Stonecipher draft, posted with Prof. Baker's and the Journal's permission:
WILL THE 2010 US CENSUS DEFRAUD MANY STATES OF REPRESENTATIVES IN CONGRESS AND VOTES IN THE ELECTORAL COLLEGE?
Through ignorance and arrogance, the Census Bureau is poised again to defraud a number of States of one or more members in the House of Representatives to which they should be entitled by the Constitution. It is the Bureau’s responsibility to count dicenially the number of American citizens who are at the time legal, permanent residents of one of the United States. This Census count determines the number of congressional representatives to be accorded each of the several States. In recent history, the Census Bureau has failed to confine its count to persons who are either American citizens or legal, permanent residents of the United States. The Bureau has chosen instead to include all persons physically present within the United States, without questioning whether or not they are citizens or are here legally or illegally. The Census Bureau has thus given a newly expansive and wholly unintended meaning to the time-honored phrase “We the People of the United States” and in doing so has badly distorted representative government as envisioned by our Founding Fathers and prescribed in our Constitution.
1.WHO SHOULD GET COUNTED?
That the census count is not simply a numerical snapshot of only American citizens and those permanently residing within the United States legally is one of (albeit certainly not the only) the best dirty little secrets kept by a government agency located in our Nation’s Capitol. Not only is this over-count calculated to skew the immigration debate by further blurring the line between legal and illegal residents in this country, it also is designed to effectuate both political and economic power shifting among the several States. In addition to determining each State’s number of representatives in the House of Representatives, the Census will determine a State’s electoral vote count for President and its share of $300 billion in federal funds. Citizens from States that have recently lagged in the numerical count behind States whose gained numbers can be largely (if not totally) attributed to the inclusion of non-citizens and non-resident immigrants – which, over several Censuses, has been all but five to twelve States – ought to be outraged that their representatives and senators, regardless of party, are silently standing by and allowing the Census Bureau to erode their States' rightful political powers by utilizing an over-inclusive count that makes a mockery of the Constitution’s mandate for representative government.
At the Founding, slavery largely dictated the Constitution’s language on the Census. Thus, the apportionment of representatives, as well as direct taxes, was constitutionally to be undertaken according to an “Enumeration” of "the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, [and further including] three fifths of all other Persons," i.e., slaves. It was to be a count of “We the People of the United States,” and within the stated categories of slaves, indentured servants and “free Persons,” each State’s representation in the House of Representatives was tied to permanent residence within the country.
The first Congress provided that the 1790 census would count “inhabitants” and “distinguish” key and notable subgroups, directing, “[t]hat the marshals of the several districts of the United States … cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons from all others; distinguishing also years and upwards from those under that age …” (italics added) The term “inhabitant” at that time had a well defined meaning including “one who is bona fide a member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.” See Oxford English Dictionary.
Notably, it was a matter of open concern at the time of the Founding that a State would manipulate its population numbers in order to increase unfairly its representation in the House and its votes in the Electoral College. As a check against abuses of population over-counting, the Framers thus tied the level of direct taxation to the Census count, thereby balancing a benefit (representation in the House) with a burden (direct taxation). As James Madison wrote in The Federalist (No. 54), “It is of great importance that the states should feel as little bias as possible, to swell or to reduce their numbers.”
The Thirteenth Amendment, ending slavery and involuntary servitude, made everyone a free person. The Fourteenth Amendment thereafter declared “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens.” The Census count, however, (unlike the right to vote in the Fifteenth Amendment) was not tied to citizenship, but included as well persons who were foreign-born but had not yet been naturalized, so long as they were permanent residents of the United States. The Amendment accordingly provided for apportionment of representatives by “counting the number of whole persons in each State, excluding Indians not taxed.”
2. WHO DOES GET COUNTED?
Today, with large numbers of foreign-born persons in the country temporarily – some legally and some not – several States, aided and abetted by the Census Bureau, appear to have manipulated their Census counts so as “to swell…their numbers” at the expense of other States. Over several Censuses, the illegitimate beneficiaries of the Bureau’s current practice to count anyone “present” within the State, without regard to citizenship, permanent residence status, or even questioning legal status, have been New Mexico, California, Arizona, Texas, Colorado, and as many as seven others. Virtually all the remaining thirty-eight to forty-five States have experienced an unfair erosion of their representative power in re-apportionment and votes in the Electoral College.
More particularly, according to Election Data Services, as of its December 2008 release based on latest (July 1, 2008) official Census Bureau estimates, the loss of House seats as a result of the 2010 Census is projected to be as follows: 1) States certain to lose one seat are Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio, and Pennsylvania; 2) States likely (but not certain) to lose a seat are Illinois, Minnesota, Missouri, and Ohio (a second seat). A rough analysis of available information suggests that, if the decennial census did not increase the count of non-legal residents in other states, Louisiana, for example, would almost certainly not lose a seat. There is every reason to believe that one or more of the other States projected to lose representatives would likely not do so if the count proceeded along proper lines, including permanent residence, but not including foreign-born persons here temporarily as guest workers, or otherwise in this country, whether legally or illegally. A return to this method of taking the Census, as constitutionally prescribed, alone can restore representative government to “We the People of the United States.”
3. THE SUPREMACY, NOT OF LAW, BUT OF NUMBERS
The Census has drifted far from its constitutional roots. From the first Census until the late nineteenth century, Congress had U.S. Marshals conduct the Census. The first Census statute required U.S. Marshals to take a specific oath, swearing (or affirming) that “I will well and truly cause to be made, a just and perfect enumeration and description of all persons resident within my district.” Beginning with the 1880 census, Congress started to shift control of the Census to “professionals,” i.e., statisticians.
In 1929, the House of Representatives transferred to the Census Bureau the power to make the calculations for reapportioning congressional districts. The 1940 Census was the first use of sampling.. Over the years, Congress and the Census Bureau have added inquiries that have little or nothing to do with its constitutional purpose, and the number of sampled questions continues to grow.
For 2010, the Census Bureau has dropped the “long form” questionnaire sent to a sampling of the population because it has introduced a new, expanded questionnaire, the “American Community Survey” (ACS), which on a continuing basis seeks a wealth of information from a random sampling of recipients, but is not calculated to produce an accurate count of permanent residents in the United States. It is thus quite apparent that the Census Bureau continues to spend unprecedented amounts of money to get more and more accurate data, but remains indifferent to the information most relevant to the constitutional purpose of ensuring representative government.
4. DILUTION BY THE CENSUS
By including in the Census count persons who are present in the United States, but not here permanently nor intending to stay, and without regard to whether they may or may not be here legally, the Census Bureau is undermining the equal representation requirement in the Constitution. The Supreme Court has held that a State’s congressional districts must be drawn in a way that as nearly as practicable gives equal weight to each voter. As stated in Westberry v. Sanders, 376 U.S. 1, 14 (1964), “The House of Representatives, the Convention agreed, was to represent the people as individuals and on a basis of complete equality for each voter.”
By awarding extra House seats to some States, based on the inclusion of foreign-born persons temporarily present within a State at the time of the count, the Census Bureau is unfairly enlarging the representation of that State’s residents, while diluting all other States' representation. This violates the time-honored principle of apportioning representation among the several States in the House of Representatives in a manner that ensures the “equal weight of each voter.” In Westberry, the State violated the equal vote principle for representation as to voters in districts that had more citizens/voters than other House districts in the same State. Westberry simply assumes that the apportionment of representatives among the States has been faithful to the equal vote principle. The Census Bureau, however, is mal-apportioning representatives from State to State, just as in the past some States had done from one congressional district to another within a State.
Including in the Census count foreign-born persons present in the United States, but not citizens nor permanent residents, for purposes of determining representation in the House of Representatives and votes in the Electoral College devalues representative government by “We the People of the United States” as prescribed by the Fourteenth Amendment of the Constitution. Whatever data or information the Census Bureau may wish to collect concerning the population of the United States, it should not be permitted to disregard the Constitution and flaunt this country’s immigration and naturalization laws when it comes to counting American inhabitants to ensure representative government by our elected representatives.
John S. Baker, Jr. teaches constitutional law at Louisiana State University;
Elliott Stonecipher is a Louisiana pollster and demographic analyst.
* * *
Here's a brief e-mail exchange that I had with Prof. Baker about this (before he sent me the full draft version), which he also allowed me to blog. From me:
John: I read this op-ed with interest, but I wonder how your proposal would be squared with the text of the Fourteenth Amendment, and, before that, article I, section 4. Don’t they expressly call for apportionment by “counting the whole number of persons in each State, excluding Indians not taxed,” rather than just by counting citizens or voters?
Also, I take it that the Wesberry quote is imprecise (likely because it arose in a case where by-voter vs. by-citizen vs. by-inhabitant apportionment wasn’t at issue). As I understand it, the Framers were specifically anticipating that states would have very different voting qualification rules, so that two equally populated states might have very different numbers of voters – many in a state such as Vermont, that had universal suffrage for white male citizens over 21, and fewer in a state such as Rhode Island, that had quite restrictive property qualifications. [Note: I have since changed my argument to exclude Vermont, just to stick with the original 13 states, though Vermont's admission was very much on the horizon in 1789, and Vermont already had universal white male adult citizen suffrage by then. -EV] Yet they expected that representatives would not be allotted by the number of voters, but by “the whole number of free persons” (setting aside the 3/5 compromise for slaves, and Indians). Or am I missing something?
All the points you have raised were addressed in earlier versions. The pre-submission version were 3600 words. The submitted version was 1700 words. We were told to cut it 1300 words. After numerous edits, the WSJ published about 800 words. Most of what they cut was legal argument. What they cared about most was hitting the general public, which meant that the possibility of California losing 8 House seats became very important. On that, they were correct. That's what has gotten the attention in our radio talk show interviews. Brad Reynolds and I hope to lay out the whole case in a lawsuit, if we are able to get a governor to agree to be the plaintiff.
I will be speaking to Federalist Society chapters on this topic during the coming academic year and possibly at the National Convention.
John: Thanks very much, and sorry that things were so much cut. But I’m still not sure how the recommendation is consistent with the Fourteenth Amendment (and the part of article I, section 2 on which that’s based). Given that those provisions speak of “the whole number of persons in each State, excluding Indians not taxed,” wouldn’t that necessary include noncitizens?
Your point will certainly be raised by the Census Bureau in the event we sue the agency. We will counter with the following. The first part of section 2 of the Fourteenth Amendment, except for direct taxes, basically tracks the original language regarding apportionment, as quoted below. The Census is the means by which to determine apportionment, "according to their respective numbers," as provided in both. The Census legislation from the First Congress for the 1790 Census provides for a count of "inhabitants" as a basis for determining "their respective numbers." By beginning with this same language, we argue, the Fourteenth Amendment should be read to have changed only to the extent of counting former slaves as whole persons as well as recognizing that there are no longer "persons bound to service for a term of years." The language still means that apportionment should include only persons who qualify as "inhabitants," as defined in the OED and based on a Congressional precedent regarding the definition of "inhabitant." Under your reading, the Census should count and use in the numbers for apportionment every tourist legally in the country. While one former Census official gave me information that suggested the Census Bureau may in fact be counting legal tourists, such a practice is difficult to defend. The stronger argument for the Census Bureau would be that it should not count legal tourists because they are not "inhabitants," and should count illegals who intend to stay here. The Bureau would use other dictionary defitions for "inhabitant" which ignore the legality of their presence and focus exclusively on residency.
There were no limitations on immigration until after adoption of the Fourteenth Amendment. Virtually everyone here was here legally, including slaves. But few thoughtful people would argue that tourists legally in the country during a census, before or after the Fourteenth Amendment, should be counted for purposes of apportionment. Apportionment based on population identifies those who are to be represented in the House of Representatives. Neither legal toursists, nor illegal aliens, should be represented in the House. To argue that they should be undermines the focus of the Fourteenth Amendment on citizenship. If one gets the benefit of one of the most important rights of citizenship, representation in the Congress, citizenship has been to that extent degraded. I say this as one who favors increased legal immigration leading to eventual citizenship.
There is no guarantee that in a suit against the Census Bureau that we would ultimately prevail. I would expect sharp divisions of opinion and a close vote, if it gets to the Supreme Court. We think it is an important question which has not seriously been considered, despite the extremely significant consequesnces that follow from a decision one way or the other.
I guess I’m still moved by the text of the Fourteenth Amendment and article I, section 2; and to the extent the original Census mentioned “inhabitants,” and that’s taken as an authoritative interpretation of “the whole Number of free Persons” and the state’s “Numbers,” it seems to me that inhabitants means everyone living in the state. Perhaps it may reasonably be read as excluding tourists, but it seems to me that it would include both the legal non-permanent-resident aliens (such as students who may live in the state for years) and the actually permanently resident illegal aliens. I recognize that illegal aliens weren’t a relevant category then, but it seems to me that the words used – whether “the whole Number of free Persons” or “inhabitants” – do on their face include such aliens.
What’s more, the point about the focus of the Fourteenth Amendment on citizenship seems to me to be inconsistent with your [view] that the count should include noncitizen permanent residents. And beyond that, it seems to me hard to see how the Fourteenth Amendment should be read as being limited to citizens, given that the preceding and following sentences expressly use “citizens” when citizens is meant – why then would “the whole number of persons in each State” be read as limited to “citizens”?
In any event, though, I wish some of these points remained in the op-ed, though I realize that the word limits can be brutal, and can require that a lot of meat be cut.
I am attaching the original article as submitted so that you can see that we explained from the start that legal, permanent residents are rightly covered by the Census....
Note the focus on "We the People of the United States." While the states set the qualifications for voting, the Constitution not only set the qualifications for members of the House, but identified who were being represented. Part of the point of referring to slaves as persons (although counted as three-fifths of one) rather than as property --as some northerners argued in order to exclude them from apportionment-- was that they were being included within "We the People of the United States."
The census enumeration as the basis for apportionment (as opposed to other information gathered by the Census Bureau, including information about illegal aliens) determines who is entitled to be represented. The counting of slaves and women, in the past, and children and legal permanent residents, still, relates to their being virtually represented. While the notion of virtual representation has long been rejected as to former slaves and women by constitutional amendments and may seem a strange concept to modern-day Americans, it clearly still applies to children and --we would say-- to legal permanent residents, as well as to prisoners and felons denied the right to vote. From the beginning, persons here on a legal, permanent basis have been thought to be represented because they are among the "People of the United States." Clearly, tourists and illegal aliens are not.
Charles Lane Upholds the Honor of the Republic Today:
I am breaking radio silence midweek, in the midst of writing a chapter in my little book, Returning to Earth: Abiding Principles of US-UN Relations: The Obama Administration and Beyond ... the chapter, as it happens, is titled: "The UN-of-Values: From Human Rights to Multiculturalism in the General Assembly and Among the NGOs." This chapter covers, among other things, the policy the US ought to adopt with respect to the UN Human Rights Council, or such extravaganzas as Durban I and II. So I was of course interested in the coverage of the award of the Medal of Freedom to Mary Robinson, who oversaw the Durban I in 2001. Given that Durban I was one of the greatest street fairs of illiberalism, not to mention anti-semitism, since the 1930s, I of course viewed the whole thing as something between a failure to vet her resume and what I would speculate was an attempt to placate some faction within the administration that worships at the idealized teat of the UN and wanted a consolation prize for the US pulling out of Durban II. Enter the Washington Post's Chuck Lane, who wrote in the Post and added in no uncertain terms in a CBS TV interview (following the Robinson interview in the clip) that he couldn't see what could justify handing Robinson this country's highest civilian honor.
The Tenth Circuit divided 2-1 today on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. The issues arises because federal prosecutors petitioned for a Writ of Mandamus, to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. The issue was whether a domestic violence misdemeanant can be criminally convicted for possessing a gun if the jury decides that he poses no threat of violence, after the defendant raises the issue as an affirmative defense.
In case no. 09-4145, Judges Hartz and Kelly voted to issue the Writ of Mandamus which the prosecutors had sought. Judge Murphy dissented, and would have set the issue for briefing.
The case involves two separate issues: first, whether the federal d.v. gun ban is constitutional in all circumstances, and second, whether the answer to the first question is so clear as to make mandamus appropriate. On the second question, at least, I think Judge Murphy has the better argument, although the majority opinion has some valid points.
As for Judges Hartz and Kelly, who authored the majority opinion to issue the writ, Judge Hartz's record on the Second Amendment suggests hostility to the right. Judge Kelly's record, in contrast, demonstrates that he takes the right seriously, and attempts to apply it conscientiously to the cases at bar. (As detailed in my Denver University Law Review article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, which was recently cited in a concurring opinion by Judge Tymkovich in United States v. McCane, upholding the felon-in-possession statute.)
Procedural Constraints on Discovering the Identity of Anonymous Sources, Even Outside Claims Based on Public Speech?
Solers, Inc. v. Doe, decided today by the D.C. Court of Appeals, strikes me as a very important case for litigators. The facts:
Appellant Solers, Inc. “is a for-profit Virginia corporation with its principal place of business in Arlington, Virginia. [Its] work principally consists of developing software and other technology for agencies within the Department of Defense.” Solers is a privately held company, owned by its employees.
Appellee SIIA describes itself as “the principal trade association for the software and digital content industry” and explains that “[o]ne of [its] chief missions is to protect the intellectual property of member companies by fighting the software piracy that threatens to undermine the entire industry.” While Solers’ work is primarily in the same industry that SIIA seeks to protect, Solers is not a member of SIIA.
In order “[t]o fulfill its mission, SIIA [has] established an Anti-Piracy Division and developed anti-piracy programs involving both education and enforcement.” “SIIA’s enforcement program enables sources with knowledge of software piracy to report
anonymously to SIIA via telephone or the Internet about companies [committing
piracy] ....” To encourage reporting, “SIIA allows individuals to submit information ...
on a confidential basis.” Through this program, John Doe, an “individual,” reported that
Solers was engaged in illegal activity. Accusations of copyright infringement followed, and Solers sued Doe but has not been able to learn his or her identity....
SIIA acknowledges that, “[i]n March 2005, [it] received a communication via the Internet from [Doe] who alleged that Solers was using unlicensed software.” Soon thereafter, on April 29, 2005, SIIA’s attorney wrote to the President of Solers, accusing Solers of “copyright infringement.” The letter stated that SIIA “has evidence that Solers, Inc. is engaged in the unlawful copying and use of software published by the software publishers listed in [the attached exhibit] in violation of the Copyright Act, Title 17 U.S.C. § 501, et seq.” The letter announced that “[SIIA is] prepared to seek remedies available under the Copyright Act,” but explained that SIIA “prefer[s] to work with companies to reach a resolution that is quick, fair and out of the public spotlight ... [through] a three part process [that leads to] an easy and quick settlement ....”
SIIA’s letter demanded that Solers complete an internal audit of its software programs, instructed Solers on how to complete the audit, and requested that Solers deliver the results to SIIA. According to SIIA’s letter, once the audit was completed, the parties would negotiate a settlement and SIIA would release Solers “from all claims and causes of action for copyright infringement.” The letter warned, however, that “if Solers  is unwilling to promptly conduct an audit and the other activities mentioned [in the letter], [Solers] should be aware that SIIA will not hesitate to initiate litigation against Solers  for copyright infringement.” The letter did not provide any information about the alleged “evidence” of Solers’ “copyright infringement,” or any details regarding the source of this “evidence.” ...
Solers ... asserts that “[a]s a result of the communications between Solers and SIIA ..., Solers satisfied SIIA that [Doe’s] allegations were false. On Friday, May 13, 2005, counsel for SIIA confirmed to [Solers’ attorney] that SIIA had ‘closed its file’ on Solers.” (SIIA states that it decided not to pursue a claim against Solers in order to protect the identity of John Doe, not because it concluded that his allegations were false.)
The question is whether Solers could just subpoena SIIA for information that would help Solers learn Doe's identity, so that Solers can sue Doe. Under standard discovery rules, subpoenaing third parties for information that helps uncover a potential defendant's identity is generally just fine, so long as the information is likely to lead to the discovery of relevant evidence (surely so as to the identity of a defendant).
But in recent cases involving online libel, courts (in cases such as Doe v. Cahill and Krinsky v. Doe 6) have developed doctrines that help protect anonymous speakers against revelation of their identity. Most court decisions in this field conclude that while in principle the speakers could be unmasked, the plaintiffs must generally show that there's some potential merit to their case.
That way, a company that doesn't like some criticisms, and suspects that the criticisms were posted by an employee, can't just sue on some trumped-up legal theory, discover who posted the criticisms, and then drop the lawsuit and fire the employee. On the other hand, if a company does have a credible case (e.g., for disclosure of trade secrets, libel, and so on), it would be able to use subpoenas to try to discover the identity of the speaker, once it shows a court that there is indeed a credible case. (All this is limited to subpoenas as other coercive discovery techniques: If the third party, such as the SIIA in this instance, is willing to turn over the information voluntarily, this test doesn't apply, and the turnover is just fine, in the absence of some promise by the third party to keep matters confidential, or some other confidentiality obligation such as a statutory prohibition on disclosure absent a subpoena.)
Solers applies this principle beyond anonymous postings aimed at the whole world, and to anonymous tips given to a private organization. Even in such cases, the D.C. Court of Appeals holds, the subpoena can't be enforced unless certain showings are made (whether they can be made in this case was left for the trial court to decide on remand):
When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.
It seems likely that the same would apply not just to defamation claims but also to other claims in other fact patterns, such as claims that a confidential source has breached a confidentiality agreement, revealed a trade secret, or infringed copyright. It might even apply (though the matter is less clear) when the plaintiff simply claims that the source has some information that's relevant to a lawsuit against someone else altogether, and that the plaintiff wants to identify the source to then subpoena him for that information.
The court says that it's not deciding anything outside the context of defamation cases, and other "alleged injur[ies]" that are "a consequence of the defamation" (such as the alleged interference with business relations involved here). But the logic of the court's opinion would apply to many situations involving anonymous speakers, and not just those who are accused of libel.
And this is especially so because whatever the plaintiff's current claim, an anonymous source might worry that the plaintiff might sue the source for defamation if the source's identity is revealed. Limiting the protection against subpoenas to cases where there's already a defamation lawsuit would thus undermine whatever benefit such protection is supposed to provide.
This may all be quite sensible, or it might not be. My point is that this is a very important step that should be of interest to litigators in a wide range of cases, even ones far afield from the public speech context in which the anonymous speaker protection doctrine arose.
The Cartoons that Shook the World Won't Shake the World in This Book:
Yale University Press has decided not to include controversial Danish cartoons depicting Muhammad in a book about the cartoons and the resulting controversy. Other depictions of Muhammad slated for inclusion in the book, The Cartoons that Shook the World, have also been pulled. The NYTreports:
The book’s author, Jytte Klausen, a Danish-born professor of politics at Brandeis University, in Waltham, Mass., reluctantly accepted Yale University Press’s decision not to publish the cartoons. But she was disturbed by the withdrawal of the other representations of Muhammad. All of those images are widely available, Ms. Klausen said by telephone, adding that “Muslim friends, leaders and activists thought that the incident was misunderstood, so the cartoons needed to be reprinted so we could have a discussion about it.” The book is due out in November.
John Donatich, the director of Yale University Press, said by telephone that the decision was difficult, but the recommendation to withdraw the images, including the historical ones of Muhammad, was “overwhelming and unanimous.” The cartoons are freely available on the Internet and can be accurately described in words, Mr. Donatich said, so reprinting them could be interpreted easily as gratuitous.
He noted that he had been involved in publishing other controversial books . . . and “I’ve never blinked.” But, he said, “when it came between that and blood on my hands, there was no question.”
The trouble is that slippery slopes in politics appear to obey the same laws of physics that control friction in real-world slopes; in both cases, it takes more energy to start something sliding than it does to keep it sliding once it gets moving. Designing an effective and credible obstacle to taking the next step beyond Obamacare to "NHS-style 'socialized medicine'" is a nontrivial task. Maybe it's possible. But until somebody proves to me that is possible, I for one intend to continue opposing taking the first step.
Megan McArdle raises similar concerns here (see also here).
The case -- Kelly v. Kroger Co., 484 F.2d 1362 (10th Cir. 1973) -- is from the 1970s, but it continues to be cited, and its logic is consistent with the logic of other recent negligent provocation arguments, so I thought I'd pass it along:
[D]ecedent was a customer in defendant’s store in Kansas City, Kansas, when a holdup took place. The robbers entered the front of the store with guns, took money from the checkout stands, and then ordered the store manager to open the safe in his office. The opening of the safe caused an alarm to sound at the Kansas City police department, but not at the store.
Several police officers responded immediately to their alarm, and when they entered the front door, the robber ran to the rear part of the store. The police fired a shot at one of the robbers at this time in the store. The decedent was in the rear of the store, and a robber seized her as a hostage or a shield. As the robber left the store at the front, he forced her with him up the street a block or so as he attempted to escape. The police followed and the robber then shot and killed the decedent. The police then shot at the robber as he ran some distance, and captured him.
The attempted robbery took place about 1:30 in the afternoon. During the course of the robbery, the store employees did not sound any other alarm nor attempt to direct or assist the police. This store had been robbed about a month before. Some fourteen robberies of grocery stores in the northeastern part of the city, where the store here concerned is located, had taken place in the prior eighteen-month period. An armed guard had been stationed in this store from time to time.
The complaint is based on the theory that the defendant was negligent in store procedure it had adopted to be followed during the course of such a robbery. The negligence alleged is thus the action taken once the holdup was in progress. The allegations are directed particularly to the silent alarm attached to the store safe....
The trial court, in granting summary judgment for the defendant, held in effect that no negligence was stated in the allegations, and even had there been it could not have been the proximate cause of the injury because the consequences could not reasonably have been foreseen....
The standard of care owed to business invitees [under Kansas law] is ... one of “due care to keep the premises reasonably safe” for their use, but the proprietor is not an insurer of their safety.... The defendant had issued a pamphlet to its employees telling them what to do in the event of a holdup. The particular emphasis in the pamphlet was to do nothing to excite or startle the robbers. It stated in part that many robberies are by young persons who might start shooting if something unexpected should happen. The employees were warned particularly not to give any verbal alarm in the street because this would greatly increase the probability of injury. Thus the plaintiff asserts that the triggering of the silent alarm was not in accordance with the instructions given employees, was not a prudent act, and did not show an exercise of due care for the safety of the customers....
[Under Kansas law, it] is perhaps an aspect of “foreseeability,” not so much that a particular incident may occur, but once one is in progress, when the danger to the customer is evident. Thus under this standard if there is an opportunity to comprehend the danger, negligence can then become a jury question.... The same theory is advanced by the plaintiff in his complaint, that is, that the danger to customers and employees of the store during the course of the robbery was apparent, and that the wrong action was taken — action which served to increase the hazard and which in fact caused the injury. Under this theory of the case, the granting of summary judgment was error.
Note that this is not a case claiming that it was negligent not to hire a security guard, or that the security guard was negligent in reacting too aggressively to the robbers, or even that a store employee was negligent in refusing to hand over the money to the robbers (a highly problematic theory, in my view, but I set it aside here). The theory of liability is simply that it was negligent to trigger a silent alarm that called the police.
Is Cheney Writing a Tell-All Book Criticizing Bush?
Well, maybe not a tell "all," but it sounds like he's planning to say a lot. Via Barton Gellman, on Dick Cheney's forthcoming book about the Bush Administration:
Robert Barnett, who negotiated Cheney's book contract, passed word to potential publishers that the memoir would be packed with news, and Cheney himself has said, without explanation, that "the statute of limitations has expired" on many of his secrets. "When the president made decisions that I didn't agree with, I still supported him and didn't go out and undercut him," Cheney said, according to Stephen Hayes, his authorized biographer. "Now we're talking about after we've left office. I have strong feelings about what happened. . . . And I don't have any reason not to forthrightly express those views."
Of course, if history is any guide, this might just be disinformation spread by Cheney's agents-- in this case to secure a favorable book contract. We'll see.
Various articles, such as this one, accuse conservatives of "paranoia" for thinking that health care "reform" will lead, for example, to Trig Palin being denied medical care. I agree that it's a bit paranoid, but not nearly as irrational as the critics suggest. Eugenics enforced by government dictate once had strong support on the Progressive left, more recently than some might imagine.
Most casual observers probably think that enthusiasm for eugenics disappeared with Naziism, but that's a mistake. Paul Blanshard, for example, a champion of Progressive/liberal Protestantism and an anti-Catholic polemicist, criticized the Catholic Church for its unyielding opposition to coercive eugenics after World War II. In his 1949 bestseller, American Freedom and Catholic Power, Blanshard favorably cited Buck v. Bell and warned of a Catholic plot to, among other things, prohibit sterilization except as "grave punishment" by government for a criminal offense. State eugenics programs continued through the 1970s, which, as in the case of Carrie Buck, did involve innocents being "victimized by elites of various kinds".
When African Americans express paranoia about the origins of the AIDS virus or the crack epidemic, sympathetic liberals explain that this paranoia is understandable given the Tuskegee experiments. Perhaps a little understanding of the paranoia that arises from the history of eugenics in this country would be in order. (And it's not like last Fall you didn't see various modern "progressives" writing some truly awful things about Palin's decision not to abort Trig!)
UPDATE: I'm not arguing that the right's "paranoia" is justified, just that it's "not as irrational" (I'd cross out the word "nearly" if I rewrote the post) as some have made it out to be. If liberals can understand the fallout from the Tuskegee experiment and how it has affected African-American trust of the government with regard to health care, they should be able to understand why religious conservatives--whose intellectual ancestors were the primary, and practically the only, opponents of eugenics during its heyday in the 1920s--might get overly paranoid when modern liberals talk about saving money on health care by making tough choices and so forth.
(Put another way, if liberals would take the time to understand the historical and cultural roots of some of the "paranoid" opposition, instead of just dismissing it as lunacy, they might have better success at addressing it. I'd suggest that liberal readers Google Planned Parenthood racist history to get an idea of how their perceptions of history might diverge rather sharply from religious conservatives'.)
And a historical footnote: Contrary to common belief, the Supreme Court's 1942 opinion in Skinner v. Oklahoma wasn't meant to override Buck v. Bell's endorsement of coercive sterilization, as Justice Douglas's contemperaneous notes reveal, and as he reiterated in this interview in the 1960s ("There was no attempt to limit Buck v. Bell".).
FURTHER UPDATE: By the way, I haven't said so explicitly, but I don't especially share the religious conservatives' concerns, including the less paranoid ones. For example, I don't see anything especially objectionable in this suddenly very controversial article by presidential health advisor and current conservative dart board Ezekiel Emanuel, though of course as a libertarian I'd prefer separation of health care and state.
ADDITIONAL UPDATE: Here's liberal lawprof (and current Defense Department advisor) Rosa Brooks on the Tuskegee experiments:
Let's turn to Wright, the man with all the answers. Here's what he said this week: "Based on the Tuskegee experiment and ... what has happened to Africans in this country, I believe our government is capable of doing anything."
That's not a completely unreasonable perspective. The Tuskegee experiment was a 40-year U.S. Public Health Service study on the effects of untreated syphilis. Who were the lucky human guinea pigs who got to experience untreated syphilis? Poor and mostly illiterate black sharecroppers in Alabama, that's who. They were falsely informed that they had "bad blood," not syphilis, and denied access to the necessary medicine. The study was terminated only in 1972, when an appalled researcher leaked reports to the media.
That could make you a little paranoid. And it's not a form of paranoia Americans can afford to scoff at.
It's true, as a colleague pointed out, that paranoia over the origins of AIDS or the crack epidemic affects a much smaller proportion of the population than paranoia over potential eugenic government death committees. On the other hand, the idea that the government may ultimately try to save money by prohibiting care, e.g., to people with disabilities, strikes me as several degrees less crazy than the idea that the government purposely infected African American men with AIDS.
I also wanted to add that I'm not unsympathetic to the idea that government-provided health benefits may be limited based on utilitarian considerations, so long as the government doesn't ban individuals from buying additional coverage. But I don't think that dismissing the concerns of religious conservatives, or for that matter disability rights activists, about the potential ramifications of such decisionmaking, including whether the private option will remain available in the long term, as complete lunacy will likely help us get there.
Satire in the "Questions Presented" Section of Appellate Briefs
is probably best avoided. From Newman v. Commowealth, 2009 WL 2431289 (Va. Ct. App. Aug. 11):
[One of appellant's "questions presented" was:]
4. Is it a violation of the Establishment Clause of the First Amendment to the Constitution of the United States when the manufacturer of the equipment used to test breath in driving under the influence cases refuses to divulge to any state or Federal agency, to any court, to any defendant, to any prosecutor or to any trier of fact the information programmed into the equipment and which controls the operation of and the results obtained from the equipment[?] Is it a further violation of law that the Commonwealth requires the courts, the prosecution, the defense and the triers of fact to take on faith alone that the information programmed into these machines is correct?
[Footnote:] At oral argument, appellant's counsel informed the Court that appellant's "question presented" concerning the Establishment Clause of the First Amendment to the United States Constitution was "satirical" in nature. Rule 3.1 of the Rules of Professional Conduct states, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."
My guess is that the "satirical" question did not improve the appellant's chances.
I hope Judaism is charging "defending the human rights of all" a good rent:
From a letter by Nancy Rubin, former U.S. ambassador to the U.N. Human Rights Commission, praising President Obama's controversial decision to award Mary Robinson the Presidential Medal of Freedom: "As a Jewish American who affirms that defending the human rights of all is a basic tenant of my faith, I wholeheartedly endorse your recognition of Mary Robinson for the narrative of her life."
Readers who have read this post chain can probably guess what this term means. Or maybe it's just this person. (Should I feel bad if this post knocks her off the top of the Google results list?) Or see this.
MH is a Muslim woman who immigrated to the United States from Somalia in 1994, and wears a headscarf. On September 12, 2006, MH was driving on a four-lane road in Rochester to her place of employment when she noticed a blue van following extremely close. According to MH, the van was virtually on her bumper and continued to follow her just as closely after two turns and numerous opportunities to pass.
MH testified that when she made a left turn into her workplace parking lot, the van had to wait for oncoming traffic before turning to follow her. Then the van continued to follow MH into the parking lot. MH quickly parked and rushed toward the building. The driver of the van, later identified as appellant, pulled up to the entrance of the building and rolled down her window. MH further testified that the driver assumed that she was Muslim, confronted her about Islamic terrorism and her Islamic religious beliefs, and told MH that she felt like killing her.
Appellant [Patricia Josephine Stockwell']s testimony provided a different version of events. Appellant acknowledged that she was driving a van on September 12, 2006, to pick up her son from driving school, which was located across the street from MH's workplace. Appellant testified that she was parked at the driving school when she observed MH walking from her car to her workplace door. Appellant testified that she noticed MH because of her headscarf. According to appellant, she drove across the street and into the parking lot to speak with MH. Appellant testified that she did not intend to cause appellant any fear, but stated that she had strong feelings about radical Islam and wished to share a message with other people about radical Islam. Appellant denied following MH or being angry.
At trial, appellant admitted that she was not truthful when she initially told the police that she had never confronted a Muslim woman and had never been in the parking lot of the building where MH worked.
A jury found appellant guilty of one count of felony stalking under Minn. Stat. § 609.749, subds. 2(a)(2), 3(a)(1) (2006), and acquitted her of harassment and disorderly conduct. The district court granted appellant‟s request for a downward durational departure and imposed a 365-day sentence, stayed for two years. ....
[The] conviction for stalking was based on appellant's driving conduct and not her words in the parking lot. What was said to appellant in the parking lot was not relevant to the conviction other than to enhance the conviction [to a felony] on the grounds that appellant followed and pursued MH because of MH's religion....
While a person can be convicted for a single act of stalking under the stalking-harassment provision of the Minnesota statute, [the statute] requires an element of intent because the statute requires that a person be harassing someone by following them.... [T]o harass “means to engage in intentional conduct which: (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim.” Minn. Stat. § 609.749, subd. 1 (emphasis added)....
Here, appellant's conduct of aggressively pursuing MH in a vehicle for several blocks clearly falls within the statute's prohibitions....
I should note that the case struck me as noteworthy because the "conviction for stalking was based on appellant's driving conduct and not her words in the parking lot" (presumably since the words were the subject of the harassment and disorderly charges on which Stockwell was acquitted). Had the jury convicted her of making a death threat (based on the allegation that Stockwell "told MH that she felt like killing her"), treating the crime as a felony would have seemed to me much more sensible.
Yesterday, I ran across this bit of legalese for the first time, so I thought I'd note it -- it's Law French for "next friend," which is to say (to quote Black's), someone "who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff ...." The phrase, I'm pleased to say, is used only about 0.5% times as often as "next friend," but that still includes 20 cases (found via a Westlaw ALLCASES search) since 2005. So don't use it, but know it.
By the way, the phrase isn't French-by-way-of-Louisiana, but rather apparently French-by-way-of-1066 (or in any event by way of French influence on early English law). Of the 20 recent references, 3 were from Maryland, 6 from Connecticut, and 7 from Hawaii. It's also occasionally spelled "Prochein Amy" or "Prochain Amy."
Special bonus opaque legalism, which is noted in the question posed below: Some courts in New England states use the phrase "ppa" in case captions; this means "per prochein ami," or "by next friend." It's commonplace in Connecticut, not uncommon in Massachusetts, and seen occasionally in neighboring states.
If you want huge law geek bonus points, answer this question, without looking it up or having studied or practiced in New England which is where the phrase seems to be used: What does "PPA" mean in a case caption (when it doesn't mean "phenylpropanolamine," the subject of a spate of recent litigation)?
Rejection of Saudi Arabia as an Alternate Forum for Resolving a Dispute:
I've blogged before about (1) American courts' occasional willingness to enforce Sharia law when they enforce foreign law (such as Saudi law) — just as they enforce the law of other countries — and about (2) the general propriety of courts' enforcing the judgments of Sharia arbitration panels, when the parties had contractually agreed to have a dispute settled through such arbitration.
But I thought it would also be helpful, as a counterpoint, to quote this case I just ran across, which deals with (3) when American courts should decline to hear a case because the proper forum is a foreign country that applies Sharia law. The case, Rhodes v. ITT Sheraton Corp., 9 Mass. L. Rptr. 355 (Mass. Super. Ct. 1999) [UPDATE: Note that the Lexis version of the case is garbled in one important place], is from 10 years ago, but I've seen very few references to it, so I expect it will be new to most readers:
Plaintiff is a British citizen and resident of Great Britain. While on summer break from her university in 1994, she visited her parents at their home in Jeddah, Saudi Arabia. On August 23, 1994, she and her sister met two of their friends at the Red Sea Beach Resort, which is part of the Sheraton Jeddah Hotel and Villas (Jeddah Sheraton) [operated and managed by a wholly owned subsidiary of ITT Sheraton]. The resort complex on that date encompassed a beach, a large concrete wharf, a wooden platform or jetty and a lagoon. Coral stretched out from under the jetty and around the edge of the lagoon. Plaintiff struck her head on this coral when she dove into the lagoon from the jetty. She lay in the water, face down and unable to move, until she was pulled out and taken to a nearby hospital.
Plaintiff sustained a high level spinal injury as a result of her dive.... Today, plaintiff ... cannot move her left arm or either of her legs and is limited to minimal movement of her right arm.... Plaintiff’s expert estimates that her medical expenses resulting from the accident will exceed ten million dollars.
Under Mass. Gen. Laws. c. 223A, § 5, I may dismiss or stay an action upon finding “that in the interest of substantial justice the action should be heard in another forum.” Massachusetts courts have incorporated into the state forum non conveniens analysis standards and principles enunciated in federal cases discussing the federal common law doctrine.... First, I must consider whether an adequate alternative forum is available. If an adequate alternative forum does exist, I then must determine whether private and public interests strongly favor litigating the claim in that forum....
Defendants cite federal cases granting motions to dismiss on forum non conveniens grounds when the alternative forum was Saudi Arabia. Implicit in these decisions is an acceptance of Saudi Arabia as an adequate alternative forum. None of the cases, however, addressed concerns similar to those raised by plaintiff. See, e.g., Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir.1989) (parties previously agreed to bring all disputes before Saudi tribunal and nothing indicated that Saudi forum would treat plaintiff unfairly); Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 801 (7th Cir.1997) (male plaintiff was citizen of Saudi Arabia); Shields v. Mi Ryung Constr. Co., 508 F.Supp. 891, 896 (S.D.N.Y.1981) (plaintiff attempted to “cast aspersions” upon Saudi legal system without any supporting evidence); Tisdale v. Shell Oil Co., 723 F.Supp. 653, 654-655, 659 (M.D.Ala.1987) (in absence of undue influence, unequal bargaining or evidence that Saudi law is inadequate, choice of forum clause requiring that all disputes be referred to Saudi Labor Commission is enforceable); Jeha v. Arabian Am. Oil Co., 751 F.Supp. 122, 125-126 (S.D.Tex.1990), aff’d, 936 F.2d 569 (5th Cir.1991) (plaintiffs offered no evidence that Saudi forum was inadequate). Although my finding regarding the private and public interests in this case renders a final determination as to the adequacy of a Saudi forum unnecessary, I note that plaintiff would face significant procedural disadvantages in Saudi Arabia.
The first significant drawback to trial of this case in Saudi Arabia is that plaintiff would not be permitted to testify. All parties are presumed to be prejudiced in favor of themselves and therefore are not considered to be reliable witnesses. Plaintiff could submit written assertions that would be made part of the record. If a defendant were to deny any assertion made by plaintiff, however, she would be forced to prove that assertion by other means.
Plaintiff’s ability to prove her allegations would also be limited by the fact that Saudi courts give more weight to oral testimony than written testimony. Thus, defendants’ oral testimony that they took certain safety precautions would carry more weight than any documents plaintiff could submit to rebut their testimony. [Footnote: The lack of pretrial discovery procedures in Saudi Arabia would stymie plaintiff’s ability to offer such documents. Although according to defense expert Frank E. Vogel parties may request that the court demand any necessary documents from another party, the court need not exercise its wide discretion in her favor.] Prevailing in Saudi Arabia would be even more difficult for plaintiff in light of the requirement that, “[i]n financial matters, a party must produce two male witnesses or one male and two female witnesses in order to prove a point.”
Another disadvantage to a Saudi forum is that Saudi courts do not follow any uniform rules of procedure. Every party to a case, “sitting and facing the qadi (the judge), conversationally presents its evidence which the qadi hears and weighs.” Id. Cross-examination is limited, if allowed at all. The qadi decides when enough evidence has been heard and at that point announces a decision in open court. Saudi Arabia does not offer parties the opportunity to be heard by a jury.
In addition to no rules of civil procedure, no system of binding judicial precedent or case law exists in Saudi Arabia. Plaintiff would not be able to predict or expect any particular rulings on issues of law that are established in Massachusetts. That this and the other procedural differences would apply equally to the defendants does not minimize that fact that a Saudi forum would deprive plaintiff of basic procedures which she expects to enjoy in a Massachusetts forum.
Finally, the existence of biases against women and non-Muslims in Saudi Arabia would impose additional disadvantages on plaintiff. Defendants’ expert attributes the differential treatment based on gender and religion to “long-standing, well-known provisions in the law.” Although defendants promise to ensure that any recovery by plaintiff in a Saudi court would not be diminished because of her gender and religion, their guarantee cannot insulate plaintiff entirely from the systemic prejudices....
Even if the cumulative effect of the factors discussed above were not enough to deem Saudi Arabia an inadequate alternative forum, dismissal still would be improper if private and public interests weigh in favor of trial in Massachusetts. [The court then explained why it concluded the interests do so weigh; two important reasons were that “this is the corporate defendants’ home forum” and “defendants' alleged negligence occurred at least in part in Massachusetts.” -EV] ...
At this stage, when the parties have not had an opportunity to submit briefs on choice of law, it is unclear what substantive law governs. [Note that the question of which law applies (the choice of law question) is separate from the question of where the case should be tried (the forum question), though one factor in favor of deciding a forum non conveniens motion is indeed a slight preference for the forum the law of which would apply. -EV] Defendants assume that Saudi Arabian tort law is applicable based on Massachusetts choice of law principles. These principles do not clearly point to Saudi law; several factors appear to favor Massachusetts law. Even if Saudi law were to apply, application of a foreign law, while not ideal, need not be a determinative factor in the forum non conveniens analysis.
[Footnotes merged and moved:] Plaintiff ... would be disadvantaged if Saudi substantive law were to govern this case .... For example, the better rule of law in a tort case probably would be that of Massachusetts. Saudi tort law is “subsumed under private actions and do[es] not exist as a distinct and highly developed field of law.” Given the theory of liability in this case, it also is significant that Saudi law does not recognize agency within the concept of torts; [the ]general Islamic philosophy is that one is always responsible for one’s own acts. Moreover, consequential, indirect, and speculative damages generally are viewed as nonrecoverable through a Saudi court. If she establishes defendants’ liability, plaintiff could only expect to recover actual medical expenses and a fraction of her “diyah,” which is a fixed amount of compensation for personal injury.
CBS News has dug up some video of Rep. Dan Rostenkowski being chased down the street by a crowd of angry seniors. This event took place twenty years ago next Monday -- August 17, 1989.
Here's Rostenkowski starting at 1:35 in the video:
Rostenkowski: I don't think they understand what the government's trying to do for them.
Reporter: Do you sympathize with their anger on this?
Rostenkowski: No, I don't think they understand what's going on.
As this book makes clear, Rostenkowski was comfortably within the mainstream of Congresssional and elite media opinion in dismissing the objections of his constituents as uninformed, ill-founded, or rabble-rousing. But, the day had long-term consequences. As the New York Times observed in a 2002 article, "the television images of Mr. Rostenkowski under assault struck fear in the hearts of politicians that remains to this day. Few want to be pitted against older people on issues involving Medicare. ‘Politicians were traumatized by the Rostenkowski episode and they remain traumatized,’ said Henry J. Aaron, a senior fellow at the Brookings Institution.”
Today's Wall Street Journal has a nice short piece juxtaposing the reaction to swine flu and to antibiotic resistance. It begins as follows:
In March of this year an epidemic of H1N1 influenza virus, otherwise known as swine flu, began in Mexico. It spread to the United States within weeks and has since affected over 100 countries. Between the start of the outbreak and the end of July, a total of 1,154 people worldwide had died of the virus, about one-third of them in the U.S.
The World Health Organization and other public-health agencies have responded to the epidemic with appropriate urgency. International organizations have disseminated information and guidelines and coordinated with public authorities across the globe to ensure an effective response. The pharmaceutical industry is developing antiviral agents and vaccines and producing them on a mass scale.
The U.S. also has responded rapidly and forcefully. Just two weeks after the report of the first case on American soil, President Barack Obama asked Congress to allocate $1.5 billion to fight the virus.
Compare this response to the scant media and political attention that have been given to several silent but no less deadly outbreaks of disease in recent years caused by antibiotic-resistant bacteria. Most such outbreaks are treated as the poor stepsisters of pandemic influenza, even while they have killed far more people than swine flu over the same period.
Per my previous post, I've got a new article on the problem of antimicrobial resistance, which is currently out at the law reviews. One of them rejected it in 5 hours, which is a new record for me. My coauthor and I are debating whether this is an example of market efficiency, rational ignorance, or satisficing.
The previous post was headed "Only Two Things Scare Me." Most commentators got the reference to Austin Powers, but several inquired what the other thing was. I will reveal that after the article is accepted.
Need a Good Name for the Kindle, the Sony Reader, and the Like:
I'm writing the foreword for the forthcoming Michigan Law Review Survey of Books Related to the Law, and I decided to write about how the Kindle and similar products (especially in their foreseeable future generations) are likely to change law books -- textbooks, treatises, other practitioner books, and academic books. I have a bunch of ideas, which I hope to blog about soon. But in the meantime, I'm facing a problem: What term should I use to refer to the hardware?
"Electronic book" and "e-book" have seemingly come to mean the electronic texts. "E-book reader" is the common term, but it strikes me as a bit jarring when used in a discussion of humans as readers (e.g., "Readers will like e-book readers because ..."). "Kindle" refers just to one product, and is likely to lead my readers to think about the limitations of the current product, rather than the foreseeable possibilities of the technology more generally. Any suggestions? I prefer something that will be instantly comprehensible without the need for any special definition. Many thanks!
The grammar seems more troublesome than the mention, without name or likeness, of the President's daughters.
I am open to education or correction, but would not "healthful" (instead of "healthy") lunches for students be the proper usage as well as a worthy goal?
Fortunately, a standard reference source gives the answer. If you go to dictionary.com, you'll see that both the Random House and the American Heritage give "conducive to good health; healthful" as one meaning of "healthy." And as a special bonus, the American Heritage entry is followed by this Usage Note:
The distinction in meaning between healthy ("possessing good health") and healthful ("conducive to good health") was ascribed to the two terms only as late as the 1880s. This distinction, though tenaciously supported by some critics, is belied by citational evidence — healthy has been used to mean "healthful" since the 16th century. Use of healthy in this sense is to be found in the works of many distinguished writers, with this example from John Locke being typical: "Gardening ... and working in wood, are fit and healthy recreations for a man of study or business." Therefore, both healthy and healthful are correct in these contexts: a healthy climate, a healthful climate; a healthful diet, a healthy diet.
Of course, if one follows the Horace Google principle, one can see why it is the poster writers said "healthy" instead of "healthful": "Healthy lunch" yields over 100 times more Google hits than "healthful lunch" does. Sticking with the most common usage is generally better for advertising, I think, because the less common usage seems likelier to distract the reader from the substance. (There are of course exceptions, for instance if the advertisers want to stand out through their unusual word choice, or if the more common usage is intensely objected to by a substantial minority of readers and the less common usage is not intensely objected to by a majority. But I take it that here they were just following the norm, deliberately or otherwise; and the commenter's objection is a pretty rare one, as the extremely lopsided usage data shows.)
But in any event, the moral of the story: Before you make a claim of usage error, or even usage "troublesome[ness]" (by the way, the issue here is not "grammar," but usage, since both "healthy" and "healthful" are adjectives), look it up.
The girl, who turned 17 on Monday, is at the center of a custody dispute in Orlando, where she sought help from a family she barely knew — a pastor and his wife [the Lorenzes] willing to take in a teen who feared her own [Muslim] family's retribution because she converted to Christianity....
The girl appeared before a crowded courtroom full of lawyers and spectators on Monday when an Orange Circuit Court Judge ordered her into Department of Children and Families emergency custody....
Her dispute with her family became news several weeks ago when the girl ran away from her home in Columbus, Ohio.... The teen told the Lorenzes she feared her family would hurt her, kill her or send her back to Sri Lanka, Beverly Lorenz said....
Reached by a Sentinel reporter by phone, the girl's mother said little. "Yes, of course" her daughter would be safe should a judge eventually order her back there, she said.
And her father would not harm his daughter if she wanted to be a Christian, the woman said....
An attorney representing the girl's mother said the parents were allowing Bary to explore her Christianity. The parents claimed that their daughter was not afraid until she made contact with Pastor Blake Lorenz in Orlando....
It seems to me the law is clear: If a judge finds that there is real danger of serious violence from the parents — whether stemming from religious tensions or anything else — then the minor may indeed be placed into state custody and from there into a foster home. Naturally a judge can't just presume this based on generalizations about Islamic attitudes towards apostasy: There would have to be credible evidence of specific threats, or actual instances of physical abuse, and the judge would presumably listen to the child, the parents, and any other witnesses, and decide, difficult as the she said/they said factual question might be.
San Juan, PR:
I'm going to be in San Juan, Puerto Rico, over the next few days giving CLE lectures on Fourth Amendment law hosted by the United States District Court for the District of Puerto Rico for members of the federal court bar. If any VC readers are planning to attend, please say hello. And if anyone has particularly good ideas for what to do during an afternoon free in San Juan, please let me know in the comment thread.
I've put together a set of 60 powerpoint slides for the 3.5 hour set of lectures; the slides provide a general overview of Fourth Amendment law. If the lectures go well I plan to tinker with the slides a bit and then post them online for interested readers.
A couple days ago, I went out to dinner with a group of Japanese law professors here in Tokyo. One of the Japanese academics, who today is generally libertarian, told me that he had previously been a Marxist. I asked him what led him to change his mind. To my surprise, he said that it was a result of reading Isaac Deutscher's books on Leon Trotsky. Deutscher was a Western Trotskyite who wrote a famous three-volume biography of Trotsky seeking to prove that Stalin had taken Soviet communism in the wrong direction, but that things would have gone much better if only Trotsky had won the power struggle between them in the late 1920s. The Japanese professor, however, deduced that Deutscher's critique of Stalin was applicable to communism more generally, not just the Stalinist variant. Thus, he quickly moved from Trotskyism towards giving up Marxism entirely.
Upon reflection, maybe I shouldn't have been surprised that Trotskyism played such a role in his transition away from Marxism. Trotskyism was also a way-station for many Western intellectuals who became dissatisfied with the Soviet Union in the 1930s and 40s, but wanted to cling to communism. Eventually, many of them gave up communism entirely (Irving Kristol is a particularly famous American example). It would seem that at least some Asian intellectuals followed a similar path. In this very limited sense, Trotskyism had a positive impact on the world.
On balance, however, I still don't understand the fondness for Trotsky shared by many Western leftists (and even a few formerly leftist conservatives I have met). The truth about Trotsky is that he was a brutal mass murderer. Trotsky was responsible for the deaths of hundreds of thousands of innocent people during the era of War Communism (1918-22 [corection: 1918-21]). Together with Lenin, he (not Stalin) established the Gulag system, the secret police, and other major institutions of Soviet repression. Trotsky also played a leading role in engineering the first, abortive collectivization of Soviet agriculture - which led to a deliberately engineered famine that killed several million people in 1920-21. Richard Pipes' book Russia Under the Bolshevik Regime has a good discussion of Trotsky's role in these and other early Soviet atrocities.
As bad as Stalin was, it's possible that Russia and world would have been even worse off had Trotsky defeated him in the late 1920s. After all, Trotsky broke with Stalin in the 1920s in large part because he thought Stalin wasn't going far enough in repressing "bourgeois elements," collectivizing agriculture (which eventually led to an even bigger deliberately engineered famine in the early 1930s), and promoting communist revolution abroad. In exile in the 1930s, Trotsky argued that the Soviet Union should not ally with the western democracies against the Nazis because both were "capitalist" powers, and neither was preferable to the other. Had Trotsky won, life would have been better than under Stalin for members of the Communist Party; Trotsky was less interested in purging the party comrades. But it might have been even worse for everyone else.
Western admirers of Trotsky often praise him for his criticism of Stalin's purges of the 1930s. However, as Leszek Kolakowski points out in the chapter on Trotsky in his comprehensive history of Marxism, Trotsky had no objection to political repression as such. He was very much in favor of ruthless persecution of non-communists, including even non-communist socialists. Trotsky merely objected to the repression of his own followers. Praising Trotsky for opposing Stalin's purges is a bit like praising the Ku Klux Klan as champions of free speech because they oppose laws banning racist hate speech. Obviously, The Klan would have no objection to censorship if they could be the censors themselves. The same point applies to Trotsky - except that he murdered, repressed, and censored far more people than the KKK ever did.
"White House Objects to Poster That Invokes Obama Children":
Here's the poster:
According to The Washington Post, "the White House asked the Physicians Committee for Responsible Medicine to take down the ads, which feature Jasmine Messiah, a vegetarian who attends a Miami-Dade County public school that, she says, offers no vegetarian or vegan lunch options." According to the president of the Physicians Committee, the White House Counsel's office "made it clear that they viewed this as something that could lead to legal action if I wasn't responsive. But that was an implication."
It's hard to evaluate the White House Counsel's office statements based on such a paraphrase, but if they did suggest that the reference to the President's daughters was legally actionable, they were wrong. The so-called "right of publicity" may go further than I'd like, but even it doesn't go that far, especially in the context of a noncommercial poster that references someone in the course of making a political point.
Such speech is protected by the First Amendment, and in any event not an infringement of the right of publicity in the first place. See, e.g., Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 592 (D.D.C. 1985); Berkos v. NBC, Inc., 515 N.E.2d 668 (Ill. Ct. App. 1987); 765 Ill. Comp. Stat. 1075/1 et seq.. That the names aren't used is not itself dispositive, but the noncommercial nature and the fact that it involves something more than just selling a copy of someone's name or likeness should be dispositive.)
Of course, if the people from the Counsel's office simply relayed a request on behalf of the President, asking the Committee to do what they argued was the morally right thing and not really threatening legal action, that's a different story. I'm not sure why that should come, though, from the Counsel's office; but maybe the Counsel's office has historically had a broad mandate in such matters.
Still, even if the claim is that the Committee is doing something unethical or in bad taste, I don't see how that would be so. They aren't saying anything offensive or demeaning about the girls. They aren't faulting the girls for anything they've done. They're not, I think, putting them in a position where they might be deeply embarrassed if they see the ad, or if a friend asks them about it.
In fact, the ad isn't about anything the girls did — it's about what their relatively well-to-do parents are able to provide them, and what the Committee says the government should provide to all children (a position, incidentally, that I don't share on the merits). I don't see anything tasteless or ethically improper in commenting on public affairs, and in part on the options that the President has, by mentioning in this way the privileges that the President's children enjoy.
This Court also has concern regarding Father's decision-making in allowing [son] to watch certain R-rated movies. While Gladiator may not be such a poor decision, clearly a movie that has sexual content would be. Mother testified that [son] was allowed to see the movie American Pie which has sexual content.
The son was 14 at the time of the court decision; I suppose he might have been a year or maybe even two younger at the time of the movie watching, but the court's discussion suggests to me that it's talking about the son roughly at the age he is at the time of the hearing, rather than when he was many years younger.
As I've suggested before, it seems to me that courts ought not make such child custody decisions based on the parents' exercise of their First Amendment rights, which include letting their children watch or read various materials. Perhaps the rule might be different as to hard-core pornography, but American Pie, whatever its merits or demerits, surely doesn't qualify as that. Likewise, there is much more of an argument for considering even speech (or exposure to First-Amendment-protected materials) when there's serious evidence that the speech is likely to cause imminent harm to the child. But again, that's a very hard case to make about American Pie.
In any case, I've written much more about this before, but I just thought I'd pass along this one extra data point.
The first two questioners and questions at President Obama's Townhall today in New Hampshire:
Peter Schmidt (one of the most liberal members NH State House): After praising Obama for bipartisanship, Schmidt asks: “If the Republicans actively refuse to participate in a reasonable way with reasonable proposals, isn’t time to just say, we’re going to pass what the American people need and what they want, without the Republicans?”
Julia Hall, teenager from Massachusetts: “As I was walking in, I saw a lot of signs outside saying mean things about reform in health care. How do kids know what is true and why do people want a new system that can help . . . more of us?”
The crowd is obviously stacked in Obama's favor, which is, of course, not surprising.
UPDATE: The channel I was watching covered only the first two questions and answers. I caught the last question on another channel: Obama did a rhetorically effective job of answering a polite but opposing question about forcing members of Congress to adopt any public option.
With thanks to the Administrative Office of the North Carolina courts, and to Stephanie Plotin of the UCLA Law Library, I can report some data on alienation of affections lawsuits in North Carolina: In fiscal years 2000-2007, there were an average of 230 such filings per year -- a bit over 0.5% of the number of all divorces, but about twice the number of product liability lawsuits, and about three-quarters of the number of wrongful death lawsuits.
Unfortunately, the table doesn't have separate categories for other torts, so I can't compare to, say, slander lawsuits and the like. The Administrative Office also stresses that this is an unverified, preliminary report; and one can certainly see how the data might be skewed in various ways, though likely in the direction of underreporting (for instance, lumping it under the general category of "intentional torts") rather than overreporting.
"Supreme Court Argument Cycle Dominated by Veterans":
Marcia Coyle of the National Law Journal has the scoop.
I wonder how (if at all) the picture changes if you focus on who wrote the briefs rather than who stood at the podium for oral argument. The media invariably focuses on who gave the argument, but most of the important work is done at the briefing stage. Of course, if there are lots of names on a brief, it's hard to tell who actually did the bulk of the work; focusing on who had the argument is much easier.
NYT on Nesson:
In today's New York Times, John Schwartz has an interesting article on Charlie Nesson's performance in the Tenenbaum trial.
Reading over the trial reports, I'm struck by how similar Nesson's approach was to how he taught "Introduction to Lawyering" (ITL) in the fall of 1994, in my 1L year at Harvard. The ITL class was supposed to be about introductory legal writing and research. Nesson instead focused on how he thought the Internet would change everything; whether cameras should be allowed in courtrooms for high-profile cases; and his fascination with the neckercube. I very much liked Nesson as a person. He was passionate and unfailingly kind, something that couldn't be said for many other Harvard professors. But most of the students became pretty frustrated, as Nesson's lectures didn't have much to do with legal research and writing.
AutoBlog reports that Motors Liquidation Co., the entity that assumed GM's liabilities and unwanted assets in the automaker's bankruptcy proceedings, assumed GM's polluted sites, but does not have the money to pay for cleanup.
Before bankruptcy, GM estimated it had $1.9 billion in environmental issues and litigation liabilites. Motors Liquidation Co., though, has only about $1.2 billion to manage the entire wind-down of its affairs -- and as one might expect, attorneys handling the matter are expected to get a huge chunk of that. The figure to clean up sites in places like Buick City, Michigan and Massena, New York has been pegged at $530 million. However, the way it's looking, there won't be anywhere near that much money to get the job done.
General Motors claims its new Chevrolet Volt plug-in hybrid will get a whopping 230 miles per gallon in city driving, over four times more than the current leader, the Toyota Prius. GM readily admits that the Volt will not perform as well in highway driving, when the vehicle will rely more on its engine on such trips, so its overall mpg will be lower, but it could still be the first vehicle to obtain triple-digit mileage numbers.
A car with triple-digit mpg? What's not to like? Even with tax credits, many will find the cost to be a bit high. When the Volt appears in showrooms next year, it will sell for for approximately $40,000. In addition, there are still questions about battery life and range. 230 mpg in the city won't be much to shout about if the vehicle can't travel that far on a single charge. Nonetheless, the Volt does appear to be a significant breakthrough in vehicle technology.
Policy Arguments Generally, and in Torts Cases in Particular:
I thought I'd blog one more excerpt form my Torts syllabus; parts of it are focused on torts specifically, but I suspect that much the same can be said about policy arguments in most legal fields. As always, I'd love to hear suggestions for improvement, but recall that the goal of this passage is to give students an idea about the role of policy arguments in the law, and about how one can more effectively construct such arguments. The passage is not aimed at defending or criticizing particular tort law rules, or even particular classes of policy arguments.
* * *
Throughout the class you’ll be asked to make policy arguments -- arguments about the way the law should be, not just about the way it is. And in fact tort lawyers often make such arguments in court, for several reasons:
1. Tort law is judge-made law, adopted by judges who -- deliberately or unconsciously -- accepted certain arguments about the way it ought to be. And in tort law (as opposed to much of criminal law, evidence law, and civil procedure), the judicial development continues. Courts are generally free to adopt new theories, or even overrule old ones.
2. As you’ll see throughout the semester, some states adopt one approach to certain legal questions, others adopt another, and still others haven’t yet adopted any. Thus, for instance, different states take different views of the right to stop appropriation of name or likeness. Courts considering the question for the first time in their state need to choose one or another approach. And even courts that have chosen one might be persuaded to choose the other. This choice necessarily involves policy judgment.
3. Even the settled legal rules, as you’ll see, often have less settled aspects, on which there might be no precedent in your jurisdiction. There too policy arguments can help courts decide how to resolve the matter.
4. As I noted in the discussion of analogizing and distinguishing cases, whether cases are “similar” or “different” often depends on policy considerations. For instance, for most legal rules I take it we’d say that white cars and black cars are “similar,” but white cars and white trucks may be “different.” But those aren’t judgments of physics; color differences are real differences. Rather, they are judgments that for nearly all the policies that the law cares about, the size of a car might matter (e.g., because its weight damages the road more, or because its height might not fit under bridges, or because its fuel consumption can cause environmental problems) but the color would not.
On the other hand, if there is a difference between white cars and black cars that’s relevant to some policy of tort law -- for instance, if white cars were much easier to see at night than black cars and thus were less likely to be involved in accidents -- then we might consider white cars and black cars importantly “different.”
So how does one make an effective policy argument? A few thoughts:
1. The best policy arguments are generally ones that go beyond the abstract, and tie the abstract arguments to concrete realities of how people act (and how the law operates). Say, for instance, that you are arguing about when newspapers should be held liable for publishing articles about political officials that make false claims and that hurt the official’s reputation as a result. You could argue that “people should be liable for the harm they cause,” or “the freedom of the press means that the press can’t be held liable for criticizing the government.” And it’s possible that these high-level abstractions will persuade some of your listeners.
But others will be skeptical about each of these generalities. Often we don’t hold people liable for certain kinds of harm that they cause. And sometimes we do hold the press liable for its statements, even if the statements criticize the government. It’s certainly not obvious that the freedom of the press should include complete immunity from all liability. As Justice Holmes put it, “General propositions do not decide concrete cases.”
So to make the arguments more persuasive, you need to marry the generalities with more concrete observations about your particular problem. For instance, you might point out that a publisher faced with the risk of liability may decline to publish even true statements, if it’s not sure the statements are true, or if it thinks a jury might wrongly conclude that they’re false. Imposing liability for false and defamatory statements will thus deter socially valuable true statements, and not just the harmful and socially valueless false statements.
Or you might point out that false statements about officials not only hurt the officials, but also mislead voters, and deter some people from running for office. They might even especially deter those people who we most want to serve in office: those who cherish their reputation for honesty and integrity, and who are most likely to be turned off from public life if defamatory falsehoods repeatedly go unpunished.
You might also point out that false statements are routinely punished in other contexts, such as in-court perjury, commercial fraud, and the like. If we trust courts to accurately decide whether an in-court statement (including one about a political official) was a lie, even when a person’s liberty is at stake -- as in a perjury prosecution -- why shouldn’t we trust them equally when all that is at stake is a newspaper’s money?
Naturally, there are counterarguments to these concrete arguments as well as to the abstract ones. If you want a field in which an argument, once correctly made, will persuade all reasonable observers, there are doubtless spots open in Mathematics Ph.D. programs (and I say this as someone whose first great love was mathematics). But the arguments that combine the concrete and the abstract are ones that are more likely to persuade than the abstract arguments alone would be.
2. The best policy arguments consider indirect consequences as well as direct ones: They look beyond how a decision will affect the parties to the case (e.g., causing one party to become poorer and the other richer), and whether it will encourage potential defendants to comply with the legal rule in the future. They also ask how people will react in more complex ways to the risk of liability, what conduct they will substitute for the liability-producing conduct.
Say, for instance, that the question is whether people should be held liable for failing to call 911 when they hear someone being attacked. One should certainly ask whether it’s fair to impose such liability on a particular defendant, and whether such liability will encourage people to call 911 in the future.
But one should also ask about other effects. Say, for instance, that you witness a crime but fail to report it right away; and say that you are then approached by the police who are going door to door looking for witnesses who might help with the investigation. Would the prospect of liability for the initial failure to report discourage you from cooperating with the police? After all, the safest bet for you, once you’ve failed to call 911 when you needed to, is to clam up and pretend that you didn’t witness the crime in the first place.
Likewise, say that the question is whether employers should be held liable for hiring employees with records of criminal violence, if the employee then violently attacks a customer of the employer. Such liability will encourage employers to hire employees who are on balance less likely to attack customers.
But this liability may make it even harder for ex-convicts to find a job after they’re released from prison. This lack of a job might increase the risk that the convict will turn back to crime, and might thus increase the overall rate of violent crime.
Now despite this, liability in such situations might still be a good idea. But to figure out if it’s a good idea -- and, more importantly for lawyers, to figure out the best arguments against it (the defense lawyer’s job), or anticipate the arguments against it in order to rebut them (the plaintiff’s lawyer’s job) -- you need to think about the full range of consequences.
3. The best policy arguments generally combine moral and practical arguments.... [P]eople often debate whether the law should be aimed at efficiency or at justice. But whatever you think is the right answer, your audience (for instance, a multi-member court) will often have mixed views. Some might think the law should be aimed chiefly at one, some at the other, and some (perhaps most) will care about both. So try to reach both, by arguing that your proposal is better along both dimensions.
Also keep in mind that economic arguments are not an antonym to moral arguments. Economic arguments can often be relevant to figuring out how a moral argument applies: For instance, if our moral argument is that “everyone should be free to exclude others from their property, so long as this doesn’t cause unreasonable harm to others,” the question of what is “reasonable” harm may well be informed by economic analysis.
Moreover, economic efficiency itself has a moral dimension: As society gets richer, people on average tend to get more of the things (education, health care, and such) that we may think they morally deserve. Nor is this just true of system-wide economic effects; if, for instance, imposing liability on cities for accidents in public swimming pools leads to closing such pools, poor children will have less opportunity to enjoy the activities that middle-class and rich children (who have access to private swimming pools). That may itself have moral relevance -- though one can of course also argue that it’s morally good for poor children to be protected from dangerous pools by the deterrent effects of liability.
Likewise (though this example isn’t directly relevant here), an economic analysis of whether some policy will cause aggregate social harm or benefit will often be premised on moral judgments about whose interest count: Should you aggregate the harm or benefit to all Americans? To all humans? To all humans, born and unborn? To all primates?
* * *
Now a few words about the specific kinds of policy arguments that we’ll often see in torts cases. People often talk about tort law as being aimed at compensating those who are injured, and deterring future injuries. And that’s true as far as it goes. But let’s get a bit more detailed, and point to some (often interrelated) questions that you might ask yourself with regard to any proposed tort law rule:
A. Questions Focused Immediately on What Has Happened:
1. Does the plaintiff deserve to be compensated? Sometimes the answer seems obviously “yes,” for instance if the plaintiff was hit and injured by a drunk driver. Sometimes it’s less clearly “yes,” for instance if the plaintiff had his past drunk driving conviction revealed to the public, and is now suing for the disclosure of private facts.
2. Does the defendant deserve to pay compensation to the plaintiff? Again, sometimes the answer seems obviously “yes,” for instance if the defendant is the drunk driver who hit the plaintiff. But sometimes it’s less clearly “yes,” or perhaps even clearly “no,” even when the defendant was one of the but-for causes of the plaintiff’s injury (i.e., but for the defendant’s actions, plaintiff would not have been injured) -- for instance, if the plaintiff is suing the company that manufactured the drunk driver’s car, simply because it manufactured the car.
Note, though, that “deserve” here need not mean that the defendant is culpable, only that we think he has incurred an obligation as a result of his action. For instance, one might conclude that a mining company should be strictly liable for all damage that its blasting does to neighboring properties -- because it bears the profit from the mining and should thus also bear the loss -- even though the mining company isn’t morally at fault for blasting.
B. Questions Focused on What Will Happen in Litigation:
3. Are there particular reasons to think this proposed rule will cause problems in actual litigation, such as undue litigation expense, undue intrusion on privacy, or undue risk of error on the part of the judge or jury? Some such expense, intrusion, and risk is inevitable; but sometimes the cost or risk might be so high -- especially compared to the alternatives -- that it’s worth shifting to a different rule. For instance, some argue that no-fault insurance is a better way than negligence liability of dealing with auto accidents, both because it’s cheaper and because many auto accident lawsuits devolve into swearing matches in which it’s very hard to tell who’s telling the truth. Likewise, one argument against “alienation of affections” lawsuits (in which a cheated-on spouse sues the person with whom the other spouse was unfaithful) could be that it’s unusually hard or intrusive to get at the truth of such allegations.
C. Questions Focused on How the Risk of Liability May Change Future Behavior:
4. How would this rule affect behavior by this defendant and similar defendants -- for better and for worse? If a business is told that it will be held liable for injuring people, it’s likely to take precautions that diminish the risk of such injury. These precautions may well be good for society generally.
At the same time, some of these precautions may cause social harm. To return to a classic example given above: If you hold newspapers strictly liable for false and reputation-injurying statements that they publish about people, they might be deterred not just from publishing false (and thus socially harmful) statements but also from publishing true (and thus socially valuable) statements. Your task in evaluating an argument, and in thinking about policy arguments for and against it, is to consider all of its possible effects, good and bad.
5. How would this rule affect behavior by this plaintiff and potential future plaintiffs -- for better and for worse? Might imposing or increasing liability on the defendant diminish potential plaintiffs’ incentives to behave safely, or encourage plaintiffs to fake injuries or exaggerate their extent?
On the other hand, might giving defendants free rein to do something dangerous cause plaintiffs to be more cautious than we want them to be? An example from contract law: If certain kinds of defendants could easily evade their contracts without liability, other people might choose not to do business with those defendants at all, or only do it on a cash-up-front basis. Such caution would be rational from those other people’s perspective, but that would be bad for society as a whole. Assuring potential plaintiffs that they can recover damages if the defendant breaches a contract thus advances social efficiency.
6. How would this rule affect behavior by people other than prospective defendants, again for better and for worse? Rules also affect not just prospective defendants, but others whose behavior will be affected by the prospective defendants’ behavior. That could often be good: For instance, imposing liability on bars for accidents by their customers may prevent misconduct by the customers. Or it could be bad: For instance, as I suggested above, if employers are deterred from hiring ex-felons, then ex-felons might end up unable to get jobs, and thus might end up more likely to turn to a life of crime.
7. Would this rule unduly interfere with defendants’, prospective defendants’, or others’ liberty or privacy? Deterrence of some behavior may be bad not because the behavior is socially useful, but because we think the behavior is an important aspect of political liberty or personal liberty. For instance, if libel law unduly deters even accurate reporting, then that might affect newspapers’ freedom of the press.
And these liberty concerns need not be limited to constitutional rights. For instance, say liability on skydiving companies were imposed on the grounds that skydiving is so dangerous and so lacking in social value that it’s inherently unreasonable to offer such services. (I don’t think that’s the legal rule, but say such a legal rule is proposed.) This might make skydiving so expensive that most people couldn’t afford it, and this would in turn affect their liberty to choose to engage in this risky behavior. Perhaps the intrusion on liberty is justified, for instance on the grounds that people shouldn’t risk their lives in such activities -- but the intrusion has to be recognized, and considered in analyzing the merits of the proposed rule.
Likewise, if parents who are hosting a party for teenagers are held liable for negligence if two teenagers have sex in a bathroom (see Doe v. Jeansonne, 704 So. 2d 1240 (La. Ct. App. 1998)), parents would have to more closely patrol such parties, and check the bathrooms in case they have reason to think something might be amiss. Again, that might be a reasonable privacy cost, given the harms that teenage sex can cause, but we should consider it as a cost.
8. Are there policy choices involved in this rule that we’d feel uncomfortable having made by juries and judges?Or might we prefer that they be made by juries, rather than by legislators? Say a plaintiff who was hit by a 21-year-old drunk driver sues a store for selling alcohol to the 21-year-old. Because 21-year-olds are more dangerous drivers than 25-year-olds (though not as dangerous as 18-year-olds), the plaintiff argues, it’s unreasonable for the store to sell to 21-year-olds, even though there’s no criminal statute prohibiting such sales. The store -- and all other sellers of alcohol -- should (the argument would go) set a cutoff age at 25.
One might object to this proposal on various grounds (and endorse it on various grounds). But one possible objection might be that the tradeoff between liberty and safety involved in setting the drinking age should be made by the elected representatives of the people, and not by judges or juries. On the other hand, some might argue that unelected judges and (more or less) randomly selected juries are better decisionmakers than legislators, who are more likely to be captured by special interests or distracted by other matters on their legislative agenda.
Some Thoughts on How Asylum Claims Based on Fear of Religious Persecution Are Treated,
from someone who has some experience with immigration law:
I want to assure you that immigration judges are well aware of the potential for abusing asylum by making sham conversions. However, it is not the IJ's job to marshal evidence of a true religious conviction. As in the Article III courts, the IJs are there to provide a neutral venue for determining an alien's removability and any possible relief from removability under immigration laws.
The IJs have a bit more leeway than Article III judges when it comes to addressing respondents and witnesses, but it is ultimately the respondent's to demonstrate religious conviction--the burden is on the alien to establish eligibility for relief. Then, the DHS trial attorney [TA] may present evidence--including by cross-examining the respondent--demonstrating that the respondent does not sincerely hold the claimed religious beliefs.
Some standard questions asked by TAs to establish Christian bonafides:
Who is Jesus Christ?
What is your favorite story from the Bible?
What is your favorite prayer? Can you recite that prayer or a part of that prayer?
These seem like rather basic questions, but it is astounding how often Christian claimants cannot answer them. It is also fairly easy to spot the respondents who have been coached since they know one and only one story from the Bible, which is inevitably short-handed as: "water to wine." This is a reference to Jesus' first public miracle at a wedding in Cana and is considered an anti-Shibboleth by TAs and many IJs. Most frequently, Chinese applicants can name only this Bible story, as a result of being coached by the smugglers they use to enter the United States. Similarly, applicants who have been coached will say "the Lord's Prayer" is their favorite, and then recite some variation of the traditional Catholic grace before a meal (i.e. not the Lord's Prayer). The smugglers abroad and "immigration consultants" here in the United States are not very imaginative and have no real interest in their victims, so these responses do not change that often.
If the respondent satisfactorily answers these questions, the TA may then escalate to more complex questions of Christian theology. That is a matter of individual discretion, however. Often, you can get a pretty good idea as to the sincerity of the respondent's religious conviction with just those few questions. (Additionally, the TAs deal with many religions on a regular basis, not just Christianity. I suspect--without knowing, mind you--that they have a list of questions and answers prepared for the most common religions. They also prepare in advance of proceedings for this type of inquiry.)
You are right to point out that a person can know the theology of a religion, its practice, and its procedure without genuinely having religious conviction. As with many areas of law, we cannot actually know a person's state of mind, thoughts, and beliefs. However, a person's knowledge and behavior can be a good indication of same. Typically, an applicant for asylum making a religious claim will provide three types of evidence of belief: his testimony, the testimony of others who worship with him or see him at worship or know of his long-standing belief, and documentary evidence like baptismal certificates, photographs from religious ceremonies, etc. All three types are open to inspection and attack by the TA.
Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.
To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.
The article goes to a lot of important issues of how personal preferences influence legal interpretation. Interesting stuff. (Hat tip: Larry Solum)
Antibiotic resistance is a major public health problem. Every year, two million Americans acquire bacterial infections in the hospital, and 70% of those infections are resistant to at least one antibiotic. MRSA (methicillin-resistant Staph aureus) has attracted the most media attention: the CDC estimated that MRSA caused 94,000 life-threatening infections, and 18,650 deaths in 2005.
Congress and many states are currently debating legislation to reduce antibiotic resistance. The article blends regulatory theory and comparative institutional analysis to explain how we can use regulation to lower the risk of antibiotic-resistant bacterial infection, rationalize the use of existing antibiotics, and encourage innovation. We canvass the full range of regulatory options that are available, and explain the compatibility or incompatibility of particular regulatory strategies with existing legal and regulatory systems.
Here’s the abstract of the article:
Amnesia is a common, important, but rarely noted side effect of antibiotics. Apart from medical historians, few recall the severe morbidity and mortality once associated with acute bacterial infection. However, decades of antibiotic overuse and misuse have compromised the long-term availability and efficacy of these life-saving therapies. If designed and implemented appropriately, regulation can reduce the risk of bacterial infection, reserve antibiotics for circumstances where they are necessary, and rationalize the use of the most powerful agents. Regulation of antibiotic resistance can be justified, and should be guided, by both efficiency and fairness. A range of regulatory options are available - some information-based, some incentive-based, some command-and-control - each of which has indications, strengths, and weaknesses. A desired set of regulatory strategies must then be matched with the appropriate legal and regulatory institutions. A renewed focus on regulatory and institutional design has significant potential to reduce antibiotic-resistant bacterial infections and increase the effective life of existing and new antibiotics.
Reader Poll: Did 9/11 "Change Everything"?
Back around 2002 to 2003, it was common for people to debating the role of government in the national security area to say that "9/11 changes everything." The idea was that the attacks of 9/11/01 had so substantially changed our sense of the terrorist threat — or at least should have — that it called for a new set of responses to traditional problems in the area of national security. Of course, this was a hotly contested idea: Some people believed that 9/11 changed everything, and others strongly disagreed. But it was a common phrase that was frequently invoked in debates over privacy and security.
I'm curious to know if VC readers agree or disagree with this statement today, almost 8 years after the 9/11 attacks. Here's a reader poll on the question that asks if you agree or disagree, how strongly, and where you generally fall on the political spectrum.
In my Torts syllabus, I also included these paragraphs on analogizing and distinguishing cases. Though they are in many respects pretty obvious, my sense is that sometimes it's helpful to walk through even the obvious things, especially to students who are likely feeling nervous and inadequately informed about what they're supposed to do. And of course if any of you can contribute some ideas I can add to this to make it less obvious, I'd be very pleased to see them.
* * *
As I mentioned, analogizing and distinguishing cases is an important skill. Its basics are pretty intuitive, but let me offer this simple framework:
A. To distinguish cases, you need to (1) identify the differences between the cases, and (2) explain why the differences should be legally significant. The explanations called for in step 2 are often based on (3) particular policy arguments that point in different directions for the two cases and (4) analogies to other legal rules in which a similar distinction is drawn.
For instance, say that a precedent concludes that it can’t be a tortious disclosure of private facts to publish accurate information (for instance, a person’s criminal record) that one has gotten from government records (for instance, court documents). And say that you want to argue that it is a tortious invasion of privacy to publish accurate information about a person’s past misdeeds if one gets the information from witnesses to the misdeed. (Perhaps the misdeed never led to a prosecution.)
You need to point to the difference between the cases -- the precedent involved court records and the new case doesn’t. But you also need to explain why that difference should be legally significant. After all, presumably both sorts of disclosure are equally intrusive on people’s privacy, and are potentially equally newsworthy (newsworthiness is a defense to a disclosure of private facts claim). What sorts of arguments can you think of to support the distinction, whether or not you yourself think those arguments carry the day?
B. To analogize cases, you need to (1) identify the cases to which you want to analogize, (2) point to the similarities and explain why they should be legally significant, and (3) explain why the differences should not be legally significant.
When you distinguish cases, you often know which precedent you need to distinguish (sometimes because it’s the one your opponent has already pointed to as a good precedent for him). But when you want to support your position with an analogous precedent, it often won’t be clear exactly what precedent is analogous. It might take a good deal of research, as well as creative thinking about how certain seemingly different cases are actually analogous in an important way. Such thinking is one thing that we’ll be trying to train in this class.
I'm all fine with works of ridiculous fiction, but it seems to me that even the ridiculous should be as accurate as possible given the constraints of its ridiculousness. So the trailer for 2012 doesn't get a pass for calling Mayans "Mankind's Earliest Civilization," which isn't even close.
President Obama Repeats Support for Former Honduran President Zelaya.
In his joint press conference in Mexico today, President Obama stated clearly that the U.S. has chosen the side of former President Zelaya in Honduras:
We have been very clear in our su--, belief that President Zelaya was removed from office illegally, that it was a coup, and that he should return. We have cooperated with all the international bodies in sending that message.
Unfortunately, Obama did not explain why he thought that the Honduran Supreme Court was acting illegally when it ordered Zelaya removed.
In a welcome about-face, the State Department told the Senate Foreign Relations Committee's Richard Lugar, R-Ind., in a letter Tuesday that the U.S. would no longer threaten sanctions on Honduras for ousting its president, Mel Zelaya, last June 28.
Nor will it insist on Zelaya's return to power. As it turns out, the U.S. Senate can't find any legal reason why the Honduran Supreme Court's refusal to let Zelaya stay in office beyond the time allowed by Honduran law constitutes a "military coup."
This marks a shift. The U.S. at first supported Zelaya, a man who had been elected democratically but didn't govern that way. Now they're reaching out to average Hondurans, the real democrats.
Sure, the U.S. continues to condemn Zelaya's ouster and still seeks mediation of the dispute through Costa Rican President Oscar Arias. But no U.S. sanctions means Hondurans have won.
True to its title, the book is about writing law review Notes, writing law review articles more broadly (there isn't much of a difference between the two), writing seminar papers, and doing law review write-on competitions. Even if you already wrote on to law review, or have no interest in being on law review but are planning on writing an independent research paper or a seminar paper, it can help you with choosing a topic, structuring the article, figuring out a research plan, improving your writing, and then circulating the article for publication.
Here's a very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):
Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.
But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.
Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.
As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at law.ucla.edu.
Here are some materials I put together for my first-semester torts students, aimed at explaining some things that students often find mystifying and frustrating about law school (such as, why aren't we just learning the rules?). My thinking is that students are generally happier if they understand that we have good reasons for certain pedagogical choices, and that they often accept the validity of those choices once we tell them what the reasons are. Maybe I'm living in a fool's paradise on this, but that's been my sense from when I've done this before.
I thought I'd also pass these thoughts along here, in case some of you find them interesting. And if you have some more items along these lines that you think first-year students would find helpful, please do mention them.
* * *
What will you be asked to learn in the next three years, and in this class in particular?
1. The Law: Many class sessions — both in torts and in other classes — will be spent learning particular legal rules. And these rules may well prove useful in your future practice, even if you don’t become what most people think of as a “tort lawyer,” which is to say someone who does personal injury law. Lots of business litigation involves torts, such as misrepresentation, interference with business relations, trade libel, and the like. And many of the concepts from traditional personal injury torts cases apply to business torts cases as well.
2. Concepts: A second answer is basic legal concepts, reusable modules that come up in many contexts: negligence, causation, joint liability, mental state, and the like. You’ll see them again in criminal law, in First Amendment law, in the law of copyright damages and contributory infringement, and elsewhere.
3. Skills: You will also be learning legal skills.
a. Reading cases: One important skill is reading cases. This is what you need to do to figure out what the rules are. We can teach you California tort law as it is in 2009; but what if you need to give legal advice ten years from now, in another state, about some subject matter you never studied in law school (for instance, employee benefits law)? Learning the skill of reading cases is therefore more important that just learning the rules.
Moreover, even if you think you know the rule, you’ll need to read the cases to figure out what the elements of the rule really mean in a particular situation. We can teach you that the tort of “disclosure of private facts” consists of “giv[ing] publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” But what do those terms actually mean? Would, for instance, an 11-year-old girl’s giving birth to a child be “of legitimate concern to the public”? You can only answer the question by looking at how cases have interpreted the vague “legitimate concern” language.
And you’ll need to read the cases to figure out how best to argue in the direction that your client needs you to argue. Sometimes there might not be a clear answer given by the cases. You’ll therefore need to argue by comparing your scenario with those in past cases.
b. Analogy and distinction: The last point about reading cases leads us to a separate skill: making analogies, and drawing distinctions, between the case before you and past precedents. This is a quintessentially lawyerly skill (at least in countries which use the Anglo-American legal system). Math classes, for instance, generally call on you to solve a problem by applying basic mathematical principles, or deriving the principles and then applying them. It’s helpful to see the similarities and differences between this problem and past ones, but chiefly because seeing them can help point you towards the right principles to apply.
But in law, there sometimes won’t be a basic principle you can appeal to, or the principle may be so abstract (e.g., “breach of duty”) that it won’t give you much guidance. That’s when drawing analogies and making distinctions between your case and the precedents becomes very important. Often, the strongest argument you have is not “My client should win because defendant’s conduct satisfied the elements of the test for liability,” but “My client should win because defendant’s conduct is very close [for these reasons] to what led to liability in X v. Y, and very far [for these other reasons] to what led to a finding of no liability in Z v. W.”
Torts classes are especially focused on teaching analogy and distinction, and this is especially true for this class in particular. You’ll be reading many more cases (though in shorter chunks) in this class than in most of your other classes; and often the questions you’ll have to answer are — to quote the textbook — “What is the superficial similarity between [these two cases]?,” and “What is the distinction between them?”
I’ll say some more on analogy and distinction at p. S7.
c. Reading statutes: Reading statutes is also a very important legal skill. We won’t focus on it much in this class, since torts is a mostly nonstatutory field. But pay close attention to learning how to read statutes in your other classes (such as contracts, criminal law, and civil procedure). Much of a lawyer’s life is spent reading statutes.
d. Thinking about how the law affects prospective litigants (and others): In law school classes, we’ll often talk about the results in particular cases, and about whether those results seem right. But most people don’t view the law looking backward this way. They need to view it looking forward, by asking what they should do to avoid liability.
This is how you’ll need to advise them when they ask you for advice. “What, if any, security precautions should I take to prevent my being held liable if my customers are attacked by a criminal?,” a business owner might ask you. “Juries award liability if reasonable precautions aren’t taken” isn’t very helpful. Neither is “In this case, which had the following facts, a jury awarded liability.” On the other hand, “if there have been no criminal attacks on your property yet, and you don’t hire a security guard, you will almost certainly be able to get the case thrown out of court before trial even if there is a later criminal attack” would be pretty useful advice (assuming it’s accurate, of course).
Relatedly, when you’re arguing about what the law ought to be, you should be ready to explain how the law will affect people’s incentives up front, rather than just explain why the law seems fair in apportioning liability after the fact.
Imagine, for instance, a proposed legal rule which simply says, “act reasonably.” One problem with the rule is that juries might not do a good job of applying something this vague. But even if we’re sure that juries will usually properly sort the reasonable (who will properly be found not liable) from the unreasonable (who will properly be found liable), this will give little guidance to people who need to know up front how they should be acting.
Such absence of guidance is a good argument — though not always a dispositive argument — against the proposal. And you can’t think of this argument if you don’t think about how the law will practically affect people in the future.
e. Making policy arguments: A lawyer must sometimes advise a client whether certain conduct would lead to liability. We can call this the lawyer’s predictive function, because it involves predicting (whether confidently or tentatively) what a court would do.
But often a lawyer must make arguments about how a court should interpret a legal rule, which legal rule the court should apply, and sometimes even which legal rule the court should create or adopt. This is the lawyer’s persuasive function, and to perform it, a lawyer needs to know how to argue (1) why a court should adopt one or another reading of a precedent, (2) why some precedent is closer to or further away from a particular fact pattern, (3) why some statutory language should be interpreted one way or another, and (4) why a court should or should not adopt some rule that is within the court’s power to adopt or reject. Lawyers arguing outside court will also often have to argue (5) why a legislature should or should not adopt some rule, and (6) why executive agencies or other administrative agencies should or should not adopt some rule.
Arguments that fall within categories 4, 5, and 6 are often called policy arguments, as opposed to caselaw arguments (1 and 2) and statutory construction arguments (3). Many class sessions will be devoted to talking about policy arguments — what kinds of policy arguments have been made and accepted by judges and legislators in the past, what standard responses there are to those arguments, and so on.
Some people get impatient with those arguments, because they think they want to know what the law is, not what it should be. But that’s a mistake: The law is often vague, and sometimes unsettled; judges often have some flexibility in deciding which rules to adopt, or how to apply a rule. In such situations, judges may well be swayed by policy arguments.
I’ll say some more about making policy arguments at p. S8.
f. Talking in front of others. All lawyers have to be good at this. Even if you plan on being a transactional lawyer, you’ll have to give presentations to clients and potential clients. Moreover, many lawyers find they have to give talks to lawyer and business groups in order to spread their names and thus get more clients (or more referrals from other lawyers).
We don’t teach you this skill formally, outside a few clinical oral advocacy classes. But we do ask you to learn the skill by doing — by speaking in class.
Yes, speaking in class can be frightening, but remember that all you’re risking is a little embarrassment. How frightening will it be when your job prospects, your client’s money, or your client’s liberty is at stake? The way to reduce this fear is practice, which is what you’ll get by speaking in class. So please don’t ask me to exempt you from class participation, which is a requirement of this class. If speaking in public troubles you — as it troubles many people — you need to speak more, so as to overcome the fear.
We also often ask you to speak without advance notice, by calling randomly on you. This is not quite like practice, but it’s still helpful, because the possibility of being called on tends to focus students’ attention. In this class, I also try to make the experience easier for students by calling on two students at the same time. That way, if one student stumbles a little at the outset, the other can take the lead, and by the time I return to the first student, that student is likely to be ready to take up the challenge.
4. Habits and attitudes: So far, we’ve talked about knowledge and skills. But law school is also aimed at teaching you certain habits and attitudes that can help you succeed as a lawyer. Let me mention a few, which are closely tied to what we’ve said before.
a. Think dispassionately, and always examine the other side of the argument. You can’t be good at making arguments (caselaw arguments, statutory construction arguments, or policy arguments) if you aren’t willing to step away from your ideological and even moral commitments, and see the best argument that can be made on both sides.
You might think that big companies routinely profit by injuring consumers, that products liability law should be more plaintiff-friendly than it is, and that nearly all tort defendants are morally culpable. Or you might think that plaintiff’s medical malpractice lawyers are low-lifes who are ruining the lives and reputations of innocent doctors, and making good medical care much more expensive. You might be right, on either or both of these scores. But you can’t be an effective advocate for your perspective if you don’t fully grasp the strongest version of the other side’s arguments, and objectively see the possible weaknesses in yours.
Sometimes as a lawyer you’ll be obligated to argue in court for a position you disagree with. But even if you always argue for the side you believe in, you need to have earlier — in your head or in conversations with your colleagues — made the best argument for the other side. Don’t ignore your passions; they can energize you to work more effectively, and can help you derive satisfaction from your work. But don’t let them blind you.
In particular, you’ll often be called on in class to argue a particular position, even if you don’t believe in it, or sometimes even to argue against the very point you had just made. Don’t resist. Rather, cherish the opportunity to cultivate this important lawyerly habit.
b. Marry the abstract arguments and the concrete arguments. Effective legal arguments tie abstract rules to the concrete facts of a particular case. It’s not enough to present the concrete facts; however emotionally appealing the facts may be, you can’t persuade a court to give your client what your client wants unless you explain how the facts fit within a legal rule. But in my experience, most law students (and many lawyers) are good at pointing to legal rules — or to broad philosophical abstractions — but not as good at explaining why those rules or abstractions apply in this particular context.
For a concrete illustration of this, see the policy argument discussion at p. S8.
* * *
So keep in mind that this class is about learning many different things. If a class session is light on the legal rules, it may be heavy on the policy arguments. If we spend a lot of time with one doctrinal question that only rarely comes up in practice, the reason might be that we’re using it to study some broader principle, which comes up all the time. My hope is that by the time the semester is over, you will have learned a lot on all these topics.
Soon after I arrived in Tokyo yesterday, a major earthquake (7.1 on the Richter scale), hit the area. I felt our hotel shake, but was completely unharmed; my fiancee actually slept through the whole experience. Tomorrow morning, a typhoon is expected. As a rationalist and an atheist, I have to assume that these events are just coincidental. Certainly, both earthquakes and typhoons are relatively common in this part of the world. Still, the close proximity of these events to my arrival might lead some to suspect that the Shinto gods don't welcome my presence in the Land of the Rising Sun. Typhoons supposedly inspired by the gods helped save Japan from two thirteenth century Mongol invasions. Perhaps the gods view my own invasion as a comparable threat to Japanese civilization.
19th Century Traffic Law:
One of the recurring issues in the body of criminal caselaw involving driving violations (such as speeding and drunk driving) is what counts as a "vehicle." If a law prohibits speeding in a vehicle, or driving a vehicle while intoxicated, courts eventually have to grapple with what counts as a "vehicle." These cases pop up from time to time, asking such profound jurisprudential questions as whether a horse counts as a vehicle, or perhaps a wheelchair, or maybe a lawnmower.
In light of this recurring issue, I was amused to come across a 19th Century case, Bly v. Nashua St. Ry. Co., 32 A. 764 (N.H. 1893), that seemed somewhat similar. The case involved a New Hampshire traffic law that stated, "no person shall ride through any street or lane, in the compact part of any town, on a gallop or at a swifter pace than at the rate of five miles an hour." The question in the case was whether that law applied to a railway that went through the town of Nashua, New Hampshire.
The New Hampshire Supreme Court ruled that the statute did in fact apply to the railway:
The statute was enacted in 1792, and has been re-enacted in every general revision of the laws substantially in the same form. Street railways were unknown in 1792. The mode of conveyance for persons then in general use was on horseback. A gallop is a favorite gait for such riding. But the mode of conveyance was a mere incident of the mischief to be remedied. This consisted of the danger to which the life and limbs of persons using a street or lane were exposed by the fast riding of others, whatever be the mode of conveyance. The object of the statute was to remedy the mischief; and it was to be accomplished by preventing fast riding generally, not fast riding on horseback in particular. The words used are general: “No person shall ride * * * at a swifter pace,” etc. The means of riding may be any that is in use while the statute is in force.
The driving of cars over steel or iron rails is attended with greater danger to others using the streets than the driving of ordinary vehicles over their uneven surfaces. As cars are heavier than ordinary vehicles, and there is less resistance to their motion, their momentum is not so easily controlled, and causes more serious consequences when they come in collision with objects. Being confined to a fixed track, they cannot be turned aside to avoid collision. They have a tendency to frighten horses, especially when propelled by steam or electricity. . . .
If the general law does not apply to the defendants, they may drive their cars at any rate of speed, however great, until the mayor and aldermen establish regulations for their government, while a person riding upon horseback or in a carriage cannot drive across, along, or in the vicinity of their tracks at a swifter pace than five miles an hour, without subjecting himself to liability to be fined or imprisoned. Such inequality would be arbitrary and unreasonable.
An Addendum to My FOIA-ACLU Post, or, La Trahison des New Class:
What follows was posted up as a final addendum to the FOIA-ACLU post below; I've been urged to put it up as a separate post. I've hesitated to do so, partly because I think it will leave numbers of people thinking, perhaps correctly, that its political heat is excessive - and also because, due to various schedules, I've written at high-professor speed - no time to amend, edit, or make comprehensible. Apologies on both counts. I think there's something of value here, even badly expressed. I'm leaving the comments off, however, as I would not have a chance to moderate or even read them.
With reference to what a number of commenters have said differentiating between collect information and collecting information on individuals. I will simply say in all candor that I do not understand that there is a meaningful difference between citizens reporting "rumors" and such in the abstract to the White House email address, and reporting on fellow citizens. It has been a theme of many of the comments, and with all respect, I think it is a difference without a distinction. Certainly it is the sort of distinction that civil libertarians have long rejected, as a matter of principle.
The principle, however, is not precisely the one that the commentators seem to be saying. Commenters on this thread, at least, seem to be taking the view that you treat everything the administration is doing in good faith so that unless someone presents evidence of - well, I'm not clear what for many of our commenters would actually count as something, but let's say something that would cross the line. Short of presenting evidence of that, good faith requires that we trust the government. Other commenters naturally take the opposite view and claim that the administration acts per se in bad faith.
The American constitutional tradition, I suggest, is quite different from either - and consists of two not entirely consistent strands. First, it consists in not trusting the government. The freeborn citizens of this country have zero obligation to accept the government's claims that it collects information or does much of anything else in good faith; the government has the obligation, as a general presumption - it can be answered, yes, but still a presumption of popular democracy - that it, not the citizens, has to account. We honor that ornery, recalcitrant position not because we think it is always right, but because it is a considerable bulwark, procedural as well as cultural, against tyranny. That's why, crazy as I personally happened to think the left was acting during much of the Bush years, there was a certain abstract honor in it. But - and this is the crucial but - only as long as you are willing to grant the same to the other side in the alternation of power.
The second is a constitutional tradition of doing the opposite of what I just stated above. One way of defining the role of 'His Majesty's Loyal Opposition', to express it anachronistically, is to say that it expresses its views, not by taking the majority's positions as being in good faith - but in 'suspending public disbelief' in the bad faith of the majority.
Yes, that's a mouthful - and it is an even more difficult balancing act. Why? It requires acting as though one takes the majority's policies, proposals, etc., not in bad faith - which, however, is not quite the same thing as taking them in good faith, or even as though in good faith. There are subtle differences in affect, attitude and action as among these. But the problem of the loyal opposition is to walk as far as it can disagreeing with the majority's preferred policy, while still accepting that it is offered in good faith.
Yet at some point, it might not be able to do so - in which case, well, see the first, above. It won't be possible to give an a priori rule telling one when that point, in good faith of its own, has been reached, alas. Hence many political battles of the kind we are seeing over claims of good and bad faith. But the essential line is not really between good faith and bad faith - it is when the loyal opposition should drop a certain public presumption of good faith, whether it actually believes it or not. This public presumption matters because it goes to the fundamental public-private divide - the fact that we sometimes properly act in public in ways that are not what we privately believe - upon which liberal democracy is premised. On the matters of policy substance - raise taxes, lower taxes, even go to war, not go to war, etc. - the dropping of that presumption should be regarded as a very drastic step. It has not been so treated, by either party, regrettably, in recent opposition dealings during the past several administrations.
However, one thing that the loyal opposition is always right to insist upon is that the 'traditions of process' be observed punctiliously - because those are the traditions of office by which the majority governs and to which the minority aspires, the traditions by which there is a political community and not simply contending factions. The office, including its sacralization and legitimation through those traditions of process, is greater than either.
Again, to be blunt, however, the current administration does not seem to regard the office as greater than it. At least not in its current behavior, or up to this still early point of less than a year in office. One presumes things will change. But, for the moment, the seeming dispensability of traditions by which the office is understood by ordinary people to be honored - or dishonored. The honor of the office includes, in my view, that the office of the President of the United States not ask one group of loyal citizens to inform on the indisputedly lawful, constitutionally protected speech-activities (even if you think there's a difference between that and the citizens themselves, which I don't) of another group of loyal citizens. The president of the United States has treated the constitutional speech of citizens as - phrasing here is important, and it is not the equivalent of "the same as" - not sufficiently distinguishable from asking citizens to be on the lookout for suspicious activities that might turn out to be perfectly legal, but might turn out to be a bomb on an airplane, but in which there is a legitimate question of sifting for possible grave and violent criminality.
We don't really like it in the latter case - and shouldn't - but accept some part of it, even while arguing over its extent, because it is related to a function of government to protect the physical security of the commonweal against mass criminal violence, mass terrorism, etc. In the current situation, however, there is no question of criminality or the need to have a suspicion thereof. The speech is all constitutionally protected, and so even that reason of state, and not simply the desires of a political administration, is quite absent.
Why such a blunder over something that, at least if one is minimally attuned to the traditions of the office, is fairly obvious? At risk of giving great offense to many friends and correspondents, the current administration seems curiously to believe that it honors the office, rather the other way around. Moreover, the presence of - once again, so many friends and colleagues and correspondents, so risking offense - so many luminous and glittering intellectuals does not help the administration to find a certain humility in the mere office of the presidency. I imagine one reason is that a not-insignificant number do not especially see the office as having any special moral standing, compared, they would say, to a more just and universal institution of governance. A certain form of cosmopolitanism risks blinding one to the nuance of actual political communities, and to confuse their constitutive political elements with their mere politics.
Nor does it help matters that the prevailing intellectual (as distinguished from the prevailing strictly political, which is distinct and frankly deeply unattractive, at least to a large number of people on the outside) mood within the administration is one of pragmatism. Mere ordinary people will tend to believe that pragmatism is essentially a synonym for "moderate." It was part of the basis on which the Obama administration was elected - pragmatic moderates who would rule through the virtues of technocracy.
But pragmatism as a political philosophy in this case is not strictly a matter of devotion to moderation. It might be. But then it might not. As a political program, it can have the virtue of lowering the affective temperatures of politics - as happened, for example, in the generation in Scotland following the civil wars, for whom pragmatic, technocratic language ("and now, a Report on the types and numbers of cattle in Certain Highland Villages") offered a neutral language out of the wars of religion. But pragmatism is not essentially moderate or immoderate; pragmatism is essentially unconstrained except by its own calculations of a remarkably reductionist moral psychology, which is both its virtue and vice. It arises out of certain versions of utilitarianism, and in that consideration, such things as the embodiment of rights within a political tradition means something very different from what ordinary people might have thought.
This is equally a problem of pragmatists of the left and right, to be sure. But it is the pragmatism of the left that currently governs. Pragmatism in pursuit of ends that technocrats in majoritarian power have determined to be welfare maximizing has license to be radical and not always moderate, if that is what it takes. What matters are the costs on the other side. At this very moment, however, it might say, considerable numbers of people appear to have drawn from that a need to raise those costs across the country: and yet the pragmatists would be right in substance but wrong as to what people think they are doing. They think they are exercising their rights to speak and force their political representatives - not rulers - to hear them. Pragmatism's virtue is its pursuit of sense. The problem, however, is that a democratic polity consists partly of technocratic sense, but also of sensibility and that sensibility is embedded primarily in its traditions of process.
(Look, I do understand entirely that half the readers are yawning because this is all so obvious - whereas the other half simply lack the receptors for the kinds of moral distinctions I am suggesting; it is as though, cribbing William James, I were trying to convert them to the gods of the Aztecs. The whole debate and all these distinctions don't register, just as certain things quite fail to register with me, such as the distinction between collecting information on what one's fellow citizens are saying but not collecting information on them. We try through mechanisms of cultural assimilation to prevent those gaps from growing too large, and in our public life, we properly try and rely upon the suspension of public disbelief about the good faith of the other. When those run out of grip upon us, we have a big problem.)
See Burke on all of this, but particularly on his notion of the sublime, to grasp his moral psychology prior to reaching to his (often quite inconsistent) politics. There are subtle differences of sensibility in a democratic polity that the prevailing rationalist, reductionist pragmatism fails to capture, because it insists that all debates are over sense, rather than sensibility. (See also, a trifle weirdly, my post below about girls and college admissions, and how Austen no longer counts; fuse it with this one to grasp why the de-emphasis on Austen, and by extension the inability to use a language of politics to express a view on sensibility as well as sense is a way in which the intellectual class denudes our political language of the subtlety necessary to capture even the concept of a "loyal opposition" in a democracy.) La trahison des New Class? Yeah, something like it.
I leave everyone else to sort it out, as I am going offline. I am sorry if I offend a sizable number of people with this addendum. I'm also sorry that it sounds like what it is - a professor writing at high speed; I don't have time to go back and amend or edit. But my general view of this is captured by Peggy Noonan's weekend column and likewise, even more strongly if possible, a passing remark of hers a week or so ago in a WSJ column, to the effect that we need to revive the category and analysis of the New Class. Amen to that. Agree with her or not; she's eloquent and clear - even if I'm not.
But most damagingly to political civility, and even our political tradition, was the new White House email address to which citizens are asked to report instances of “disinformation” in the health-care debate: If you receive an email or see something on the Web about health-care reform that seems “fishy,” you can send it to firstname.lastname@example.org. The White House said it was merely trying to fight “intentionally misleading” information.
Sen. John Cornyn of Texas on Wednesday wrote to the president saying he feared that citizens’ engagement could be “chilled” by the effort. He’s right, it could. He also accused the White House of compiling an “enemies list.” If so, they’re being awfully public about it, but as Byron York at the Washington Examiner pointed, the emails collected could become a “dissident database.”
All of this is unnecessarily and unhelpfully divisive and provocative. They are mocking and menacing concerned citizens. This only makes a hot situation hotter. Is this what the president wants? It couldn’t be. But then in an odd way he sometimes seems not to have fully absorbed the awesome stature of his office. You really, if you’re president, can’t call an individual American stupid, if for no other reason than that you’re too big. You cannot allow your allies to call people protesting a health-care plan “extremists” and “right wing,” or bought, or Nazi-like, either. They’re citizens. They’re concerned. They deserve respect.
With Justice Sotomayor sworn in, my temporary gig as Special Counsel to Senator Cornyn is over and it's back to blogging for me. Thanks to everyone I worked with over the last few months for such a great experience; not only was Senator Cornyn a terrific boss, but his staff was first-rate. Special thanks to Matt, Russ, Holt, Ashley, Mark, Kevin, and Marissa P. I'd also like to thank the summer law clerks for Senator Cornyn who were so helpful during the hearings: Marisa Maleck (Chicago), DeLisa Lay (Yale), John Heath (UVa), and Amanda Hinson (Harvard).
For years the chemical industry has fought additional federal regulation. They argued that existing laws, such as the Toxic Substances Control Act (TSCA) were sufficient. Now, however, it appears they've changed their tune. The Washington Post reports:
For the first time, chemical manufacturers said they are willing to furnish the Environmental Protection Agency with health and exposure data they have gathered that are related to their chemicals, and to allow the agency to determine whether the chemicals are safe to use.
They said tougher government regulation is the best way to reassure consumers about the health impact of various chemicals.
"The fundamental duty of the chemical industry and government that regulates it is to make sure those products are safe," said Cal Dooley, president and chief executive of the American Chemistry Council. . . .
Dooley and top executives from several companies, including Dow, said the industry wants Congress to give the EPA new authority and resources to ensure the safety of chemicals used in such things as furniture, cellphones and grocery bags.
What explains the about face? Does this mean the chemical industry has suddenly turned over a new leaf? I don't think so. Rather, I think there are several reasons that some chemical companies, particularly the larger players, may believe that supporting additional federal regulation is in their interest.
First, the chemical industry is likely responding to the current political environment. With a Democratic President, Democratic Congress, and an EPA hostile to cost-benefit analysis, the industry may believe it is better to have a "place at the table" where it could influence potential regulations and perhaps seek a compromise. By supporting new regulatory efforts, industry officials may believe they are heading off something that could be worse for their interests.
Second, many of the larger firms within the chemical industry believe federal regulation is preferable to state and local regulation. As the Post reports:
The industry leaders said they want a strong federal policy because, in its absence, states and even localities are passing laws to restrict certain chemicals, making it nearly impossible for national companies to comply with a patchwork of rules.
"You're seeing more and more activity at the state level in terms of bans of certain chemicals or states trying to institute their own chemical management systems," Dooley said. "It's a reflection of their lack of confidence in the current regulatory system to assess the safety of those chemicals."
For companies with operations in multiple states, a single federal standard may be easier to meet than a patchwork of state standards. No doubt the industry hopes that new federal rules will preempt more stringent state requirements. If so, increased federal regulation will actually ease regulation in some jurisdictions, and possibly prevent the adoption of more stringent measures in the future. Even if new rules aren't preemptive, they will still place downward pressure on more stringent rules. As I explain in this article (see pp. 94-106), even non-preemptive federal regulation can have the effect of reducing the stringency of state-level regulation, particularly over time.
Third, it's possible that some in the chemical industry see a competitive advantage in more stringent federal regulation. Regulation tends to have a more onerous effect on smaller firms. As this Small Business Administration study reports, per-employee regulatory costs are significantly higher at smaller firms. Other research has shown that regulation, including environmental regulation, tends to disadvantage smaller firms, discourage new entrants, and increase industry concentration. Federal regulation, in particular, can also advantage national firms over smaller, local or regional firms and eliminate any comparative advantage a smaller firm may have in complying with local rules tailored to local conditions and concerns.
None of this means that new regulations are good or bad. The merits of each specific regulatory proposal need to be evaluated independently. But it is yet more reason to reject the simplistic "business vs. environmental regulation" narrative that so often dominates coverage of environmental policy. In reality, as I explained here:
the traditional framing of the environmental debate is a false one. There is no corporate monolith that opposes regulation across the board, and one can never assume that support for more regulations comes primarily from those who have the public's
well-being at heart. Environmental policy conflicts are not epic struggles between white hat public interest crusaders and greedy black hat corporate interests. Indeed, in the environmental arena, as in most policy debates, there are few black hats or white hats-most are shades of gray.
There have been significant developments on the signing statements debate, although I'm unfortunately not in a position to blog them at the moment (I'm on Cape Cod, and my wife, who is preparing for trial upcoming shortly, has a superior claim on the laptop).
As recounted in a Charlie Savage article this morning (which I can't link to right now because of a balky computer, but it's on page A18 of the print edition), President Obama's use of signing statements has drawn fire from Members of Congress in his own party. In a July 21 letter, Representatives Barney Frank and David Obey, the Chairmen of the House Financial Services Committee and Appropriations Committee, respectively, sent a letter to the President asking him to stop issuing such signing statements and warning Congress might cut off certain funding if he did not do so. On July 9, the House voted overwhelmingly to prohibit officials from using federal money if they disregarded certain negotiation instructions included in a law that was the subject of an Obama signing statement. Savage also quotes now-former ABA President H. Thomas Wells, who stated: "We didn't think it was an appopriate practice when President Bush was doing it, and our policy is such that we don't think it is an appropriate practice when President Obama is doing it." While I disagree with their views on signing statements, I am heartened that they are applying their views consistently. When I get some more quality time with the computer, I'll try to add links.
In other news, for the 1.5 people who have noticed my absence recently, I have been busy writing a forthcoming article for the Green Bag. I finished it Friday, so, my wife's trial schedule permitting, I will be back blogging on my regular (leisurely) schedule.
The LA Times reports that Attorney General Eric Holder is now expected to appoint a prosecutor to look into the alleged abuse of detainees during interrogations. Specifically, the report suggests the prosecutor will be asked to examine the narrow question of whether CIA personnel and others exceeded the limits on interrogation techniques that were set by the Justice Department. Even though the Justice Department's Office of Legal Counsel adopted a fairly expansive view of permissible interrogation techniques during the Bush Administration, some reports indicate that some interrogation methods used went well beyond what the OLC memos authorized. The story also reports there are additional incidents of abuse or illegal conduct that have yet to be disclosed.
Successfully prosecuting CIA interrogators could be difficult, the LA Times reports.. The events in question occurred several years ago, and the facts may be difficult to pin down. In addition, the federal anti-torture statute has a specific intent requirement, and some interrogators may plausibly claim they were unaware of what the limits OLC had set. Justice Department officials apparently looked into bringing charges against CIA or military personnel implicated in detainee mistreatment, including some cases that resulted in a detainee's death, but concluded the cases would be too hard to make.
The announcement of a prosecutor will likely generate criticism from both Right and Left. The former will argue that any prosecution is an effort to criminalize political differences and undermine CIA morale. The latter will be upset about the inquiry's narrow focus, and its failure to cover those who authorized coercive interrogation techniques. According to a spokesperson for Human Rights Watch: "An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all." Stay tuned.
A Week of Neither Blogging, Nor the Reading of Blogs:
With apologies to the Senior Conspirator, I am going to be taking a week off, starting this afternoon at 4:00 pm. It's not just that I won't be posting for a week - I won't be reading this blog or any other blog for a week. In fact, with the exception of absolutely necessary email, I'm staying off the web completely. Does anyone remember the wonderful XKCD comic with the opening panel:
We all know there's something to that. Family is away at the beach. I have the house to myself and book on US-UN relations finally to finish and deliver (part of which, concerning the Security Council and the US, you can read here). I plan to read physical newspapers, read books and articles not online, and go to the gym and work out not once but twice a day. That's more or less what vacation is for me this year - work out and finally complete a book that has been giving me fits. I wish I were in the Eastern Sierra, in the Owens Valley, which, as we all know, is God's country, California's Empty Quarter. I wish I were doing this stretch of writing and rewriting work in Palo Alto, at the Hoover Institution. But I'm in DC, and it appears that the weather is about to get unpleasant.
I have shaved my head completely, as I have discovered from long experience that even if it doesn't help me discover my spiritual side, it weirdly helps me concentrate. I highly recommend it. I have much coffee, good stuff from Antigua Guatemala. Yerba mate from Paraguay. I have my extralight olive oil re the Seth Roberts diet - to which, although I realize I'm just bragging here - I sincerely credit the loss of 25 pounds and a wholly unmedicated cholesterol score last week of 128 total and 66 good (!). Among the books for the odyssey - which I was going to read virtuously while walking on the treadmill - was supposed to be Brian D'Amato's huge novel thing about Mayans and game theory, but my daughter swiped that for the beach - will she really read it? I might simply re-read The Red and the Black, and maybe the collected sci fi of John Boyd (The Last Starship From Earth, The Rakehells of Heaven, and the one about the lesbian orchid plants on some faraway planet, The Pollinators of Eden).
I will also finish the read of books on the financial crisis for my TLS review and I hope draft it; and some long delayed work for my nonprofit media investment fund (when I get back, I'll describe the fantastic equity deal that was finally just sold off for a very large gain, in the Balkans, no less); and some stuff for the Madrid Revista de Libros. Shoulder permitting, I'll play the cello a lot - it seems to help the muscle spasms in my wrists and fingers. That's me this week, going on a crazy, zany, internet-free week. If anyone wants to comment, I'll be around until 4:00 pm.
One of President Obama's first acts as President was to sign legislation overturning the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber and make it easier to file pay discrimination claims. As David Ingram reports, this may have been a sign of more to come, as Congressional Democrats are seeking to undo several significant Roberts Court decisions.
As I noted earlier this week, Senator Specter and others are seeking to overturn the Court's Stoneridge decision to create the potential for third-party liability for securities fraud actions. Also in the works is legislation to overturn Riegel v. Medtronic, which found that the Medical Device Act preempts common law claims against medical device manufacturers, as well as Twombly and Iqbal, two decisions that tightened notice-pleading requirements.