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Honesty and Accuracy, Even in Arguing Against People You Disagree With:

One reader writes, apropos my defense of the ACLU against charges of "frivolous" and "criminal" litigation:

If the ACLU is successful in their New York subway suit, we all lose our most basic freedom -- not to be killed by a bomb. If they are successful, it will be the end of riding on the subway (following a successful train bombing in the USA).

I usually agree with Eugene but in this case I think he has lost his usual common sense and is thinking only of the legal technicalities.

Distinguishing fair criticisms of one's adversaries from unfair criticisms is not a technicality. I've seen lots of people, left, right, or elsewhere, make the same mistake: Just because they think their adversaries are wrong in one way (e.g., propose an unsound view of the Constitution), they feel free to just throw a barrage of epithets at them -- their arguments are criminal, frivolous, pro-terrorist, dishonest, corrupt, Nazi, or what have you. And then, when a third party defends the targets against the unfair criticisms, the critics seem upset. How can you defend these bad people? They're clearly wrong!

Well, that our adversaries are wrong doesn't justify our making wrong (and unfair) arguments ourselves. Consider the message I quote above: My correspondent is complaining about what would happen if the ACLU is successful in their suit. That is flatly inconsistent with the argument that the ACLU's position is "frivolous." (To be frivolous, a legal position has to be not just a loser, but such a sure loser that it can't be justified as a good faith attempt to change the law.) If the ACLU's positions were really frivolous -- which is the supposed essence of the Christians Reviving America's Value call for "the US Congress to investigate the ACLU for widespread use of frivolous lawsuits" -- then why worry about the ACLU's lawsuit being successful?

If you think the ACLU's legal position is mistaken, explain why you think it's mistaken. Labeling that position with epithets that it doesn't deserve is, I think, on balance ineffective, since it undermines your own credibility. But effective or not, it's just wrong.

Ugh:
Are people mad? If the ACLU loses their suit, we all lose our most basic freedom -- not to be killed by a bomb. Random searches of a tiny percentage of people getting on the subway in NYC is keeping the terrorists at bay? Who knew it was that simple!
8.5.2005 3:43pm
John Jenkins (mail):
Random searches are ineffective. Blanket searches would just result in a larger number of people being killed while queued up waiting to get through should someone attempt a bombing. It's a pointless gesture aimed at making people feel better rather than making them safer. I don't always agree with the ACLU, but they are right here: these searches violate the Fourth Amendment
8.5.2005 3:48pm
M (mail):
Additionally, of course, the idea that a successful bombing of the subway in new york would be "the end of riding on the subway" is, frankly, preposterous. Subway riding goes on, after all, in London now, and in Moscow after several bombings on subway trains and metro stations there, and people ride trains still in Spain. Would people in the US be so much more wimpy? Really, one should think a bit before writing.
8.5.2005 3:49pm
Mahan Atma (mail):
"If the ACLU is successful in their New York subway suit, we all lose our most basic freedom -- not to be killed by a bomb."

There's so many faulty assumptions underlying this statement it's hard to list them all. But for starters, this assumes that:

1) NY's random searches will actually stop a bomber;
2) There aren't less restrictive methods (e.g. bomb-sniffing dogs);
3) We will ALL be killed - not a few dozen people, but ALL of us.

Come on... How many people die in car accidents every year? Tens of thousands. So why isn't the government rushing to eliminate the Bill of Rights to stop this terrible tragedy?
8.5.2005 3:52pm
Public_Defender:
People seem to think that no one would complain if the ACLU did nothing. Wrong. The cops are going to find evidence of a crime on someone during these searches (I'd be shocked if that hasn't already happened. The arrested person would file a suppression motion, and the issue would be litigated that way. But if a criminal wins the suppression motion, he or she could go free.

The ACLU is letting us resolve the issue in the quickest, fairest, and least disruptive way.
8.5.2005 3:53pm
Daniel Chapman (mail):
Great post. Thanks.
8.5.2005 4:09pm
frankcross (mail):
What part of the Constitution gives us a freedom not to be killed by a bomb?
8.5.2005 4:12pm
Anderson (mail) (www):
Right, Frankcross. No right to *privacy* in the Constitution, but a right not to be killed by a bomb. Very mysterious. I call this new trend of legal thought "panicked constructionism."
8.5.2005 4:17pm
Mahan Atma (mail):
"The arrested person would file a suppression motion, and the issue would be litigated that way."

Note that according to the logic of some persons here, a defendant who does this is "protecting the terrorists", and would be responsible for any subsequent subway bombings.

I guess criminal defendants should simply decline to contest their prosecutions in this fashion. Otherwise, they're helping terrorists and costing other people their lives. Aren't they morally obligated to submit to the state by this logic?
8.5.2005 4:21pm
Challenge:
Why is a subway different than an airport? Is the ACLU going to start suing because every bag is x-ray'd and every piece of luggage is subject to search (it's happened to me several times).

Eugene seems to be arguing semantics about what is "frivolous" and I think he forgets that word is ALSO used in non-legal contexts, where describing the ACLU's actions as "frivolous" is perfectly appropriate.
8.5.2005 4:25pm
Mahan Atma (mail):
I'm tired of people saying there's no right to privacy in the Constitution.

True, the Constitution doesn't use the words "right of privacy". Rather, the words are "The right of the people to be secure in their persons, houses, papers, and effects.."

Sounds an awful lot like privacy to me.
8.5.2005 4:25pm
Larry (mail) (www):
Professor Volokh, You really need to be more vocal in telling your friends this. But, because your posts are so long, of the crazies that look up to you have lost interest.

It would be funny to see you trying to distinguish “frivolous” from "non-meritorious" on O’Reilly’s show.
8.5.2005 4:27pm
Mahan Atma (mail):
"Why is a subway different than an airport?"

For starters, the potential to inflict damage is vastly greater on an airplane. If you were a terrorist trying to kill as many people as possible, would you rather set off a bomb in a 747, or a subway car?
8.5.2005 4:28pm
Challenge:
That's pretty pathetic, Atma, especially considering 50 Londoners were just murdered by terrorists by that "ineffective" manner.

I shouldn't have to point out that it's much harder to evade airport security than subway security (right now it's a joke), so even I accept your bogus point that it's potentially less dangerous, this effect is more than overwhelmed by the ease of which the attack is carried out, making multiple simultaneous attacks very possible.

Go back to the drawing board. Why is it different?
8.5.2005 4:35pm
Larry (mail) (www):
Mahan, Personally, I don’t know whether a subway is a more vulnerable and/or dangerous target. I thought about this issue for a couple of minutes (in a drug case originating from an airport security search) and couldn’t come to a resolution.

I think the resolution of this question comes down to whether one can effectively avoid taking that mode of transportation. For the most part, in the US, one can avoid flying. Though the AK Supremes have suggested that in AK, one cannot (but they didn’t definitely resolve the issue). Perhaps in NYC, the subway is so engrained into society there that one can’t avoid taking it, and the search would, in effect, be a burden on everyday life.
8.5.2005 4:36pm
Katrina Emmons (mail):
It seems to me the heart of the issue is what one's purpose is in writing. If one's goal is to make a powerful point and cause people to reexamine their own position on the ACLU's claim, disparaging remarks are unlikely to do the job. If however, one's goal is to, say, respond emotionally to the ACLU's claim without intending to pursuade others, then perhaps a diary would be more appropriate. It seems the most troubling part of these criticisms of the ACLU is that they are made under the false premise of sound argument. Consequently, it is THEY and not the ACLU who are deceiving us.
8.5.2005 4:36pm
John Jenkins (mail):
Mahan Atma, you may be tired of it, but the criticism is valid. There is no right to privacy enumerated in the Constitution. Of course, it's been "found" in emanations and penumbras of some of the Amendments, and more properly belongs squarely within the unenumerated (and reserved) rights of the Ninth Amendment.

The (more) complete quote is "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." The question then is whether these searches are reasonable, not whether we are tired of criticism.

Challenge, frivolous generally denotes pointless and meritless, even outside of court. What part of a succesful claim is frivolous? That's nonsensical. Even in the non-technical sense, frivolous just doesn't apply.
8.5.2005 4:37pm
Joel B. (mail):
Perhaps in NYC, the subway is so engrained into society there that one can’t avoid taking it, and the search would, in effect, be a burden on everyday life.

There is some kind of supreme irony in that, that because something is less avoidable you must be exposed to greater risk of malefactors. Effectively putting more numerical individuals at risk.
8.5.2005 4:41pm
Challenge:
"What part of a succesful claim is frivolous? That's nonsensical. Even in the non-technical sense, frivolous just doesn't apply."

Yes, whatever a judge or jury does it by "definition" not frivolous. Give me a break.
8.5.2005 4:41pm
Challenge:
friv·o·lous
adj.
1) Unworthy of serious attention; trivial: a frivolous novel.
2) Inappropriately silly: a frivolous purchase.
8.5.2005 4:42pm
John Jenkins (mail):
Read that definition. Res ipsa loquitur. Or, if you like, if it is so unworthy of serious attention, why are you so exercised by it?
8.5.2005 4:44pm
Challenge:
Because the judges and juries do STUPID things. Silly and stupid sometimes wins. This isn't hard to figure out.
8.5.2005 4:46pm
Mahan Atma (mail):
"The (more) complete quote is "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." The question then is whether these searches are reasonable, not whether we are tired of criticism."

I know the complete quote, and that searches must be "reasonable." All that means is that the right of privacy (like all rights) is not absolute. But how on earth anyone can read the Fourth Amendment not to implicitly state a right of privacy is beyond me.

Whether that right extends to the ability to purchase contraception or have an abortion is another question. But there is no doubt some right of privacy accorded to "persons, houses, papers, and effects..."
8.5.2005 4:53pm
Challenge:
Atma, because "privacy" doesn't mean "privacy." It's a euphemism for a right to sodomy, contraception, and abortion. If all you mean by "privacy" is that people are free from "unreasonable" searches and seizures, then OK, the Constitution has a right to privacy.
8.5.2005 4:59pm
Mahan Atma (mail):
"That's pretty pathetic, Atma, especially considering 50 Londoners were just murdered by terrorists by that "ineffective" manner."

Where did I ever use the word "ineffective" in relation to the bombing of subways? Nowhere.

What I said is that planes are a lot more vulnerable. Yes, 50 Londoners died. By comparison, some 270 people died in the bombing of Pan Am Flight 103 over Lockerbie.

Can I now belittle your argument because you did not sufficiently appreciate the scope of that particular tragedy?
8.5.2005 5:00pm
Challenge:
I would like to add that it doesn't mean you have a right to do what you want in your home, that's not "privacy" that is liberty. Don't let the Court's euphemistic framing of their activism confuse you, Atma.
8.5.2005 5:01pm
John Jenkins (mail):
Challenge, then your criticism is that they are wrong, not that their positions are frivolous. Those don't mean the same thing.

Mahan Atma, that it is beyond you doesn't make it wrong.
8.5.2005 5:02pm
reader:
"I would like to add that it doesn't mean you have a right to do what you want in your home, that's not "privacy" that is liberty."

So your position is that the Constitution does not protect "liberty," then?
8.5.2005 5:03pm
John R. Mayne (mail):
I think the point of the post is vital to anyone wishing to convert non-like-minded thinkers.

The invective and name-calling that often come in arguments of this sort sometimes succeed in making entrenched advocates of both the attacked and attacking position more sturdy in their beliefs, but they seldom grab the fence-sitters. Howard Dean's recent silliness on the Supreme Court undoubtedly hurt him and his party with some informed moderates.

But I think Eugene's last point is even more telling: It's wrong to mischaracterize one's opponents. Just wrong. If we get the truth out to people, we give others a chance to make informed decisions, and who could ask for more than that? Slant? Sure! Highlight assets of our position? Sure! Lie? Why? We need not follow in the footsteps of fraudsters.

It bothers me far more to see proponents of positions I support lying, because it makes it appear that the positon requires lying to support. When proponents of positions I dislike play fast and loose with the facts, it's easy to increase my contempt for their position and them.
8.5.2005 5:03pm
Challenge:
Atma, let me make sure I understand your argument. The reasonableness of this kind of seach would not be in question if terrorists successfully killed 270 people instead of 50?

If you didn't say it was "ineffective" you certainly implied it was not effective enough to warrant this sort of search procedure, which you apparently accept in airports.
8.5.2005 5:04pm
Challenge:
95% of the population thinks it's frivolous, without merit, silly, and stupid.

That doesn't mean the %5 of the population who thinks it's a solid or "credible" argument isn't disproportionately represented in the judiciary and the lawyer class. Therefore, one can believe it is both "frivolous" and worry that those who do not think this way will ultimately decide otherwise.
8.5.2005 5:08pm
Challenge:
"So your position is that the Constitution does not protect "liberty," then?"

Enumerated liberties and those which have a solid basis in America's cultural and legal traditions, yes. That is all. Courts do not have a black check to right what they view as protected liberty into the Constitution. Why do we have to retread over this unrelated issue?
8.5.2005 5:09pm
Ciarand Denlane (mail) (www):
It is not as clear to me as it seems to be to some of the commenters that random searches of large packages proposed to be transported on mass transit is unconstitutional.

I quite agree that random searches are "ineffective" if what is meant is that they will not necessarily stop every, or even any given, bomber. But if there are any actions that will be effective enough to meet that kind of test (and I'm not sure there are) they would probably come at too high a cost. We probably have to content ourselves with measures that merely make it more difficult for terrorists to succeed or that deter only some potential attacks. We also need to consider potential countermeasures not in isolation, but in combination.

I'm frankly not sure whether the payoff of using random searches in terms of deterring or preventing some terrorist attacks is sufficient to justify the costs. I wouldn't dismiss out of hand the expert judgment of the police that such some significant payoff exists, although I would also recognize that in deciding whether the payoff is large enough to justify the costs, the police or other public safety officials might not be giving full weight to those parts of the costs (incovenience, loss of privacy, e.g.) borne by the public at large.

Some thought-experimentation of alternatives to random searches might put the latter into perspective. Consider, for example, a policy to make mass transit systems passenger-only by prohibiting trasport of backbacks, bags, suitcases, luggage, and other cargo. That wouldn't violate the Fourth Amendment, and would be more effective than merely random searches of such cargo. But it too would be less than fully effective in an absolute sense (bulky clothes would be hard to prohibit in a Boston winter, e.g.) and would involve costs that some might deem more substantial than allowing cargo subject to some possibility of random search.

Why would searches of parcels upon entering the subway differ in principle from searches at airports or courthouses? There is no probable cause for airport or courthouse searches either, and the deemed-consent rationale is surely no weaker for subways than for courthouses (can one avoid a subpoena or jury duty by the mere expedient of not consenting to submit to a search at the courthouse door?).

Could the police enforceably promise in advance not to use what they find in conducting random searches to prosecute or investigate any criminal matter other than terrorism?

I agree with Anderson that it is very important that the government try to protect us from bombs. But "constitutional" and "important" are not synonyms. A recognition that it is a very important governmental function to protect us all from bombs does not mean there is an individual constitutional "right not to be killed by a bomb." Cf. City of Castle Rock v. Gonzalez (S. Ct. June 27, 2005) (no right of action under due process clause against authorities who failed to prevent murder of plaintiff's children).

I agree with Professor Volokh's post (btw--the comments have by now gone in a different direction).
8.5.2005 5:11pm
Mahan Atma (mail):
"The reasonableness of this kind of seach would not be in question if terrorists successfully killed 270 people instead of 50?"

I never said any such thing. You insist on putting words in my mouth.

First off, the original question I responded to was "How are airports different than subways?" I pointed out one important difference; there are others.

The point of that post is that -- all else equal -- the more vulnerable the target, the more "reasonable" it is to search persons approaching it. Because planes are more vulnerable than subways, the "airports=subways" argument fails without further justification.

Of course, not all else is equal. Whether or not a particular search is reasonable depends on many other factors. In my view, it also depends heavily on the effectiveness of the search. As myself and others have pointed out, the random subway searches are unlikely to stop or deter a bomber. They're a lot more likely just to catch people with drugs, guns, and cash.
8.5.2005 5:18pm
Doug Sundseth (mail):
The problem with this sort of dismissive terminology is that it is used to obviate the necessity of actually making an argument, by implying or stating that no argument is necessary.

Several commenters here and elsewhere make statements of the form, "The ACLU is trying to prevent the government from keeping us safe." If you wish this to be persuasive, you'll have to explain how this policy might actually increase anyone's safety. As I see it, the tactical value of refusable searches of random persons before they can enter a subway is so low as to not be worthy of consideration.

If this analysis is correct, how could any such search be construed as "reasonable"? I note that failing to submit to such a search would result in exclusion from a public amenity that is otherwise open to any person with the fare. Since I consider this coercion, I would not consider such a search to be voluntary, at least as I would use the word.

I would hope that this argument (or others of this sort) wouldn't be construed as "frivolous", even if you disagree with it on its merits.

As noted in a previous thread, I have been a member of the ACLU, but left because I disagreed pretty fundamentally with some of its positions. The position referred to here is not such a position.
8.5.2005 5:23pm
Challenge:
Subways are more vulnerable because there is very little time to screen, question, and search passengers. Under your criteria, subways can have more searches than airports.

It doesn't matter how effective each attack is when these attacks can be conducted multiple times (see Spain where they killed 180 people in a single day). Moreover, you neglect the critical point that subways are MORE vulnerable because of the lack of time and in-place technology in comparison to airports.

Your knee-jerk reaction to defend the ACLU blew up in your face. I'm sorry if you think pointing out the holes in your argument is "putting words in your mouth."
8.5.2005 5:25pm
10ksnooker (mail) (www):
I would argue the most basic of rights, the right to live, is at stake. The ACLU is mistaken in their lawsuit because this is a WAR. There are multiple resoltions duly passed by Congress that authoirze the government to defend our country with all available means. Even though the leftist-MSM doesn't acknowlegdge that fact, a quick reading of the pertinent resolutions passed by both houses of Congress mean what they say.

When the country reverts back to a peacetime footings, I would expect that the extraordinary extra-Constitutional means needed now will be removed. Congress can easily pass the required resolutions when they deem the danger has past.

One WMD attack on the US homeland will put the torch to any arguments to the contrary. Right now we can't take the chances. Consider if a nuke were to go off in Chicago, the consequences would be off the charts.

I accept this temporary suspension of some rights to try and retain my right to life.
8.5.2005 5:26pm
Paul Gowder (mail):
Hear, hear. This is why I respect Eugene Volokh despite disagreeing with him on almost every major political issue (save the First Amendment ones).
8.5.2005 5:33pm
Mahan Atma (mail):
"Mahan Atma, that it is beyond you doesn't make it wrong."

Then perhaps you can explain it to me; I'm not that dense, after all.

Please tell me how "the right of the people to be secure in their persons, houses, papers, and effects" is any different from a (non-absolute) right of privacy in your person, house, papers, and effects?
8.5.2005 5:34pm
Mahan Atma (mail):
"Subways are more vulnerable because there is very little time to screen, question, and search passengers."

Please explain this assertion. What do you meant "there is very little time"? The government can make the time, can't it?

"It doesn't matter how effective each attack is when these attacks can be conducted multiple times (see Spain where they killed 180 people in a single day)."

Airplanes were used multiple times in one day on 9/11. If I recall, nearly 3,000 people were killed. Is someone going to drive a subway train into a skyscraper?

Seems to me it matters plenty "how effective each attack is."

"Your knee-jerk reaction to defend the ACLU blew up in your face."

Besides being inaccurate, that was a really, really bad pun.
8.5.2005 5:39pm
Challenge:
"Please explain this assertion. What do you meant "there is very little time"? The government can make the time, can't it?"

Are u kidding? OK, how early do you get to the aiport before your flight? Apply that to subways. Understand?
8.5.2005 5:42pm
Mahan Atma (mail):
"There are multiple resoltions duly passed by Congress that authoirze the government to defend our country with all available means."

Is Congress entitled to abrogate the Fourth Amendment without amending the Constitution?

By your logic, are there any limits on what the government can do in the name of war? Could we lock up all Arabs and Muslims, say?

"When the country reverts back to a peacetime footings, I would expect that the extraordinary extra-Constitutional means needed now will be removed."

That's never going to happen. Terror isn't an enemy, it's a tactic. What's more, our constant waging of unecessary war in countries like Iraq is simply creating more adherents to that particular tactic.

"I accept this temporary suspension of some rights to try and retain my right to life."


Any society that would give up a little liberty to gain a little security will deserve neither and lose both.
-Benjamin Franklin
8.5.2005 5:44pm
Justin (mail):
1) Snooker, do you really think that Al Queda is going to try to nuke a subway instead, of, ya know, lighting it off in an apartment downtown and letting the bomb do the work? A biological agent can do as much damage in Times Square. A chemical attack is unlikely to kill that many people, and is incredibly difficult to pull off for the effort (it's no shock that Japan's attack is the only one of major record, and the people of Tokyo are still riding the subway).

2) This is *not* a war. Iraq is a war. Al Queda is not Iraq. Saddam Hussein is unlikely to blow up a subway. Terrorism is an adjective. It cannot surrender, die, be extinguished, make peace, or win. We're not at war with terrorism, and we're not in any sort of active war with Al Queda. You can thank the President for that if you think that's somehow wrong.

3) The writ of habeus corpus is the only extra-constitutional grant of power. If the United States Senate knew that they would make the Constitution optional when they voted to go to war with Iraq, you would not have gotten 50+VP or more votes.

4) Challenger - as far as your sort of weak arguments that take advantage of the fact that the right to search at an airport has never been well explained by the Supreme Court, the difference is obvious. Most people can regularly prepare for an airplane search. These searches are not random in any real sense of the word. There is little to no discretion given in who to search. While a portion of the population takes airplanes on a daily or near-daily schedule in their legitimate business, the amount of people to small and the traditional concerns of the invasion of their 4th amendment right to remote to vindicate given the counterbalancing issues.

On the subway, searches will be random, limited in effectiveness, non-deterrant, will interfere with daily life of a vast majority of the affected geographic area, focus on the people whose 4th amendment right is naturally more at stake, and gives the police complete discretion over who to search and who not to search. Even given all the other arguments, the ACLU has a plausible case. Maybe, MAYBE not the correct one, but a frivilous one? Because 95% of Americans (and less than half of all New Yorkers affected by the rule) wouldn't mind? Oh, tragic.
8.5.2005 5:45pm
Mahan Atma (mail):
"Are u kidding? OK, how early do you get to the aiport before your flight? Apply that to subways. Understand?"

I get to the airport an hour early, so I can check my bags, etc. I usually sit around waiting about 45 mins for the damn plane. The only reason I get there early is because I don't want to miss the plane if there's a delay. But you can always catch the next subway train.

As far as security itself goes, it usually takes me about 10 minutes to get through security. Big deal. I care a lot more about my privacy then waiting in line for 10 minutes.
8.5.2005 5:49pm
Challenge:
"Challenger - as far as your sort of weak arguments that take advantage of the fact that the right to search at an airport has never been well explained by the Supreme Court, the difference is obvious. Most people can regularly prepare for an airplane search."

Uh, what the heck is this supposed to mean? Really? It's the lack of "preparation" time which makes subway searches unconstitutional? And you're calling my arguments weak? LOL

"These searches are not random in any real sense of the word. There is little to no discretion given in who to search."

Yes, they are random. Sometimes they are flagged by things like one way tickets, etc, but often the hand searches are random. You're just wrong.


"While a portion of the population takes airplanes on a daily or near-daily schedule in their legitimate business, the amount of people to small and the traditional concerns of the invasion of their 4th amendment right to remote to vindicate given the counterbalancing issues."

Uh, you're saying that it's OK to have one's rights violated as long as they're violated once or twice a year? Has the Court ever, ever entertained such a principle?
8.5.2005 5:54pm
Challenge:
So, Atma, are you arguing that subways be treated like aiports? People better get there an hour or two early, as to ensure they can make it through security. Are we really have this conversation?
8.5.2005 5:55pm
jstokka (mail) (www):
I think the anger at the ACLU stems from the nature of the organization and their selective protection of rights. Do they believe in and seek to protect the individual right to bear arms? No. Do they seek to stop random searches designed to prevent terrorist bombings? Yes. Apparently, the ACLU doesnt want the government nor individuals to be able to protect themselves.

Do they seek to protect the right of a public school teacher to wear a cross under the Free Exercise Clause? No. Do they seek to protect the Freedom of Speech of NAMBLA (MAN BOY LOVE ASSOCIATION)? Oh, of course.
8.5.2005 5:58pm
reader:
"Do they seek to protect the right of a public school teacher to wear a cross under the Free Exercise Clause? No."

Yes, they have taken cases defending religious necklaces in schools.
8.5.2005 6:13pm
jstokka (mail) (www):
smoke and mirrors
8.5.2005 6:15pm
=0=:
(Disclaimers: I live in NYC; this is back-of-the-envelope math; I originally posted this elsewhere.)

This is nothing but security theater and an excuse to catch the guy who forgot to leave his weed at home. If targetted 'randomly' for search, you're allowed to refuse the search and leave, so there's zero chance of finding a bomb.

So let's summarize:

- This wastes cop's time - they could be out doing something that actually improved security,
- It is an excuse to bust dumb/forgetful people,
- It conditions people to accept intrusive searches ("I'd stand up for my 4th amendment rights, but I'm running late.")

If you don't believe this is counterproductive, let's do some math:

Roughly 6 million people ride the MTA every day. If you assume a cop can shake people down at a rate of 2 minutes per search and can work nonstop, that's 240 searchs per cop-day. (The real rate is going to be lower than that, but this is a thought experiment. This means that for each 250 police, (roughly 1 work year of police effort per day), you can search slightly less than 1% of the ridership. Full coverage (search eveyone) would be 26000 cops, or 104 work years of cost per day. The wages + benefits of a first year cop in NYC averages $44000. Actual cost to the city is probably closer to $60000. (Couldn't find an average across all cops, but it is certainly higher.)

Think about that: for the cost of $60K per day, or $21.9 million per year, we reduce the chance of a mad bomber getting on the subway by slightly less than 1%. We don't catch them: they're free to leave and try again. (This doesn't count the cost of the time of people being searched.)

So, strictly aside from the issue of lost freedoms, does anyone think this is an economically wise approach to reducing the risk of terrorism on the subways? What else could be done to reduce the risk of terrorism with 1 work-year of police effort per day?

And even if we searched everyone (at a cost of $2.2 billion a year, in my back of the envelope figuring), all this does is encourage bombers to attack some other target. What now? NYC is, as they say, a target rich environment, with no way short of a full blown police state (if even then) to materially effect that fact.

I live in Brooklyn. I tend to view this as just another dumb waste of money, plus a CYA/appear to be seen Doing Something. (If a bomb goes off now, at least they can say they tried.) I'd rather they do something less intrusive and wasteful, and if someone asks to search me, I will refuse on principle.

I do wish, though, those who support this sort of thing would think critically about what sort of efforts actually will help - even if you set aside the loss of rights, this is a bad security measure. (And yes, it may be technically legal, but it certainly isn't following the spirit of the constitution.)
8.5.2005 6:28pm
jstokka (mail) (www):
In the case you cited, it looked like the ACLU was protecting the symbol not because it was a religous symbol, but because it was a possible gang symbol.
8.5.2005 6:30pm
EstablishmentClaus (mail) (www):
Jstokka,

No, the star of david is not primarily used as a gang symbol. No, a Jewish student would not be more likely to use the star of david as a gang symbol than a religious symbol. And the ACLU has stood up for Neo-Nazis and white supremacists and against campaign finance reform - the first is why I'm not a member, by the way. They're not a "liberal" or "conservative" group. They're also not just in favor of Constitutional rights; they're for broad interpretations of Constitutional rights at almost every opportunity. So are plenty of other reputable folks - our hosts, among others.
8.5.2005 6:39pm
Seamus (mail):
"Why is a subway different than an airport?"

Let's ask another question: how is a subway different from a sidewalk, or a roadway? I think the ACLU and its supporters are worried that if random searches on the subway come to be accepted, it will be a pretty short step to saying that if you drive on the highway, you have implicitly consented to a search of your car for explosives, or that if you choose to walk down a public sidewalk, you have implicitly consented to a pat-down. After all, no one forced you to use the road or the sidewalk, did they? You could always have come to work by private helicopter landing on the roof of your office building if your privacy was all that important to you.
8.5.2005 7:11pm
EstablishmentClaus (mail) (www):
Seamus,

Well, for SOME purposes (like drugs - see K-9 searches; Jay-Z actually deals with this pretty accurately in '99 Problems') we're already there. Traffic stops occupy something of an odd place jurisprudentially.

That said, you clearly refer to a major increase in police power, and I'm with you that it'd be dangerous. Mostly, I just wanted to be able to cite 99 problems for legal analysis.
8.5.2005 7:16pm
frank cross (mail):
The ACLU has fought cases to protect the rights of students to wear religious messages on their shirts, to wear hairstyles directed by their religion, to protect the rights of religious proselytization.

They may not fight for every right with equal vigor, but they are still fighting for rights. The Second Amendment defense groups are not fighting for every right, but that doesn't demean them.

And, as Eugene point out but has been scrupulously ignored, the ACLU is winning cases (if they don't they don't change public policy). Are you actually going to criticize a group for defending a position that proved to be legally correct? Any gripe here would seem to be with the judges, not the ACLU.
8.5.2005 7:53pm
jstokka (mail) (www):
Would you critisize a lawyer going across the country defending terrorists? How about child molesters?

I would criticize them whether they won or lost. I am criticizing them for their motive. I dont trust the ACLU's motive.

Are white supremacy groups criticized if they win a free speech argument? I hope so.
8.5.2005 9:08pm
frank cross (mail):
Nope, nope, and nope.
So I suppose you don't trust my motive.

But I can tell you that my motive reflects a belief in individual freedom and the U.S. judicial system, plus a certain modesty about my own ability to discern truth and morality.
8.5.2005 9:49pm
Johnny B. (mail):
So you think if you win a case, then the law is what you argued it to be?
So the ACLU wins cases because the law is written so that they WILL
win. The problem fails in several regards.

Lawyers sincerely believe that they don't write the law and aren't
involved in the process. This is as dangerous as it is wrong. It is
an attempt to absolve them of any moral obligation in their practice,
so when they vigorously defend pedophiles they can still feel like
they are in good standing at their church. There would be no Roe v
Wade if it wasn't lawyers that brought the arguments and fished for
the client. Lawyers are officers of the court, if courts "write" law,
it is because lawyers gave them which versions to write. Judges just
pick which version they want. More and more social and political
questions get decided in the courts instead of in the legislatures,
and that very much is the ACLU's doing and our nation's undoing.

The other problem is that the ACLU has money and not everyone else
does. Many people when sued by the ACLU gave simply for financial
reasons. If you don't have the money to fight a civil case, you lose,
regardless of the law. This is one huge way the ACLU gets their way,
simply by financial pressure.

Lawyers need to start accepting some moral responsibility in their
work and stop trying to absolve themselves and hide behind "their
clients". They have a responsibility to society that is higher than
that of their clients.
8.5.2005 10:20pm
Reader:
"Lawyers sincerely believe that they don't write the law and aren't
involved in the process."

No, "lawyers" do not. Your post is based on a false categorical premise that you pulled from thin air.
8.5.2005 10:59pm
Adam (mail) (www):
"The other problem is that the ACLU has money and not everyone else does."

The ACLU sues government entities. They all have money. The ACLU and its local chapters, generally, don't.
8.6.2005 12:19am
Mark (mail):
I'm not a big fan of security measures designed to make people feel safe without really doing much (and a number of things about air travel security strike me that way). But I think opponents of random searches in subways are wrong is saying they are or would be completely ineffective; the possibility of randomly selecting a bomber and either catching him or forcing him to abort that particular plan has some positive benefit to it.

Whether that benefit is adequate to justify the cost is a different question, as is the question whether the policy is constitutional. But there is a rational basis for it.
8.6.2005 12:40am
David M. Nieporent (www):
I'm not thrilled with the intrusive searches at airports, but at least one key difference between subways and airplanes should be clear: externalities. Terrorists on a subway kill other people on the subway. If you don't want to take the risk, you can avoid the subway. But as 9/11 demonstrated, terrorists on a plane can kill people who aren't passengers on the plane. You can't avoid the risk merely by avoiding planes that don't search passengers.
8.6.2005 3:15am
=o=:
Just to follow up on my own post on the economics of subway searches:

Taking the MTA, today, costs $2. My example above shows (more or less - the figures are certainly incorrect, but I don't think the order of magnitude is) the cost of the search-randomly policy, and the likely success thereof.

There are 19,190,115 (est.) people living in the area covered by the MTA. So, my previous estimate came to about $1 per day, for everyone, whether or not you used the subway.

Additionally, I looked at how many subway stops there are. The answer, if you don't want to click through, is 468. So, to have one cop in each station costs approaching on double what I described above.

Again, strictly from a utilitarian standpoint, is a 1% chance of sending a subway bomber off to another stop worth $44M a year? What other mechanisms to prevent terror could be enabled with that money?

(And now for a personal snark.

Lest anyone forget, NYC is nearly independent of the Heimlandtsicherhiestdienst, and on nearly every measure, better at it, self funding, and less paranoid. Hell, The DHS won't give us the cash they promised, so we did it ourselves. Not perfect, as this example shows. There are other inefficiencies - plainclothes sitting around in cars on obviously noncritical approaches to courthouses, cops in gear randomly at the foot of the Brooklyn bridge, "intelligence" agents asking questions at bars (I'm not kidding), etc.

But commentators from other states can, frankly, shove it - we've lived with this; you haven't. We know the risks we live with (and the rents). You get the subsidies, we're both the excuse and the wallet. When Tennessee gets a plane dropped on it, we can talk. Until then, sorry, but don't dictate what you think should happen on my subways. Yes, I'm a rude New Yorker. Bite me.)
8.6.2005 2:31pm
=o=:
Oh, I'm sloppy. (Egg on face.) I said,

There are 19,190,115 (est.) people living in the area covered by the MTA. So, my previous estimate came to about $1 per day, for everyone, whether or not you used the subway.


Obviously, that's a per-year figure. Yes, I feel like an idiot. The rest of the rant still stands, though, I think.
8.6.2005 2:42pm
Larry (mail) (www):
As a lawyer who rarely talks to non-lawyers, I find that attitudes of the lay people to be disgusting and simple-minded. Luckily, they don't control anything.

But you, Professor Volokh, seem to love the lay people. You feign surprise when the lay people use loosely-defined terms and don't even think about what they are saying. But, Professor Volkh, these people are the ones you have spent your public career pandering to, and for the most part you like it when they say oversimplified things that support your positions on guns and certain executive powers.

Of course you are right. The ACLU's positions that are ultimately accepted by a court are the law, and are not frivolous. People could, if they wished amend the constitution. But this isn't what the lay people care about. They care about deciding which soundbite to repeat, and your friends spend their time feeding soundbites to the lay people.
8.6.2005 3:47pm
jstokka (mail) (www):
You don't talk to non-lawyers, and yet you find their attitudes to be disgusting and simple-minded-- that, in itself, is simple-minded and disgusting. Are you really a lay person masquerading as a lawyer? Or do you mean that lawyers are the lay poeple. Your first sentence makes much more sense if that is what you mean. EXAMPLE: "I talk to lawyers, and I find their attitudes disgusting and simple-minded" makes much more sense than "I don't talk to non-lawyers, and yet I find the opinion of non-lawyers disgusting."

I still havent figured out why "accepted" and "frivolous" are mutually exclusive, and your simpled-minded comment certainly does not shed any light on that subject.

The only thing that should be mutually exclusive is admitting before the comma that you rarely talk to those of a particular group, and after the comma making a broad generalization about the very group you admit you never talk to.
8.6.2005 6:53pm
=o=:
Eugene - With the appearance of "Larry", I think we can now welcome you to the big time in the blog comment world. Welcome. You've got trolls!
8.6.2005 8:05pm
Beth (mail) (www):

As a lawyer who rarely talks to non-lawyers, I find that attitudes of the lay people to be disgusting and simple-minded. Luckily, they don't control anything.


That has to be the most asinine thing I've ever heard. All that tells me is that you, Larry, are sorely lacking in common sense.

I refrained until now from commenting upon this, because it's apparent that few care to listen to anything if case law isn't cited. Well, guess what. I'm not a lawyer, and don't care about digging in the books to give you those citations and case history. And neither are most Americans, and the last time I checked, it isn't only pointy-headed lawyers like Larry who get a voice in the government. I suspect Larry's heard a few too many lawyer jokes than his thin skin can take.

With that said, all I'm hearing is talk about the constitutionality of the case, and the ACLU's right to pursue it. Well, you have the right to file suit on this--or on NAMBLA's behalf, or others'--so why don't you defend NAMBLA or Nazis or any of the ACLU clients? My guess is that you have a moral compass, or at least I assume so.
So where is theirs? Obviously--yes, OBVIOUSLY--their moral compass (if there is one) is centered on issues that run contrary to pretty much everything most Americans believe in (or against).

WE KNOW the laws and in particular the judges are to blame, but exposing the motives and history of the ACLU is the point, so as to (maybe?) slow down their financial ability to pursue these cases. Jay (from Stop the ACLU) isn't a lawyer, and doesn't pretend to be one by arguing like one.

I've got an issue with this whole privacy argument; some people apparently confuse the term "privacy" with ANARCHY. Since when is law and order unconstitutional? If so, why do we have police at all?

I'll repeat another non-lawyer's comment above (I assume he's not a lawyer, since he's bluntly not parsing the minutiae of the legal code):

One WMD attack on the US homeland will put the torch to any arguments to the contrary. Right now we can't take the chances. Consider if a nuke were to go off in Chicago, the consequences would be off the charts.

I accept this temporary suspension of some rights to try and retain my right to life.

The only thing is, I'm afraid he/she is wrong about putting the torch to arguments to the contrary. SOME people just don't get it, and forget that reality actually does exist outside their theoretical practice.

I think most of you have lost common sense and are thinking only of the legal technicalities.

Go ahead and mock my (and others') lack of legal background; even though I'm just a "disgusting and simple-minded" American, I can handle it.
8.6.2005 8:50pm
Mahan Atma (mail):
"Well, guess what. I'm not a lawyer, and don't care about digging in the books to give you those citations and case history."

But you live in a society that is governed by laws and a Constitution, with a system of courts for adjudicating those laws. You can't simply ignore all that, or pretend that it's irrelevant.

Obviously, you don't like a lot of the things courts do. Well guess what, we all disagree with courts sometimes. That doesn't make it sensible to ignore them, or to wish they'd just go away.

If you don't like the results the court achieve, you have a remedy: Elect legislators who will change those laws, and amend the Constitution when the laws you want passed are unconstitutional.

"Since when is law and order unconstitutional?"

When "law and order" involves state actors violating the Constitution. Do you deny the existence of the Fourth Amendment? If not, you are forced to deal with the question of exactly what state actions violate the Fourth Amendment. In our system, that decision is up to the courts.

Care to propose a better system?
8.6.2005 11:03pm
EstablishmentClaus (mail) (www):
Beth,

Say you had a website devoted to analyzing how to make technical decisions requiring expertise in your chosen profession (let's say, for the sake of argument, it was nuclear physics). Say further that I barely passed a high school physics course, didn't take one in college, and hadn't thought about it since - until I fortuitously happened onto your site.

Say I then posted, saying "It's apparent that you physicists are sorely lacking in common sense. Look, I don't care enough to do all the equations to give you the math to back me up, but I say gravity doesn't exist and we're stuck to the Earth with silly putty." Would you think I was being a) productive or b) respectful of your chosen profession as my host?
8.7.2005 12:47am
Bruce Hayden (mail) (www):
Not commenting on the searching, but on Eugene's comments on civility.

Eugene a couple of years ago jumped on me in some discussion (listserve?) group about my lack of civility - or probably the use of an ad hominum attack. He was right. I appoligized. And have tried thereafter to be civil, knowing that uncivil comments and ad hominum attacks are, in the long run, counter productive, no matter how good they feel at the time.

I followed the link that day to this blog, and, then later, to much of the rest of the blogosphere. And through it all, Eugene has been a pillar of restraint. Never a personal attack. Ever.

Keep it up.
8.7.2005 1:46am
Beth (mail) (www):
Mahan and EC: My vitriol is reserved for LARRY, who apparently believes that non-lawyers are too stupid to be allowed an opinion on anything. I didn't say ALL lawyers are sorely lacking in common sense, I said LARRY is, and I did say that most of you have lost some common sense, in the sense that you're not seeing the forest for the trees.

I don't shirk laws or the courts, and I said I'm fully aware of my options as a voter and semi-activist. I absolutely do not think that such activism is restricted to those who can or care to cite case law, though. I freely and confidently assure you that I can't, and I frankly don't plan to start that long journey for the purpose of a blog comment that merely states my opinion.

All I'm saying is you all are hitting the other blog with legal-speak, and if you want to engage those who don't speak your language (i.e. Jay from Stop the ACLU, where this started), then be willing to address it respectfully. I'll be honest, I'm put off by what I've read in these comments and those of the previous post because it appears that many (no, not all--many) have the attitude that our--the "laypeople" (rolling eyes)-- opinions aren't valid because the only JD we have comes in a bottle. Which could be excused, if we all started hanging out in comments for no reason and starting arguments, but remember, he (Jay) and the rest of us "laypeople" came because in a sense, we were invited--or at least Jay was by virtue of the post.

Now as far as the Fourth Amendment is concerned, obviously no one's denying its existence. I also don't deny the existence of 49 U.S.C. § 44901 (there, I cited one for you), which leads me to believe in my untrained "layman's" mind that searches on subways would be no different constitutionally.

I'll add that I fully support the Patriot Act, and I suspect many if not most here (in comments) do not. I'm not going to waste my time arguing it here, because I don't expect to change anyone's mind with a blog comment, either. But just so you know, that's why I say "law and order" as opposed to what I perceive a push for lawlessness and a diminished national security in current times in the name of "privacy." Someone said in the other post's comments something about "show me where it says the government has to provide for security" or something similar, and I frankly had to laugh. That's just one person, but it seems pretty close to what the ACLU and others push. Basically, I guess we're going to have to agree to disagree if that's the case, but just because my expertise isn't in the law doesn't mean my opinion is invalid--and believe me, I've got plenty of opinions.
8.7.2005 3:47am
Larry (mail):
Beth, You seem to have a lot of anger at me, the ACLU and othes. Many lawyers only associate with other lawyers, because, quite frankly, we find the lay people to be annoying. Sure, we will give them a few buzzwords from time to time, but because most of you are utterly incapable of reading and comprehending anything of any complexity or length it is a lost cause. Sure, there are exceptions. But, for the most part, it isn't worth the risk of finding someone like you who talks about court opinions without reading them, on the off chance I might meet a real American who knows how evil it is to do that.

You should be angry. It is cute. But you should take vindicate you anger by going to law school like the real Americans did.

As I said, I don't normally find non-lawyers worthy of my time. But, I figure I owe you a couple of explanations.

First of all “common sense” is anything you or I want it to be. Any decision can be justified on that grounds. This is a rhetorical device employed by non-lawyers which means nothing. (Again, this is why I don't associate with your type.)

Since we were discussing constitutional law, it seems somewhat odd that you declare that you don't care about even understanding what the discussion is. You said “I'm not a lawyer, and don't care about digging in the books to give you those citations and case history. And neither are most Americans, and the last time I checked, it isn't only pointy-headed lawyers like Larry who get a voice in the government. I suspect Larry's heard a few too many lawyer jokes than his thin skin can take.” This proud ignorance won't advance the conversation. I know it is more important to you to watch TV. But, fine. This is why just about everything you said in your post is a soundbite invented by lawyers for you people.

You have no idea who my clients are. So, I don't see why you assume that I have not represented NAMBLA or one of the ACLU's many clients. I don't know why you said this.
8.7.2005 10:29am
Matthew G.:
I'm a New Yorker, ACLU contributor and 3L. My sentiment is that the searches are constitutional, just stupid. They're an administrative search with a primary purpose of public protection, not law enforcement, so I'm fine with them.

But riding the subway as I do every day, I see these search stations only very rarely, and there's a big sign telling you that you are free to turn back if you don't want to be searched. If anyone actually wanted to bomb the subway, all he'd have to do is send a scout in to a particular entrance, see if there are officers, and then head in. If there were search points at all or even most stations, it might do some good.

There's no constitutional problem here for me. But the argument that the ACLU is "denying us our fundamental right not to be blown up" is just silly, because these "searches" are the laughingstock of New York.

I give money to the ACLU because I admire its consistency. They care only about defending legal positions they believe to be correct and not who their clients are. That strikes me as principled. As the comments on this thread show, the ACLU is utterly unconcerned with being popular. Its only real client is the Constitution, and that's why in recent years a number of conservatives have turned to the ACLU and assisted it in its court fights.

So although I differ with the ACLU on the constitutionality of these searches, in my opinion the lawsuit is neither frivolous nor harmful.
8.7.2005 2:32pm
Anonymouse (mail):
The ACLU is Al Qaeda's outside counsel.

Not fair or honest? Over the past few years, lawyers for the ACLU have represented known members of Al Qaeda on multiple occasions in clear attempts to restrict our ability to hold them. This isn't a case of representing the KKK's right to leave the trailer park and march down the street in full jackass regalia, this is an American organization representing THE ENEMY during a time of war.

So, is it unfair to say that the ACLU is the enemy's law firm? Guess what, I'm a practicing criminal defense attorney, and even I think that representing those folks is pretty much the definition of treason.
8.7.2005 3:09pm
bt (mail):
As I am not a lawyer, I am glad that I am not one of Larry's clients.
8.7.2005 4:31pm
WHOI Jacket:
Larry,

I am a scientist. I graduated magna cum laude from Georgia Tech with a degree in Earth and Atmospheric Sciences. I am currently pursuing a Ph.D in Oceanography from MIT. I've taken classes on Physical Climatology, Paleoclimate, Oceanography, Earth Systems Modeling, Inorganic Chemistry, Aquatic Chemistry, Marine Chemistry, Stable Isotope Chemistry, Physical Hydrology, Organismal Biology, Environmental Field Methods, Atmospheric Chemistry, Groundwater Hydrology, Meteorology, Geophysical Earth Processes and numerous more.

I'll be watching to see that you never comment on global warming/climate change, water quality issues, bio-diversity, air quality, industrial emmission restrictions, chemcial issues and pollution in general.

After all, you, like other "non-scientists" are sooo boring and beneth me.

Do your clients know that you have this opinion of them?
8.7.2005 4:32pm
Ciarand Denlane (mail) (www):
Uh, guys, "Larry" is pulling your legs. I know a fair number of lawyers, and none of them actually thinks like that (although, I suppose, some have tendencies in that direction, which is why "Larry's" satire works well enough to be taken as seriously meant statements).
8.7.2005 5:04pm
Adam (mail) (www):
Over the past few years, lawyers for the ACLU have represented known members of Al Qaeda on multiple occasions in clear attempts to restrict our ability to hold them.

Known by whom and proven in what forum? That's the whole point.
8.7.2005 5:09pm
BSG:
Professor Volokh suggests that "[l]abeling [a] position with epithets that it doesn't deserve is, I think, on balance ineffective, since it undermines your own credibility."

Perhaps it would be valuable to discuss that "balance". There must be lots of reasons why it is effective, or otherwise it wouldn't be so popular. Here's a few.

First, it is efficient for the person making the argument. It takes far less time to articulate "Bush is a Nazi" than it does to make a cogent argument that Bush's policies are bad.

Second, it is efficient for the person hearing the argument. It takes far less time to hear - and understand - "Bush is a Nazi" than it does to listen through a complex explanation why a particular policy is bad.

Third, the epiteths can have the effect of getting people to agree with you ain the long run. Sure, in the short run the epiteth might turn some people off. But in the long run it can be effective. Within the neo-Nazi and Islamic community, for example, all one has to do is label an opponent as Jewish and they've won the argument.

I can go on and on. But what greater proof do you need than the popularity of using epiteths as an argument? Clearly it works well.
8.7.2005 5:35pm
Mark Delles:
Loser pays. Then let the ACLU flail away.
8.7.2005 7:09pm
Matthew G.:
Anonymouse, even the Nazis at Nuremburg had lawyers. Part of maintaining a civilized society is following the rule of law even for those who deserve nothing of the sort. When "practicing criminal defense lawyers" suggest there are people who don't deserve counsel, the rhetoric of war has gone a bit too far.
8.7.2005 8:23pm
SydneyCarton (mail):
Larry is the reason why people hate lawyers. Merely getting a law degree doesn't make one an appointed Prince. As a lawyer, I'm GLAD that people distrust the legal profession. It should keep them honest. I have no use for elitism from the bar or from the bench.

I never take a pro-bono client I disagree with, I don't leap at opportunities to destroy American traditions and defend America's enemies. I will not weap if the ACLU is virtually tarred and feathered by the majority of the people.

Anyway, Larry's problem isn't that he's a lawyer. It's he's a relativist, who believes that words can mean whatever he wants them to mean. He wrote: "First of all “common sense” is anything you or I want it to be. Any decision can be justified on that grounds."

That is, plainly, an idiotic statement. ANY decision can be justified on that grounds? Oh really? Well, perhaps decisions can be justified on those grounds to a pointy-headed recluse who never talks to people outside his social sphere and thus is ignorant about the mores and values of the large majority of the populace, but to REAL Americans common sense is pretty basic. The man admits his own ignorance at the wider world, and has the gall to state that he and his kind are the only people who can run things? That kind of huberis would be comic if it weren't an ongoing tragedy currently being played out.

I'm a lawyer, Larry. Care to deal with my criticism?
8.7.2005 8:52pm
Matthew G.:
You say "I never take a pro bono client I disagree with." Does that mean "I never take a pro bono client I think is a bad person" or "I never take a pro bono client whose position would require me to make arguments I believe are legally incorrect," or both?

If the first, or both, I don't think that's relativism. In fact, it's the opposite. If one is a legal objectivist, then it shouldn't matter who one's client is, only whether you're making arguments you consider correct.
8.8.2005 1:09pm
Larry (mail) (www):
SydneyCarton,

Oh, so people hate lawyers? Most of everything I see on this blog is just repeating what some lawyer told them to say (in this case, the loser of a lawsuit). Likewise, the number of applications to law schools keep going up, as do salaries for lawyers. If people really hated lawyers that much, law schools would be closing up shop.

As to common sense, this term, itself, means absolutely nothing. “common sense” is whatever the speaker claims it is. Now, if you were willing to provide a definition of common sense we could argue that some legal resolutions are “common sense” and some are not “common sense.” However, since nobody provides such a theory of “common sense” it is merely a rhetorical device meant to justify one’s own position.

You claim it is “basic” but you don’t offer a definition. I don’t think you can define your terms.

Indeed, the lay people will claim that a given legal decision does not follow “common sense.” Usually they were unable to read it. However, without exception, any decision (that I agree with or not) can be justified by showing several intermediate decisions, each of which can be argued to be “common sense” if viewed in isolation. (This goes for internment of Jews and Japanese people, gay marriage, and even the constitutionality of mandatory abortions.)
8.8.2005 1:37pm
Larry (mail):
Thank for your the definition of "common sense."
8.10.2005 9:00am