You may have daydreamed about it: some forgotten constitutional provision, combined with an obscure statute, that together make it possible for people in the know to commit crimes with impunity. Whether you were looking for opportunities to commit crimes or afraid that somebody else was, the possibility of a constitutional “perfect crime” was too compelling to ignore. This Essay represents the fruits of my own daydreams, combined with the fact that lately I have spent my lucid moments mulling over one particular forgotten constitutional provision: the Sixth Amendment’s vicinage requirement.You can dowload the paper here.
The courts may or may not agree that my loophole exists, and in any case this Essay is not intended to inspire anyone to go out and commit crimes. Crime is bad, after all. But so is violating the Constitution. If the loophole described in this Essay does exist it should be closed, not ignored.
Saturday, March 26, 2005
Friday, March 25, 2005
An interesting-seeming new scholarly paper.
Freeman also defended assigning Hall, a 5-foot, 51-year-old woman, to guard Nichols, a muscular, former college linebacker. Freeman said the deputy had transported "murderers, convicted felons, rapists" on numerous occasions and had been a "long-term employee" who did "an excellent job." "You can't discriminate based on gender," Freeman said. "A deputy sheriff is a deputy sheriff."
Granted, but you can and should be able to discriminate based on physical abilities, and Hall, who was overpowered by Nichols, almost certainly wasn't physically competent to guard an unhandcuffed former linebacker.
At last night's Purim schpiel (satire) at Washington D.C.'s largest Conservative synagogue, Adas Israel, the story line was that the evil Chancellor Haman of the "Persian Institute of Technology" had decided to do away with a "woman in science" fellowship because he believed that women lacked competence in the sciences. Poor Esther had to give up her dreams of a career in science and instead enter a beauty contest to become Queen. Eventually (and this all took place in between reading chapters of the traditional megillah), the evil Chancellor Haman is vanquished and instead of becoming queen, Esther becomes the King's chief science adviser and reinstitutes the women in science fellowship.
Even worse, though much shorter in duration, was the joke made about the "thickness" of Red state voters. The Summers' parody was just a stupid aping of political correctness, while the red state joke (unaccompanied by any "Blue state" humor, much less obnoxious blue state humor) was simply obnoxious and disrespectful to congregants who disagreed with the majority sentiment in the room.
On the other hand, I managed to inject some levity, at least for my wife and me, by vigorously spinning my grogger (noisemaker) at the mention of Hilary Clinton, an "honor" usually reserved for the evil Haman.
A realtor quoted in the New York Times: "South Florida," he said, "is working off of a totally new economic model than any of us have ever experienced in the past." Shades of the "new economic model" that jusified a Cisco P/E of 180 at the height of the NASDAQ bubble.
Around these parts (D.C. area), I've heard all sorts of explanations as to why stratospheric local housing prices (despite stagnant rents) are justified. None of them take into account the fact that prices have risen as much or more in South Florida, New York, Boston, L.A., the Bay Area, etc., not to mention Sydney, London, Brussels, Rome, etc. Clearly, it's a liquidity-driven bubble, resulting from an easy money policy instituted by world central banks. The post-Russian bond market default of 1998 caused a monetary easing, which inflated prices of securities (a form of inflation); before that liquidity bubble could be completely undone, 9/11 caused a new easing, with the inflation going into real estate instead of securities. (If rising home prices were really housing demand-driven, as real estate bulls insist, rents would be rising along with housing prices.)
And I don't know how many times I've heard that "prices may stagnate, but you won't lose money." In 1988, a man drove up to my parents' house in Queens, and offered my father 500K, cash, for the house. Four years later, it would have been difficult to get $325K [still more than before the great housing boom of the '80s, but cold comfort if you got in at the top] for that house, and it wasn't worth 500K again until 2001.
UPDATE: For what it's worth, my father intuited that this offer suggested a market top, but told me at the time, "I'm not ready to retire and move to Florida, and any other house I buy in the area will also have an inflated price, so I'll just stay here." He, did, on the other hand, acting as president of our local synagogue, sell off the synagogue's parking lot to a real estate developer who built $650K houses. That developer was soon bankrupt, and the synagogue, with a much-dwindled membership, is now living off the money it received from that transaction. I'll be bold enough to predict that we are at or near (within a few months) of a market top now. And if you don't believe me, my dad sold off his REITs this week!
SSRN has just posted the list of the top 50 Law Authors as measured by downloads, and yours truly has eked onto the list, along with a couple of co-conspirators.
Note that if you click around, you can order the rankings in a variety of different ways--the order given below is of total downloads for all papers, all time (you can also rank it by downloads in the past 12 months, for instance, which is the way SSRN distributed it in its email).
As one of my colleagues recently confessed, "I'm not sure that numbers like this tell us much, but I do love my downloads." In that spirit, a list of my personal papers can be found here.
TOP 50 AUTHORS IN SSRN's TOP 1,000 AUTHOR LIST (BETA)--Total Downloads for all papers, all time:
7 Coffee Jr.,John
8 Donohue III,John
48 Viscusi,W. Kip
It turns out that the Duke Law Journal also posts all its articles online, and also has back issues starting with March 1997. Good work for them; I was about to say that they beat the Virginia Law Review, about whose excellent site I blogged yesterday, but really both of them are beating everyone else.
Thursday, March 24, 2005
For complex reasons, I had occasion to look up the biography of this fellow, who is generally said to be the first unambiguously Jewish Senator in U.S. history (UPDATE: for the ambiguous one, see here). It turns out that it's even more fascinating than I'd heard:
By 1852, Benjamin's reputation as a eloquent speaker and subtle legal mind was sufficient to win him selection by the [Louisiana] state legislature to the U.S. Senate; he took office on March 4, 1853. During his first year as a Senator, he challenged another young Senator, Jefferson Davis of Mississippi, to a duel over a perceived insult on the Senate floor; Davis apologized, and the two began a close friendship.
He quickly gained a reputation as one of the great orators of the Senate, and in 1854 Franklin Pierce offered him nomination to a seat on the Supreme Court, which he declined. He was a noted advocate of the interests of the South, and his most famous exchange on the Senate floor was related to both his religion and the issue of slavery: Benjamin Wade of Ohio accused him of being an "Israelite in Egyptian clothing," and he replied that, "It is true that I am a Jew, and when my ancestors were receiving their Ten Commandments from the immediate Deity, amidst the thundering and lightnings of Mt. Sinai, the ancestors of my opponent were herding swine in the forests of Great Britain." [UPDATE: Several people tell me that a similar quote has been credited to Benjamin Disraeli. I take no position on this important dispute.]
He was again selected to serve as Senator for the term beginning in 1859 . . . [and] resigned his seat on February 4, 1861, due to the secession of Louisiana from the Union. . . .
Davis appointed Benjamin to be the first Attorney General of the Confederacy on February 25, 1861, remarking later that he chose him for the position because he "had a very high reputation as a lawyer, and my acquaintance with him in the Senate had impressed me with the lucidity of his intellect, his systematic habits, and capacity for labor."
In September of the same year, he became the acting Secretary of War, and in November he was confirmed in the post. He became a lightning rod for popular discontent with the Confederacy's military situation, and came to quarrel particularly with the Confederate Generals P.G.T. Beauregard and Stonewall Jackson. The criticism came to a head over the loss of Roanoke Island to the Union without a fight in February 1862. Rather than publicly reveal the pressing shortage of military manpower that had led to the decision not to defend Roanoke, he accepted Congressional censure for the action without protest and resigned his position. As a reward for his loyalty, Davis appointed him Secretary of State in March 1862. . . .
In the immediate aftermath of the end of the war, an unfounded rumor, tinged with anti-Semitism, that Benjamin had masterminded the assassination of Abraham Lincoln through his intelligence apparatus became popular. Fearing that he could never receive a fair trial in the atmosphere of the time, he burnt his papers and fled to England under a false name.
In June 1866, he was called to the bar in England, the beginning of a successful and lucrative second career as a barrister. In 1868, he published Treatise on the Law of Sale of Personal Property, which came to be regarded as one of the classics of its field. . . .
I should say that I've never been big on deriving ethnic pride from the successes of fellow Jews, just as I don't think people should feel responsible for the misconduct of those who have shared their ethnicity. If I had derived such pride, I wouldn't derive it from Benjamin, because of his role in trying to maintain the slave-owning regime. (I don't know enough about the man to know how much moral condemnation he deserves, but I know enough to conclude that he doesn't deserve much praise.) Still, it strikes me as a very interesting story.
UPDATE: Mark Kleiman has more on pride in people who share one's ethnicity.
The American Bankruptcy Institute has a special section of its web page set up to track the progress of the Bankruptcy Reform Legislation and to explain its terms. ABI Resident Scholar Jeffrey Morris is contributing some of the content (I reckon when he signed up for this gig he was expecting a nice quiet semester to get some work done...).
According to Wikipedia, it is "an extreme sport in which people take an ironing board to a remote location and iron a few items of clothing." "EI supposedly combines the excitement of an extreme sport with the satisfaction of freshly ironed clothes." Most importantly for our intelligently skeptical readers, "Though it seems a parody or hoax, many extreme ironers take their sport quite seriously."
Thanks to my friend Claire Hill for the pointer.
Seems like they are; their life expectancy at birth is 2.4 years higher for men and 3.6 years higher for women. My intuitive assumption was that it should be a little less than for non-Hispanic whites, since Hispanics tend to be poorer than non-Hispanic whites. Yet obviously my intuitive assumption is wrong.
I'm genuinely curious about this — if anyone has actual demographic or medical knowledge on this subject (as opposed to just seat-of-the-pants speculation), I'd love to hear it.
Thanks to Slate for the pointer.
UPDATE: Could it just be that they smoke less (16.7% vs. 23.6% for non-Hispanic whites)? On the other hand, Mexican-Americans are more likely to be overweight or obese than non-Hispanic whites. I've seen no statistics for non-Mexican-American obesity.
FURTHER UPDATE: Reader Gabriel Rossman tells me there's a name for this — the Hispanic Paradox. Here's a Washington Post article on the subject, with some conjecture; and here's the academic article that the Post seems to be discussing. Here are the conclusions:
1. The Hispanic adult mortality advantage is not "Hispanic." Rather, it is a feature only of foreign-born Other Hispanics and foreign-born Mexicans — not of Puerto Ricans or Cubans, whether born in the United States or abroad.
2. The foreign-born Mexican and Other Hispanic adult mortality advantage is not trivial. It amounts to experiencing mortality rates that are 35% to 47% lower than those experienced by non-Hispanic whites. In turn, these differences translate into approximately five to eight years of additional life expectancy at age 45.
3. The behavior of mortality slopes produces strong signs of return-migration effects [i.e., that when immigrants are seriously ill they go back to their home country] for foreign-born Mexicans but not for Other Hispanics. . . .
4. The observed advantage favoring Other Hispanics persists even after indirect consequences of healthy-migrant effects (duration of stay, state of residence) are accounted for and is resistant to age and slope effects, as well as to unmeasured heterogeneity. This does not mean that healthy-migrant effects [i.e., that healthy people are more likely than sick people to move here] are absent, but that, if they exist, they are not reflected strongly enough in the mechanisms we were able to identify (duration or residence effects).
5. The cultural hypotheses received no support. We uncovered effects suggesting that those who live in ethnically more cohesive communities have lower mortality, as one would expect from the cultural hypotheses. But these conditions do not account for the Hispanic advantage, nor do they alter the effects of membership in a group. It is not because foreign-born Mexicans or Other Hispanics have a higher propensity to live in cohesive communities that they experience lower mortality than do non-Hispanic whites. And it is not because there are extra gains accruing from residence in those communities among some Hispanics that there are mortality advantages.
This has been a partially successful exploration of the problem. We were able to justify a model that accounts for part of the advantage and attribute it to return-migration effects. However, the preferred model that spawned this interpretation neither rests on robust, uncontested grounds nor is complete, since part of the advantage — the part associated with Other Hispanics—remains thoroughly unexplained.
ANOTHER UPDATE: A demographer-lawyer reader writes that "The reasons for mortality differentials by race (and Hispanic ethnicity) are not well-understood, and there is a great deal of debate about it. However, there are reasons to think some of these differentials are due to data problems and differing methodologies." He points to this page for the technical background on the numbers quoted by the Slate article.
It takes two incidents, right? (One anecdote is data, two are a trend, three is proof.) I pointed Monday to Howard Dean's remarks about "brain-dead" Republicans, which either means he's saying the voters are brain-dead, or the people for whom the voters voted are brain-dead (even though they beat Dean's party handily at the federal level). Not the savviest political move, it seems to me.
Now a second politician is doing it: My fair city's own District Attorney Steve Cooley, who is quoted as saying that the jurors in the Robert Blake trial were "incredibly stupid." Yup, that will make voters feel really good about you: When you lose your case, you publicly blame citizens like them. Doesn't show a great ability to understand how your audience is going to react to your words, it seems to me. And, curiously, an ability to speak carefully and in a way that doesn't alienate your audience is a pretty important skill for a lawyer.
UPDATE: John Steele at Legal Ethics Forum discusses whether Cooley's comments violated legal ethics rules. I don't think they do, but given the political cost of such statements, I don't think there needs to be (or ought to be) any extra formal sanction for them.
by the German magazine Stern. The magazine ran a photo display s comparing various parts of American life (Democrat vs. Republican, Left vs. Right, Cynical vs. Romantic); for Black vs. White, the white is a Florida retiree and the black is Charles Ezeb, a felon serving a life sentence.
The display, as Medienkritik points out, seems aimed at showing Americans generally, or perhaps American conservatives, in a bad light. (These sorts of quote-picking exercises tell you more about the biases of the authors, and which quotes they wanted to pick, than about what the public actually thinks.) But the black vs. white item is just a shocker quite independently of that.
Oh, and check out Ezeb's quote:
"The USA is a pretty rotten country viewed from in here."I'm quite happy to believe that the Angola pen is a pretty rotten place, and even more rotten than it should be. But, say, Ezeb, what did you do to get that life sentence? Might you have been helping make the U.S. a worse country for the people around you (most likely especially for the black people around you, given that most U.S. homicide is intraracial, as is most other violent crime)?
-- Charles Ezeb, serving life in the Louisiana State Penitentiary, Angola, Louisiana.
Makes one even more curious why Stern would choose this particular man for their black vs. white comparison, no?
(Incidentally, I did google, newspaper, and caselaw searches to see if I could find more about Ezeb's conviction; I found no information but also no evidence of any controversy about whether Ezeb may have been wrongfully convicted. As best I can tell, he's likely a pretty serious criminal who's rightly been locked up for his crimes.)
The new Title IX policy is drawing fire from both expected and unexpected quarters. Sports Law Blog has a round up here. Feminist groups are predictably upset with the change because it will, in their eyes, reduce the pressue for proportionality in university athletics. Apparently the NCAA is not too pleased with the change either.
The potential use of online surveys seems to be a big sticking point. Some critics of the policy note (rightly) that online surveys are notoriously susect means of gauging public sentiment. USA Today's Christine Brennan fears the use of surveys will water down Title IX. Here's the response Sports Law Blog's Greg Skidmore:
if you have enough of an interest to play a varsity sport, you also should be able to answer and return a survey. The federal government should ensure that universities do not avoid high answer rates through conspiratorial procedures, but barring this, online surveys are the wave of the future.That sounds about right to me. Part of the problem with online surveys is that they don't get an unbiased sample of respondents. But that's not a problem here insofar as the surveys are trying to measure the depth and intensity of demand for greater female athletic opportunities. Given all of the problems the old rules seem to have created, it seems to me this new, more flexible policy is worth a shot (assuming, of course, the federal government should have much to say about college athletics in the first place).
Received the following email from SSRN (Social Science Research Network) Today:
SSRN is pleased to announce a new service: We now list Top Law Schools based on downloads from SSRN's eLibrary. This list will be revised monthly.
The Top 20 Law Schools as measured by downloads of their faculty's papers from SSRN over the last 12 months ending March 1, 2005 are:
SSRN TOP 20 LAW SCHOOLS (BETA) [law school homes of Volokh Conspirators are in bold]
1 Harvard University - Harvard Law School
2 Stanford Law School
3 University of Chicago - Law School
4 Columbia University - Columbia Law School
5 University of California, Los Angeles - School of Law
6 University of Texas at Austin - School of Law
7 George Mason University - School of Law
8 University of California, Berkeley - School of Law (Boalt Hall)
9 Yale University - Law School
10 University of Virginia - School of Law
11 George Washington University - Law School
12 Georgetown University Law Center
13 New York University - School of Law
14 Vanderbilt University - School of Law
15 University of San Diego - School of Law
16 University of Pennsylvania - School of Law
17 University of Illinois at Urbana-Champaign - College of Law
18 Boston University - School of Law
19 University of Michigan at Ann Arbor - Law School
20 Fordham University - School of Law
More complete data can be found on the SSRN website (registration required).
Obviously, there are some vagaries in the system: schools with bigger faculties have an advantage over smaller schools, schools with a higher participation rate in SSRN have an advantage over schools with less participation, and one extremely well-cited paper can significantly increase a school's standing. On the other hand, unlike, say, Brian Leiter's citation counts, this system rewards rather than punishes school with active but relatively junior faculties. In any event, without endorsing the particular order above, the top 20 on the SSRN list seems awfully close to the schools that I'd think have among the twenty best faculties in the country.
[A]nyone trying to argue that Congress did not make its intent clear . . . are asking their readers to disbelieve what nearly every commentator has either praised or condemned over the past few days — that Congress intervened on behalf of Terri Schiavo with the intent of restoring her care during the interim period when a federal judge could review her situation de novo. Straining to see other than judicial contempt for that effort is just not persuasive. . . . [H]ere there is only judicial contempt for the coordinate branches blended with cowardice that compels absurd arguments about what Congress did and did not intend.I'm afraid Hewitt misses the point. The key question is not what Congress intended, but what Congress actually did. Judges are not tasked with following the reasons why "nearly every commentator" has "praised" or "condemned" legislative proposals. As I see it, their job when interpreting statutes is to read the law that Congress enacted and to do what that law and existing precedent tell them to do. As Justice Holmes explained, "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, Collected Legal Papers 207 (1920).
Orin should answer the question: Did Congress intend Terri Schiavo to die before a de novo inquiry into the circumstances surrounding her condition was complete?
Of course, there are different views on the role of text and legislative intent in statutory interpretation. Some people think that courts should follow the text and the text alone; others think that the courts should follow text as informed by legislative history; still others think that the courts should follow text as infomed by context or the apparent purpose of the legislative action. This is an interesting and complex debate, and not one we can resolve here. I think it's fair to say, however, that the mainstream of legal debate today presumes that a judge's job is to follow the language of the law the legislature actually enacted as at least the primary guide to interpreting statutes, rather than the statements of individual legislators or commentators. The reason for the importance of text is simple democracy: the Constitution sets out very specific rules for enacting laws, and the job of the courts is to interpret laws validly enacted pursuant to that constitutional scheme. Following the text ensures that the courts obey the laws that Congress actually enacts, rather than the laws that some legislator or commentator hoped to enact but lacked the political support to enact.
The problem with having courts follow the statements of individual lawmakers and commentators is that their views are not subject to the constitutional lawmaking processes. Being outside of the lawmaking processes, these individualized expressions of intent cannot provide a sound standard for interpreting statutory commands. Legislation is usually the product of compromise, and different legislators and commentators have different goals, hopes, and aspirations. Following the expressed views of any one individual or faction would allow that person or group to bypass the Constitutional lawmaking process and get their version of what they hope or wish the law did enacted into law without being subject to the Constitution's requirements. The Supreme Court expressly counseled against this in Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001):
We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal--even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes.A sensible approach, I think.
Hewitt ends his post by giving me an assignment: "Orin should answer the question: Did Congress intend Terri Schiavo to die before a de novo inquiry into the circumstances surrounding her condition was complete?" The truth is, I have no idea. I don't know who Congress is, or who to ask to find out what this Congress person thinks. I don't know what kind of deals were struck and compromises reached behind closed doors that led to the legislation that passed. I have no idea whether the legislators who expressed views on the record as to what they expected the legislation to do were a) accurately reflecting the sense of most legislators; b) merely expressing the intent of a number of legislators; c) only articulating the hope of a few; or d) simply trying to please particular interest groups by stating the law they supported would achieve a particular result even though they knew the law would do no such thing. My point is that it doesn't matter which of these is true. The law is the statute that Congress passed, not the expressed intent of particular legislators or articulated understandings of particular commentators.
Finally, given that Hewitt ended his post with a challenge for me, permit me to end with a challenge for him: Hugh should say whether he thinks that the plaintiffs in the Schiavo case have a winning case on the merits, and if so, on what specific constitutional or statutory grounds.
Wednesday, March 23, 2005
The Democracy Project has read a draft version, and likes them; among other things, it praises this section:
No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.
Now it's hard to tell for sure without reading the full proposal, but doesn't this seem quite narrow? I'm typing this on a UCLA computer right now; I don't personally own it. (I think UCLA doesn't object to academics using their office computers for drafting election-related materials, but let's set that aside for now; I'm sure that many universities permit such activity.) The material is being posted on a PowerBlogs host, which I also don't personally own. If the Conspiracy were organized as a corporation — as are most newspapers and magazines — that owned the computers and let the bloggers use them, then I wouldn't be using a computer that I personally own, either. Likewise if I were to blog
from an Internet cafe, or from a friend's house, or from an office at a school at which I'm visiting.
I hope the FEC doesn't really mean to limit the rule to people who do their own hosting, and who compose everything solely on computers that they themselves own. And perhaps in context the final proposed rule will make that clear. But as written, this particular paragraph offers little cause for rejoicing.
UPDATE: The proposed rules can now be read in their entirety; the relevant part reads:
No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.This means that there's no problem with blogging from an Internet cafe, which is why I struck out that example above. But my other examples remain.
(2) No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services available at any public facility for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee. The term “public facility” within the meaning of this section shall include, but is not limited to, public libraries, public schools, community centers, and Internet cafes.
(3) No contribution results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services in his or her residential premises for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.
Their essay is available for download here; here's the abstract (paragraph breaks added):
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death.
Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent.
The familiar problems with capital punishment -– potential error, irreversibility, arbitrariness, and racial skew -– do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.
I've read the paper, and though I don't entirely agree with all the analysis in it, I think it makes some very important points, and will attract a lot of attention. What most intrigued me, incidentally, was its summary of the recent deterrence studies, which I hadn't known about. (I support the death penalty on retributive grounds, but obviously if it's a powerful deterrent, that would reinforce the retributivists' support and may also bring around many nonretributivists.) Here's their summary of the evidence; for footnotes, please see the paper itself:
For many years, the deterrent effect of capital punishment was sharply disputed. But a great deal of recent evidence strengthens the claim that capital punishment has large deterrent effects. The reason for the shift is that a wave of sophisticated econometric studies have exploited a newly-available form of data, so-called “panel data” that uses all information from a set of units (states or counties) and follows that data over an extended period of time. A leading study used county-level panel data from 3,054 U.S. counties between 1977 and 1996. The authors find that the murder rate is significantly reduced by both death sentences and executions. The most striking finding is that on average, each execution results in 18 fewer murders.
Other econometric studies also find a substantial deterrent effect. In two papers, Paul Zimmerman uses state-level panel data from 1978 onwards to measure the deterrent effect of execution rates and execution methods. He estimates that each execution deters an average of fourteen murders. Using state-level data from 1977 to 1997, Mocan and Gittings find that each execution deters five murders on average. They also find that increases in the murder rate come from removing people from death row and also from commutations in death sentences. Yet another study, based on state-level data from 1997-1999, finds that a death sentence deters 4.5 murders and an execution deters three murders. The same study investigates the question whether executions deter crimes of passion and murders by intimates. The answer is clear: these categories of murder are deterred by capital punishment. The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2.75 years of reduction in the period before execution.
In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive study exploits that fact to estimate the deterrent effect. Using state-level data from 1960-2000, the authors make before-and-after comparisons, focusing on the murder rate in each state before and after the death penalty was suspended and reinstated. The authors find a substantial deterrent effect. After suspending the death penalty, 91% of states faced an increase in homicides – and in 67% of states, the rate was decreased after reinstatement of capital punishment.
A recent study offers more refined findings. Disaggregating the data on a state by state basis, Joanna Shepherd finds that the nation-wide deterrent effect of capital punishment is entirely driven by only six states — and that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. What distinguishes the six from the twenty-one? The answer lies in the fact that states showing a deterrent effect are executing more people than states that do not. In fact the data show a “threshold effect”: deterrence is found in states that had at least nine executions between 1977 and 1996. In states below that threshold, no deterrence can be found. This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death is so improbable as not to be worthy of concern. Her main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial.
All in all, the recent evidence of a deterrent effect from capital punishment seems impressive. But in studies of this kind, it is hard to control for confounding variables, and a degree of doubt inevitably remains. It remains possible that these findings will be exposed as statistical artifacts or will be found to rest on flawed econometric methods. More broadly, skeptics are likely to question the mechanisms by which capital punishment has a deterrent effect. On the skeptical view, many murderers lack a clear sense of the likelihood and perhaps even the existence of executions in their state; further problems for the deterrence claim are introduced by the fact that capital punishment is imposed infrequently and after long delays. In any case many murders are committed in a passionate state that does not lend itself to an all-things-considered analysis on the part of perpetrators.
As mentioned above, and as we discuss in Part IV, these suppositions are in some tension with existing evidence. But let us suppose that these doubts are reasonable. If so, should current findings be deemed irrelevant for purposes of policy and law? That would be an odd conclusion. In regulation as a whole, it is common to embrace some version of the Precautionary Principle -– the idea that steps should be taken to prevent significant harm even if cause-and-effect relationships remain unclear and even if the risk is not likely to come to fruition. Even if we reject strong versions of the Precautionary Principle, it hardly seems sensible that governments should ignore evidence demonstrating a significant possibility that a certain step will save large numbers of innocent lives.
For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about it. But as a general rule, this is implausible. In most contexts, the existence of reasonable questions is hardly an adequate reason to ignore evidence of severe harm. If it were, many environmental controls would be in serious jeopardy. We do not mean to suggest that government should commit what many people consider to be, prima facie, a serious moral wrong simply on the basis of speculation that this step will do some good. But a degree of reasonable doubt does not seem sufficient to doom capital punishment, if the evidence suggests that significant deterrence occurs.
In any event, as they say, read the whole thing — and, better yet, also read the studies it cites (something I plan to do shortly).
UPDATE: Reader Dan Markel points to other articles on the deterrence question, which appear to take a contrary view: Richard Berk, New Claims about Executions and General Deterrence: Deja Vu All Over Again?, J. Emp. L. Stud. (forthcoming) (March 11, 2005 draft); Ted Goertzel, Capital punishment and homicide: sociological realities and econometric illusions, Skeptical Inquirer (July-August, 2004).
UPDATE: Reader Jonathan Steinsapir properly points out that we don't actually know the votes of each of the judges at the rehearing stage. While the press is reporting that the vote was 10-2, the order denying the petition for rehearing merely states that there was no majority of active judges in favor of granting rehearing and then contains two dissents from the denial of rehearing. It is possible that some judges voted in favor of rehearing but decided against writing or joining a dissent from the denial of rehearing en banc. My sense is that it's not particularly likely in a case like this, but it is certainly possible.
The interesting question is, what happens after the Supreme Court declines to intervene? This post by Marty Lederman suggests that we might be in for another round of federal court decisions; the plaintiffs have amended their complaint to add a few more claims, and it looks like the cycle of appeals and petitions will continue.
In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.Thanks to Southern Appeal for the link.
Many law reviews these days are trying to limit the free availability of the articles they publish, since that gets them more money from WESTLAW, LEXIS, and HeinOnline.
The Virginia Law Review is doing better: It's making all its new articles (from 2004 on) available for free (and google-findable) on its Web site. Law reviews are nonprofit institutions, dedicated to the spread of legal knowledge (and in the process helping educate the students, and get them better credentials). Editors should want to get more readers -- and thus make their hard work yield more benefit -- and not more dollars.
Journals need money to operate, but my sense is that they generally get an adequate amount from a combination of law school subsidies and subscription revenues. (Not a princely amount, but they're not supposed to get a princely amount.) If they can afford it, and I think most journals can, they should follow the Virginia's lead.
The Sports Law Blog has a post detailing the Education Department's new, and potentially controversial, Title IX policy. The change, detailed in this letter, should reduce the pressure on univeristies to comply with Title IX by eliminating male athletic teams.
Under the old policy, schools were encouraged to ensure that the male-female ratio among athletes was roughly proportional to the male-female ratio of the student body. According to Title IX's critics, this induced many schools to eliminate male teams and athletic programs so as to bring the overall numbers into line. Showing proportionality in athletic opportunities, measured by the number of athletes participating in university-sponsored programs, was the easiest way to demonstrate compliance.
Under the new policy, as I understand it, schools will be able to demonstrate compliance through the use of on-line surveys that demonstrate they are "fully and effectively" accomodating the athletic interest of female students. This means that at schools where there is not a great demand among women for athletic opportunities, there will be less pressure to create proportionality of athletic programs. If properly implemented, the policy will ensure that athletic opportunities are the result of actual student demand, and not bureaucratic bean-counting.
For more on the new policy, and the emerging opposition to it, see here.
"According to the teaching of Jesus, it is God who has joined man and woman together in the marital bond. Certainly this union takes place with the free consent of both parties, but this human consent concerns a plan that is divine. . . . To treat indissolubility not as a natural juridical norm but as a mere ideal empties of meaning the unequivocal declaration of Jesus Christ, who absolutely refused divorce because "from the beginning it was not so" . . . [P]rofessionals in the field of civil law should avoid being personally involved in anything that might imply a cooperation with divorce." [Emphasis in original.]
-- Address of John Paul II to the prelate auditors, officials and advocates of the Tribunal of the Roman Rota, Jan. 28, 2002
"The parents of Terri Schiavo asked a judge to allow the severely brain-damaged woman to divorce her husband—even if she dies—in one of a flurry of 11 new motions filed by the couple. In the divorce motion filed Monday, Bob and Mary Schindler accused Michael Schiavo of adultery and not acting in his wife's best interests."
-- Associated Press, March 1, 2005
"During the hearing in Tampa, the chief lawyer for Ms. Schiavo's parents . . . David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water. 'We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul,' Mr. Gibbs said."
-- New York Times, March 22, 2005
Like many of these Slate quote-only items, this one gives no analysis or explanation. Still, my sense is that this is somehow trying to suggest that Ms. Schiavo's lawyer or parents are acting inconsistently, or that good Catholics should oppose their actions. Read it yourself and see whether that's your interpretation.
Yet if that's the claim, isn't there a pretty obvious response? I'm by no stretch of the imagination an expert on Catholicism, but I would think that Catholic teachings recognize that even really important principles (such as "no divorce") may have to yield when they run up against a more important principle (such as "preserve human life"). This doesn't mean that the first principle is wrong or insignificant, only that even important moral rules that are usually stated categorically might have some extraordinary exceptions.
My understanding, for instance, is that most Orthodox Jews believe that the commandment of not working on the Sabbath should be violated when such work is needed to save a life. Likewise, I'd guess that most Catholic scholars would conclude that if a divorce is really necessary to save a life, it would be proper. Divorces are almost never necessary to save a life, so the statements against divorce tend not to include such provisos; but it doesn't follow that it's somehow inconsistent or improper to recognize that such a proviso is implicit.
Please correct me if I'm mistaken as to the Catholic teachings, or if I'm misinterpreting the Slate column. Perhaps the author is simply making the point that I'm making, which is that even categorical rules sometimes have extraordinary exceptions (which are understandably not included when the rule is asserted, precisely because they are so extraordinary), and that sound religious reasoning must thus sometimes involve reconciling two contradictory rules. But if the author is trying to suggest an inconsistency, I think he's mistaken.
(None of this speaks to what should be the right result in the Schiavo case, of course; I'm making only the limited point I outline above.)
UPDATE: The author posted this on Slate's discussion board, "The Fray":
Subject: I changed the title of the item
from "Cafeteria Catholics" to "Religious Liberty."
I posted the quotes without editorial comment precisely because this is a profound and wrenching case. I just wanted to put the three pieces out there so people could seriously discuss the relationships and differences among them.
I ruined the spirit of that editorial silence by tacking on a headline that implied a conclusion and was more clever than wise. I apologize.
I much appreciate the author's apology, but it still seems to me that the mere juxtaposition of the quotes isn't really that helpful. This is a profound and wrenching case, but not, I think, because for Catholics it might require a violation of the rule against a divorce. I'd think that to a Catholic that would be an easy decision, given the countervailing interest — preserving a life. In fact, as various people have pointed out, the very same Papal address from which the Slate piece quotes also says, two paragraphs below the Slate-quoted material:
Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce. They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order . . . .I would think that protecting a person's life would be a classic example of "the securing of other legitimate effects."
FURTHER UPDATE: Steve Bainbridge has some Catholic philosophy thoughts on the subject.
Just wanted to pitch again our debate on the subject this week in the Legal Affairs Debate Club. There are now three posts from each of us; Geof is a very accomplished, intelligent, and interesting commentator, and it's always a pleasure for me to debate with him -- I hope it will likewise be a pleasure for you folks to read the debate.
For some reason, I was thinking recently about commonly used quotes that, when read in their original context, mean something quite different -- sometimes nearly the opposite -- of what many modern quoters use them to mean. For example, "East is East, and West is West, and never the twain shall meet" is usually used to suggest that two cultures are ultimately irreconcilable; but the full quote is very different:
OH, East is East, and West is West, and never the twain shall meet,Likewise, some people defend antitrust law by quoting Adam Smith's line "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices." But Smith actually said:
Till Earth and Sky stand presently at God’s great Judgment Seat;
But there is neither East nor West, Border, nor Breed, nor Birth,
When two strong men stand face to face, tho’ they come from the ends of the earth!
People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice.Hardly a ringing defense of antitrust law.
Similarly, "The first thing we do, let's kill all the lawyers," from Shakespeare's Henry VI, part 2, is said by a revolutionary who is not portrayed as a particular sensible character; shortly afterwards, Dick (who said the line) and Cade (who agreed with it) move on to condemn anyone who can write.
So my question: What other such quotes can people come up with? Again, I'm looking for quotes that (1) are pretty famous and (2) are often used to mean one thing, but where (3) the original work is saying nearly the exact opposite (either because the original line was facetious, or was followed by something of a "Yes, but," as in the Kipling or in the Smith quotes).
Please post your suggestions in the comments, and please stick within these three rules.
Judicial contempt for the coordinate branches on this scale is simply staggering. Anyone defending this morning's majority or yesterday's ruling has to defend this disregard of Congressional action.Hewitt sees the ruling as a "disregard of Congressional action" because of statements made by proponents of the bill such as this statement by Tom DeLay:
"We are confident this compromise will restore nutrition and hydration to Mrs. Schiavo as long as that appeal endures," DeLay said. "Obviously, the judge will have to put the feeding tube back in or she could die before the case is heard."Hewitt offered a similar take on yesterday's district court decision:
[The] court simply ignores the obvious intent of an overwhelming majority of the Congress and the agreement of the president. Once again we have on display a judiciary that has grown contemptuous of the directly elected branches. When the Senate returns, the clash over judges will commence again, and proponents of nominees who understand that it is the role of judges to apply the law as intended by Congress will have another powerful example of why such nominees are so needed on the bench.I recognize that the Schiavo case is an emotional topic, but I'm not sure I follow the basis of Hewitt's criticism. The foundational premise of statutory interpretation is that the role of the judiciary is to obey the text of Congressional enactments, not to watch press conferences and get a sense of what the proponents of legislation actually want. The judiciary shows contempt of the directly elected branches by ignoring the text of the laws they pass, not by following that text. What am I missing?
I have enabled comments. As always, civil, respectful, and on-topic comments only.
The reference to the application of election laws to blogs in Larry Ribstein's Table of Contents reminds me of a funny thing I saw just the other day, and the silliness of trying to restrain speech. I was watching an old Muhammad Ali-Joe Frazier fight on ESPN Classic, and the announcer was interviewing Ali after the fight. Ali made a point of wishing good luck in some election to Dick Gregory, the old political activist. The announcer quickly ripped the microphone away and told Ali that he couldn't discuss politics because otherwise they would have to grant equal time on the network to all of Gregory's electoral opponents under the Fairness Doctrine. Very funny example of the folly of trying to restrain political speech through regulations.
Larry Ribstein is doing a paper on the law and economics of blogging which you can find here. The hope seems to be to have the paper itself shaped by blogging commentary and response. It should be an interesting project to follow.
There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting colleague has emotional appeal, we as judges must decide this case on the law.Judge Wilson dissented, essentially on equitable grounds: Schiavo will die absent immediate relief, he reasoned, and Congress seems to have wanted the federal courts to keep her alive until there was a more substantial hearing. Notably, however, Judge Wilson avoided explaining why the case presented the required substantial likelihood of success on the merits. On this point, he offered the conclusory view that "[t]he merits of Plaintiffs’ substantial claims warrant a more complete review. I do not mean to suggest that Plaintiffs will definitely prevail on the merits, but merely that she has presented a sufficient case on the merits."
The case will now go up to the Supreme Court, I assume. The chance that the Supreme Court will agree to hear the case or otherwise intervene is very close to zero.
Tuesday, March 22, 2005
An example of what I have in mind is Professor Laurence Tribe's 1991 speech in which he took at least some credit for the famous Fourth Amendment decision in Katz v. United States:
Around 23 years ago, as a then-recent law school graduate serving as law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government's electronic surveillance of a suspected criminal — in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect's privacy was accomplished without physical trespass into a "constitutionally protected area," the Federal Government argued, relying on *Olmstead*, that there had been no "search" or "seizure," and therefore that the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," simply did not apply.If you know of other examples, please e-mail me at okerr (at) law.gwu.edu. Thanks.
At first, there were only four votes to overrule *Olmstead* and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I'm proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number >from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment "protects people, not places." (389 U.S. at 351.) In that decision, *Katz v. United States*, the Supreme Court finally repudiated *Olmstead* and the many decisions that had relied upon it and reasoned that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting *free speech* as well as the Fourth Amendment purposes of protecting *privacy* require treating as a "search" any invasion of a person's confidential telephone communications, with or without physical trespass.
can have very different meanings. The goal of many emerging parliamentary democracies, I think, is for citizens to be able to say "The government has collapsed. Now, which movie do you want to go see tomorrow?," rather than "The government has collapsed; what street are the tanks coming down?" (or even "The government has collapsed; those 100,000 protesters on the main square did a great job").
Thanks to InstaPundit for the pointer.
Auto Connection has some new material on the astounding $31 million verdict against Ford from Zavala County, Texas, last discussed in this space Mar. 7. A few snippets:
In the testimony that followed [a Feb. 22 mistrial motion by Ford], it was revealed that not only had [juror Diana] Palacios failed to acknowledge her romantic entanglement [with plaintiff's attorney Jesse Gamez] during jury selection, but had previously been a client of Gamez in other litigation, had been an aunt by marriage of one of the plaintiffs and indeed had solicited the plaintiffs to sue Ford and Guerrero and hire Gamez as their lawyer....
Incredibly, Ford's motions were denied, but Juror Palacios was removed.
The next day's Express-News carried a story about the motions and denials.
But a mysterious man went around to all the distribution points in Crystal City, buying up all the papers before anyone could read them. The San Antonio newspaper management 130 miles away quickly got wind of this, replenished the newspapers and ran an editorial the following day denouncing the act as an attempt to keep Crystal Citians from learning of their local conflicts of interest. The miscreant was never identified.
A blogger writes:
Howard Dean, on why we lose elections to Republicans in spite of our undeniably superior positions:
One major reason his party lost the 2004 race to the "brain-dead" Republicans is that it has a "tendency to explain every issue in half an hour of detail," [Howard] Dean told the semi-annual meeting of Democrats Abroad, which brought about 150 members from Canada and 30 other countries to the Toronto for two days.
Conservative law supporter (and contributor to the Bush campaigns to the tune of several thousand dollars) Eugene Volokh's response:
Hey, how's this for another possible major reason: Might politicians who assume their adversaries -- and tens of millions of voters -- aren't just mistaken but "brain-dead" not be very effective politicians?
He has a point there. Dean ignores the fact that many of the Republican voters are not stupid, but rather completely corrupt and utterly lacking in common decency. I'm not sure what political strategy I would advocate, if any, to appeal to them, though.
What a helpful perspective -- yes, Governor Dean, that would be a really great way to frame your political plans. Trust me on this one: Just say that, the Republicans are "brain-dead, completely corrupt, and utterly lacking in common decency" -- or if you think that's impolitic, just think it hard; no-one will ever know that this is your view. You'll be sure to win lots of elections against us awful Republicans if you do that. At the very least, if this approach doesn't persuade Republicans to treat them this way, it will surely persuade the center. Centrist voters just love it when one party condemns adherents of the other this way.
On Friday night of next week (April 1st) I will be speaking at Reason Weekend in Laguna Niguel.
Other speeches April:
(4/5) Bridgewater State
(4/7) Texas Tech
(4/9) BU Libertarian Society
(4/14) University of Arizona
(4/27) Social Law Library, Boston.
Update: I will also be speaking next week about Ashcroft v. Raich on Thursday, March 31 at Chapman University School of Law at Noon in room 237a. The talk is open to the public.
No, I'm not joking; its web site is nazi.org. The Minnesota high school murderer was apparently involved with this group; see this statement from the group (though I haven't independently checked its accuracy). "It's hard . . . being a Native American National Socialist," the killer apparently wrote.
Here is where the Green side of the party fits in. I should stress that some of the linked-to sites will likely be utterly horrified by these people, and are in no way responsible for the links. On the other hand, some of the endorsed views' world-war-is-good position seems to resonate well with Nazism.
Thanks to the eagle-eyed researchers at the Competitive Enterprise Institute for the information.
UPDATE: Jesse Walker at Hit & Run has more on this site -- whether it's serious, an esoteric joke, or some mixture of both.
The various explanations that have been offered mostly boil down to the contention that people are jerks — consumed by envy, by needs to control others, or whatever. There is obviously some truth in these claims. The difficult point about such explanations is the implication that libertarians are not afflicted with similar character flaws — that we are more saintly or mentally healthy than the rest of the population. Anyone who has experience with libertarians in person, however, will have (or should have) trouble swallowing that conclusion. There must be more to the story. [my bold!]Some of his psychological speculation has occurred to me. For example, I mention in The Structure of Liberty how belief in an interventionist government to ensure that things come out right is a secular and more scientific substitute for belief in an interventionist God, and both may stem from the childhood belief in (or need for) parents who make things come out right. And he is not the first to notice that many people found their beliefs about why government must compel people to be good (conservatives) or generous to others (liberals) on introspection: they know that without some compulsion they themselves would not be as good or generous as they think they ought to be, and do not want to see others get away with behavior that they deny themselves. Still, I thought the way he framed the point was thought-provoking:
Start with the most famously transparent case of psychological motivation for political beliefs: the obsessive campaign of conservatives against pornography, which elicits a knowing smile from everyone else. Susie Bright, noted author of erotica, says that the Report of the Meese Commission on Pornography was the best jill-off book she had ever read, the Commission having gone out of its way to procure the kinkiest stuff. Look today at the amount of coverage given by WorldNetDaily, to pick on just one popular publication, to sex scandals, child prostitution, and other titillating topics. Without their diligent reporting, many pedophiles might never have considered the opportunities in contemporary Afghanistan. Leftist intellectuals smugly infer suppressed desires from this righteous crusade, but their own positions may be vulnerable to a similar analysis.Given his objective of being as critical of libertarians as those on the left and right, however, I found his analysis generally weakest when discussing the psychology of libertarians--or perhaps on a different and less fundamental level. Here is just a taste:
Consider the odd resistance of left-liberals to lowering even their own taxes. The very idea is as offensive to them as relaxing laws against prostitution is to conservatives. That doesn't mean they are indifferent to money, but it is important to them to appear indifferent to money. Most of my liberal friends are wealthier than my conservative friends, but they would sooner die than be thought of as wealthy. They refer to themselves as "comfortable" — where "comfortable" means having a home in the Berkeley hills, an SUV and a sports car, and enough money for either private school tuition or a condo in Aspen. But the insistent denial of concern for wealth, we may suspect, betrays an underlying obsession.
What liberals and conservatives have in common, I suggest, is having publicly subscribed to an ascetic code in which they are not wholeheartedly committed. They have simply focused on different aspects of Christian asceticism (an asceticism shared by most other religions) — money or sex. . . .
Self-acceptance, or its lack, is key in both cases. Conservatives who live comfortably within the bounds of their narrow code are generally less agitated and zealous in their disapproval of transgressions. Not feeling especially deprived by their moral choices — feeling, perhaps, that their moral choices are their own, rather than imposed from without — they have no reason to envy others their greater freedom of action. Similarly with those left-liberals who are comfortable with a very modest standard of living. I think, in fact, that the range of peaceful behaviors we are comfortable with in others is a pretty good index of our own self-acceptance.
For left-liberals and conservatives alike, political beliefs derive much of their obduracy from being rooted in morality and self-concept. Conservatives can tell they are good people by the strictness of the standards they espouse, and by the zealousness of their advocacy — which generally means efforts at imposing those standards universally. Challenging conservatives' political beliefs will generally not get very far, because those beliefs are linked to conservatives' sense of what is good, and of themselves as good people. Anyone who has entered into political discussions with left-liberals has tasted the similar righteousness of their position. They believe their commitment to redistributionist policies shows them to be good people; challenges to those policies will likely be experienced as challenges to left-liberals' sense of the good, and of themselves as good people.
A major factor in understanding libertarianism as a movement is the simple fact that, in our cultural context, self-identifying as libertarian entails a willingness to be perceived as deviant. There are undoubtedly many people who would join the Libertarian Party if most of the people they knew belonged. The importance to most people of not being perceived as deviant is apparent in the obsession of very many LP members — especially those coming from the Right — with "mainstream acceptability" (where "mainstream" refers to the conservative heartland), and with downplaying or even eliminating planks on issues like gay marriage or the War on Drugs.Apart from the end of this passage seeming to be internally in conflict with its beginning, it fails to explain why libertarians are more willing to be perceived as deviant, and why we should think that they are more or less so than political activists of the right or the left. More importantly, this and the other characteristics he associates with libertarians--such as their approach to knowledge--are not grounded in the same basic psychological processes as his analyses of liberals and conservatives. To me, at least, something was missing here, though to be fair to Acree his topic was why libertarianism was not more appealing to liberals or conservatives so assessing their psychology was more germaine.
Still, I would be much more interesting in hearing the candid thoughts of libertarians about their own psychology and that of other libertarians in ways that are not self-congratulatory, than I am in hearing reactions to Acree's claims about the psychology of those on the left or right. For example, if Acree is right that the attractiveness of liberal and conservative ideologies depends their resemblance to differing parental models (mother-state or father-state respectively), then what comparable psychology accounts for libertarians rejection of either parental model? To facilitate measured and civil discourse on this topic, I am enabling comments.
I should make it clear that I am not necessarily agreeing with Acree's analysis of the psychology of liberals or conservatives either, though I find at least some of it intuitively plausible. Nor do I think it fair or accurate to reduce all political belief to psychological terms, though clearly psychology plays a role in everyone's political beliefs and, when described, these psychologies typically sound unflattering. I should also emphasize there is much more to his analysis than the teasers I posted here that makes it more subtle than these quotes suggest--some parts of which I had some trouble following.
So before posting your thoughts about his claims, it would be good to read the whole article, which is available here, not just these brief excerpts.
Update: On the comment board, Ex-Conspirator (is any Conspirator ever truly "ex" or just in deep cover?) links to an old post of his that relates the "secret sin" theory of politics related to him by an anonymous libertarian. This simplistic, yet viscerally appealing, over-generalization has the virtue of including a secret psychological motivation for libertarians (though it does not personally resonate with me, but perhaps I am in denial):
He went on to generalize this to a "secret sin" theory of politics-- that people form their political views on the basis of a generalization of their own deepest darkests. (This, by the way, is something like the method Hobbes defends, though that fact didn't come up in conversation.) So: if you think it's only the law that keeps you from plunging into a life of full-time sexual depravity and debauchery, you become a moralistic conservative. If you think it's only the law that keeps you from becoming Ebeneezer Scrooge and screwing the poor just for the sheer sadistic joy of it, you become a lefty. And if you look inward and detect a craving for power, you generalize that to everyone else and become a libertarian. The moral was that people should listen to libertarians, believe them, follow their policy recommendations-- and not elect them.
I've found the recent debates about punishment and retribution very interesting — I may actually see whether there's anything left to write on the subject (despite the centuries of philosophy and legal thinking on the matter). This really is terribly important stuff. It's important if we retributivists are right (regardless of whether the retribution should come in the form of prison terms, death, pain, or whatever else), and it's important if we're wrong: Either sort of error may cause lots of needless suffering, whether to the criminals or to their victims.
For now, let me note one brief observation, which again is present even if one sets aside the death penalty, painless or painful. Many people have argued that it's wrong to derive pleasure from others' suffering, and I suppose I agree under some definitions of pleasure — we shouldn't take out the popcorn and settle in for a fun evening of contemplating the suffering inflicted on others. But I think that under many necessary and proper theories of punishment, it's quite proper to derive satisfaction from criminals' suffering. That sounds cruel, but it seems to me quite right, and here's why.
We can identify six main theories of punishment, though I'm sure there are others, and other ways of categorizing these ones:
1. Incapacitation: Lock someone up so he can't commit the crime again (or chemically castrate him or whatever else). I think this is quite right, though there may be limits on how long it's fair to lock people up. And this doesn't require that the person suffer: If we could cheaply incapacitate someone in ways that are perfectly pleasant for him, we'd still be fulfilling the goal of incapacitation. But incapacitation can't be the whole story; I take it, for instance, that if a rapist gets into a car accident after the rape and becomes paraplegic and practically highly unlikely to rape, we wouldn't just let him out.
2. Restitution: Make the person pay for the damage he did. This too is good, and it doesn't require that the person suffer. (The payment may make him suffer, but it need not; if Winona Ryder shoplifts something and then has to pay for it, the payment probably isn't enough to make her suffer, and yet the restitution function is entirely satisfied.) But while this can work well for purely financial crimes, it's much less satisfying for other crimes, and often the criminal doesn't have the money to pay.
3. Rehabilitation: Make the criminal change his ways. "Nice work if you can get it," I say — from what I hear, no-one quite knows how to do this reliably, and even the programs that seem to work the best tend not to be that effective. Still, in principle, if this were possible, it could be doable without the person's suffering (unless the rehabilitative technique relies on the person's suffering).
4. Norm-setting: Send a message to the public that something is wrong, and affect their moral judgments (and not just their cost-benefit analysis). Locking up drunk drivers, for instance, might lead people to recognize how bad this behavior is; some people hope that hate crimes laws may have a similar effect. Likewise, sternly punishing date rape might open some other people's eyes to how awful this crime is. It may do little to the serious sociopaths, but it may affect some people who have decent impulses as well as evil ones. And punishment of 60-year-old Nazis might serve as a reminder to the public about how evil Nazism is.
This, I think, generally requires that the punishment involve some suffering, precisely because the infliction of suffering is what helps set the norm. Just saying "drunk driving is bad" or "date rape is bad" might do something, but not much; the government says similar things all the time ("literring is bad"), and people tend to tune them out. I think that what makes the prosecution of these criminals noteworthy, and norm-reinforcing, is that the legal system finds the crime so serious that it's willing to inflict suffering as a result.
Again, consider the thought experiment from item 1: Imagine that one could come up with a "punishment" that inflicted no suffering; for instance, say that drunk drivers could be given a pill that keeps them from getting drunk (and assume that for most people that wouldn't cause suffering). The resulting penalty may make for quite effective incapacitation, but I doubt that such a suffering-free punishment would much affect moral norms.
5. Deterrence: Increase the cost of crime to the criminals, and thus scare them away from the crime. Now this necessarily involves inflicting suffering; if the punishment didn't include suffering of some sort, then criminals wouldn't be deterred by it.
What's more, if we take a deterrence perspective — or, say, a deterrence-incapacitation perspective, or some other mix that includes deterrence — then we should derive satisfaction from knowing that criminals will suffer. The satisfaction may be tinged with sorrow, regret, or even disgust at the suffering. Locking someone up for the rest of his life, or even for several years, is surely a harsh and even brutal punishment, and would be even if we eliminated the risk of prisoner-prisoner violence.
Nonetheless, if we believe in deterrence, we are deriving a benefit from this suffering: It is this suffering of the criminals that is making us and our children safer. And as a result we must presumably derive some (though not unmixed) satisfaction, as we would from anything that we think makes us safer, and is morally justified.
6. Retaliation: Punish criminals because they deserve to be punished for the evil things they did. This, as I've argued before, is the best explanation for the understandable and laudable campaign to punish 70-year-old Nazis.
Likewise, say that there were some entirely suffering-free way to incapacitate and deter rapists: For instance, assume for the sake of argument that there's a cheap (and constitutionally and morally permissible) form of chemical castration that can for some period of time take away their sex drive — which means that they won't even miss sex, forced or unforced — and say that reliable comparative studies show that this deters rape as well as other punishment does. (For instance, say that uncastrated men really don't want to be chemically castrated, but once they are they don't really suffer much, setting aside for a moment any possible social shame that might come from being uninterested in sex.) Would we think this is really enough? If the rape victim came to us and said, "So the trial was yesterday, and today I saw the man who brutally raped me walking down the street whistling," would we think that justice had been done?
If we wouldn't think so — if we think that justice requires some retaliatory punishment here, or as to the Nazis — then we are demanding that the criminal be made to suffer, even if just through the loss of liberty. And thus presumably when we hear about old Nazis or young rapists being convicted and thrown in prison, we derive satisfaction from knowing that the person is suffering.
So it seems to me that if we endorse theories 4, 5, or 6, or some mix of them and other theories (and I think most of us do endorse such a mix), we support deliberately inflicting suffering on criminals, and derive benefit and satisfaction from this infliction. Again, doubtless some moral rules limit the type and amount of suffering we can inflict on people for certain crimes. (Even if we really want to deter pickpockets, and the death penalty deterred them, I don't think the penalty would be a suitable punishment, though I won't go into the reasoning for that here.) And perhaps some moral rules categorically limit the type and amount of suffering we can inflict on people for any crime. Perhaps, for instance, it's proper to derive satisfaction from deprivation of liberty but categorically improper to derive satisfaction from deprivation of life or infliction of physical pain.
But unless we limit ourselves to theories 1, 2, and 3 — unless we renounce not only retribution but also deterrence and probably norm-setting — we must acknowledge that our criminal justice system is largely based on the infliction of suffering, and rightly so; and that we are therefore right to derive satisfaction (though not unmixed with regret and other emotions) from knowing that criminals are being made to suffer precisely for the sake of the moral and practical benefits that this suffering causes us. Maybe that's a reason to utterly reject deterrence and retaliation. But if we accept them, then what I say here seems to follow, not just as a matter of my moral judgment but as a matter of logic.
UPDATE: A reader writes, "[I]t seems to me that you can change the phrase 'suffering' to a less emotive phrase such as 'deprivation of liberty and/or property' and not change your analysis one whit. The problem with using 'suffering', as I see it, is that 'suffering' is usually equated to 'physical suffering', which evokes images of whips or torturing, etc., and the very idea of possibly being thought inhumane is anathema to the psyche of modern-day Liberals. Thus the use of the word 'suffering' clouds the minds of many people and inhibits rational analysis."
But I'm deliberately trying to draw the analogy. We're not talking about some abstract legal machinations, which is likely the first image that "deprivation of liberty and/or property" (especially with the "and/or") creates. Nor are we talking simply about deprivation of liberty and/or property -- as I mentioned in my discussion of the first three reasons for punishment, we can imagine deprivations of liberty that are set up to minimize suffering. To take a noncriminal example, if I'm quarantined because of a contagious illness -- a form of incapacitation, since my isolation will prevent me from inadvertently doing harm -- I hope the government will try to ease my suffering as much as possible.
Rather, I'm talking about inflicting suffering on people, suffering that may cause a great deal of psychic pain, and that is inflicted *precisely in order to inflict such pain*. Now maybe infliction of psychic suffering by locking people up is legitimate, and infliction of physical suffering by flogging them is illegitimate. But to clear our minds and engage in rational analysis, we have to acknowledge, I think, that both are forms of deliberately inflicted suffering.
UPDATE: SCOTUSBlog has more.
The American Lawyer has a remarkable account of the Fen-Phen settlement fiasco, which foundered on a flood of apparently fraudulent claims by plaintiffs, acting in concert with hired-gun physicians, some of the latter of whom, contrary to professional ethics, worked on contingency fees. After reading the piece, I was left with two questions: (1) how could the attorneys involved in setting up the settlement fund have assumed that only honest and valid claims would be forthcoming, when they had the example of the asbestos mess in front of them; and (2) why haven't there been numerous indictments?
For more coverage of fen-phen, click on this link to Overlawyered.com.
Monday, March 21, 2005
Or, as Mickey Kaus puts the question, "How is the American Prospect different from Armstrong Williams?" The same question could be asked of NPR's coverage of political influence. Answer: The former received funding to report on "checkbook democracy" and "campaign finance regulation," while the latter received funding to discuss the President's education proposals.
Why is it any different if you substitute "Carnegie Corporation" for "General Motors" and "campaign finance regulation" for "auto regulation"--and "American Prospect" for "New York Times"?
Kevin Russell (SCOTUSblog) has a fascinating report on the Court's argument in the Religious Land Use and Institutionalized Persons Act case (Cutter v. Wilkinson); this will likely be a very important decision for the Court's church-state jurisprudence. My favorite snippet, though, is a nonsubstantive one:
The argument had its lighter moments. At one point, Justice Scalia interrupted respondent’s counsel to ask whether Satanism is a non-majoritarian religion. It is unclear why Justice Scalia cared, or whether he was just making a joke, but the question led to a bizarre colloquy in which Goldberger noted that the Royal Navy had promised to abide by a Satanist’s burial wishes. That one reference to international law was one reference too many for Justice Scalia. “Our Royal Navy?” he snarled, much to the amusement of the as-always easily amused Supreme Court audience.
I know nothing about the Schiavo matter, and despite that have no opinion. But I thought I'd pass along three items — (1) in favor of the Congressional action, an interview with Robert P. George, (2) in the middle, a post from my colleague Stephen Bainbridge, and (3) against the Congressional action, a post to a lawprof discussion list (reprinted with permission) from University of Michigan professor Rick Hills:
When in doubt, defer to the states. Consider two general criteria of "doubt" and an application of this point to Schiavo.
1. The criteria:
As a proponent of "strong" federalism, I have a pretty strong stomach for state experiments in policy-making that might arguably be offensive. Indeed, I think that the essence of being a conservative supporter of federalism is what I call Nagelism (after Bob Nagel's book on federalism): we should be willing to tolerate states' enacting laws that we would find pretty unpalatable on moral and political grounds. Moreover, we should be willing to tolerate state laws that come close to some constitutional line — that arguably violate a reasonable conception of the constitution — especially when the constitutional doctrine turns on difficult empirical or moral judgments about which reasonable people can differ.
In general, one can always raise the cry that some state decision burdens some constitutional right under one's favorite theory of the constitution. But I would urge us conservatives to have a stronger stomach for state diversity than our opponents on the Left. In general, I would urge us all to allow states to do what they like unless (1) the state's majority really looks like it is ganging up on some discrete and insular minority repeatedly across the board (Carlone Products note 4 and Federalist #10) or (2) the state has adopted a view squarely at odds with a national consensus on some basic liberty that has sunk into the popular consciousness as a Privilege & Immunity of national citizenship or as an aspect of national due process (Harlan's dissent in Poe v Ullman).
Remember: The 14th Amendment did not enact (1) Herbert Spencer; (2) Ronald Dworkin; (3) John Finnis; (4) Leon Kass; (5) Rawls; (6) Nozick; (7) Name your favorite political, moral, or constitutional theorists.... It was a provision to protect the freedmen and (at a higher level of abstraction) other racial groups suffering from caste legislation or enslavement, and it nationalized some traditional principles of common law concerning due process and probably some norms of constitutional liberty contained in the Bill of Rights and elsewhere in Article I, section 9. (On this last point, I follow Amar). By some big stretch, the 13th and 14th Amendment might also protect a republican principle of "free labor" from 'class legislation' and 'monopoly.' (On this last point, I follow Gillman and William nelson).
For these reasons, I would tolerate a state law that bans theology students from getting a state-financed scholarship, even though one might argue that such a law violates free exercise by discriminating against religious speech. As a voter in a state, I would vote to amend the state constitution to forbid such a prohibition. As a constitutional lawyer, I applaud Rehnquist for deciding Locke v Davey in favor of Governor Locke. Likewise, I support the University of Michigan's right to have broad discretion to enact affirmative action plans: Gratz was wrongly decided in my view, and Grutter was correct. This view is utterly independent of my views on the merits of affirmative action. Likewise, with vouchers: Zelman is correct. Likewise, with the right-to-die: Glucksberg was correct.
I am (personally) a follower of most of what Leon Kass defends in print. I was a student of his, many years ago at Chicago. Thus, physician-assisted suicide sickens me. But (in Holmes' phrase) it does not make me puke, because it violates no national consensus on the proper scope of private liberty. Thus, I would be appalled by a doctrine that said that the state's not prosecuting physicians for assisting in suicides was unconstitutional state action under the 14th Amendment. Such an expansion of the 14th Amendment WOULD make me puke, because it would invite counter-nationalization of the opposite rule by the Hemlock Society. For the sake of social peace, we should not nationalize every cause: That's what Westphalian federalism is all about: picking your battles, reserving the feds for those issues that, in all fairness, We the (National) People have genuinely resolved.
2. The application of these conservative principles to Schiavo:
On this view, the Schiavo bill is unconstitutional. Forget about originalism: The Schiavo bill is obviously DOA on any theory of originalism. But even by any remotely plausible NON-originalist view of the 14th Amendment, it is hard to see how the 14th Amendment's due process clause could bar a state judge acting as guardian from deferring to a comatose woman's spouse in deciding whether to terminate life support. But let's take each clause, one by one.
A. Equal Protection: Does anyone believe that Florida legislators are somehow biased against comatose people? Against parents of such people? Are we seriously comparing Schiavo to segregated school kids under Jim Crow — the suggestion of Alan Meese? Does Ms. Schiavo's parents really belong to a class of some discrete (meaning easily targeted) and insular (meaning incapable of making cross-group alliances) minority? Isn't it obvious that, in a different case, the positions of the parents and spouse of the comatose person could be reversed — that Florida has made a principled decision without bias towards any social group and, therefore, not remotely akin to Jim Crow?
B. Procedural Due Process: Is there some claim that state judges have a conflict of interest amounting to a denial of procedural due process when they serve both as guardians and as judges? This strikes me as truly odd. Maybe — MAYBE — a state judge might have a personal incentive to keep Ms. Schiavo alive to continue to get court fees as guardian. But, so far as I can tell, Ms. Schiavo's parents got a decision-maker biased in THEIR favor, if that decision-maker was biased at all.
C. Substantive Due Process/[Privileges and Immunities] clause: is there some national consensus out there, firmly entrenched in tradition, that state judges should not make these sorts of judgment calls? If you believe that, then you should applaud Roper v Simmons and agree that the US Supreme Court protected a national consensus against executing juvenile offenders.
D. The Thirteenth Amendment: the Schiavo case does not even come close to the core of the 13th Amendment, which, as Justice Miller notes in The Slaughterhouse Cases, is about protecting the freedmen and people in a similar position — say, Chinese coolie labor, Mexican peon labor, etc. — from enslavement. At the outer limits, I'd construe the 13th Amendment and the Necessary-and-Proper clause to allow Congress to forbid racial segregation designed to reduce Blacks to economic dependence (Alfred H. Jones). I'd even support enforcing the 13th Amendment to prevent private violence of any sort against any group that the violent actors wish to reduce to some form of servitude — say, a prohibition on certain types of domestic violence against women.
Now: remind me how, on any minimally plausible theory of the 13th Amendment, a state's good-faith delegation of power to state judges to resolve disputes about a comatose person's intentions constitutes involuntary servitude? Is the judge asking the comatose person to perform unpaid labor for him? Will the judge somehow get more dough if he terminates life support?
I repeat: So far as I can see, this case is a no-brainer for conservatives upset by Roper v Simmons, Roe v Wade, etc. If ever there were a case for deference to states, this is such a case. No prejudice against any litigant. A perfectly traditional state judicial procedure consistent with our traditions of liberty. No forced labor. Help me out here: what am I missing that justifies a national rule here? . . .
[An earlier post by Rick Hills said:]
The Schiavo business in Congress strikes me as an astonishing violation of the most purpose of federalism. In the same way, Ashcroft's attack on Oregon's Death with Dignity Act is a deep violation of principles of federalism. I say "deep violation" advisedly: I believe that a central purpose of federalism is Westphalian (after the famous treaty that ended the 30 Years War): We properly use federalism to defuse quasi-religious political controversies over the meaning of fundamental things — "life," "personhood," "consent to die," "familial autonomy," etc. Such issues are appropriately divisive: their resolution depends on one's acceptance of fundamental systems of belief — acceptance that will almost never admit of much compromise and that cannot be rationally resolved through positive social or "hard" science.
The Westphalian principle decentralizes these issues to lower levels of government to allow each side in the debate to get some chance for their reasonable, heartfelt position to prevail. To centralize such issues simply because one can muster a necessary majority in either Congress or the Supreme Court is repulsive to this view of federalism.
The usual response to this contention is to trot out a parade of horribles in which positions obviously foreclosed by the 14th Amendment are chosen by the states. Thus, Casey notes that the states could not force women to get abortions and then infers that the states cannot ban abortions under the same principle. (505 U.S. 833, 859). But this reasoning strikes me as specious: it is one thing to force someone to get an abortion or to have a baby: it is another thing entirely to prohibit someone from using one method of avoiding childbith when there are a myriad of other ways available (say, contraception). State liberty to define "consent, "personhood," "life," etc., has certain (or rather, uncertain) limits. I tend to favor some Harlan-esque theory rooted in slowly evolving national consensus. But regardless of how one wishes to limit the states, I do not think that there is a plausible theory of federalism that would allow Congress to intervene where the rule chosen by the state is a fairly ordinary rule of family governance: when in doubt, the surviving spouse decides.
I just finished teaching my Harvard students about Roe v Wade. I urge them to consider the position seriously that I happen (privately, of course: I don't foist my own constitutional principles on my students) to be correct — that the constitutionality of abortion, and more particularly the division between the fetus's personhood and lack thereof, is a political question, properly for the states to resolve. I was delighted that principled conservatives abandoned the President on the Federal Marriage amendment, as this amendment struck me as paradigmatically the sort of issue that should be decentralized under the Westphalian principle. One of the reasons why I am a Law Professor for Bush-Cheney is that I adhere to this strong view of federalism-to-prevent-national-cultural-wars.
the merits of whether Ms. Schiavo actually consented seem to me quite besides the point. Is there any reason to believe that some imperfection in Florida's political process has prevented the Florida legislature from properly considering those merits? Just as I would not constitutionalize the anti-abortion rule of Doe v. Bolton (which the West German Constitutional Court arguably did in its 1975 Abortion decision), so too, I would not constitutionalize any rule on guardians and comatose people's intent. All of the thoughtful arguments posted on this list about whether Florida's rule is a wise one, whether guardians can be trusted, what Ms. Schiavo actually wants are great arguments — but ones which can easily be made to the Florida legislature or, for that matter, the Florida people and the Florida courts, both who control the state constitution.
And now the Republicans pull an absurd stunt like this one. I confess that I am distraught. All that "let-the-states-decide-on-abortion" rhetoric has to seem like a bunch of empty hooey if this statute is deemed to be consistent with conservative principles of federalism.
UPDATE: In the original version of this post, I erroneously included a discussion list to which Rick was responding, and which was quoted in his message. Since I hadn't asked the author of that post for permission to republish it, I've deleted that section; my apologies for having inadvertently included it in the first place.
FURTHER UPDATE: Alan Meese, whose post Rick mentions above, responds:
Rick Hills says that I have compared Ms. Schiavo to school children under Jum Crow, and that I am wrong. I'd like to respond. . . .
First, I did not compare Ms Schiavo to school kids living under Jim Crow. Instead, I responded to Professor Hills' claim that Federalism required the National Government to defer to a "fairly ordinary rule of family governance: when in doubt, the surviving spouse decides." As I pointed out, Professor Hills' proposed principle --- that we defer to "fairly ordinary rules" applied by the states --- would have prevented a Senator from voting to ban the "fairly ordinary" practice of segregation in, say, 1945.
Was this a comparison of Jim Crow schoolkids to Ms. Schiavo? I don't think so. Instead, it was an example used to show that the principle I thought Professor Hills was advancing does not withstand analysis. Moreover, the example apparently led Professor Hills to abandon his initial position --- or at least my perception of his initial position --- and create a new one --- we should defer to "fairly ordinary" rules adopted by the states when we think the political process works well to protect the individuals in question. I don't fault Professor Hills for adjusting his position if, in fact, he has --- that's what dialogue is all about.
Second. What about this new position? It's a nice question, isn't it --- who has more political power --- Ms. Schiavo, or Jim Crow Schoolkids (and their parents). I doubt Ms. Schiavo votes or makes many campaign contributions. Maybe one could argue that her parents can protect her in the political process --- something they have been trying to do in the Florida courts. But, at any one time, very few parents have children in Ms. Schiavo's condition. And, very few anticipate that they will in the future. So, while parents have the ability, if they wish, to form organizations to lobby about these questions on a prospective basis, economic theory suggests that they will not. Time is very scarce, and most people have better things to do than engage in letter writing campaigns about issues that they most likely will never face.
But, I am willing to grant that Ms. Schiavo, her parents and people like them have somewhat more political power and realistic potential to exercise it than Jim Crow schoolkids. But, that doesn't really answer the question, which is "how much power must a certain group have before we will leave them at the mercy of the states," which Professor Hills would do here. When a life is at stake, and where physicians who have examined Ms. Schiavo disagree about whether she can recover, I would err in favor of extra review, which is what Congress has done here.
The Toronto Star reports (and I have no reason to doubt the accuracy of the report, though I realize that there's always a danger of reporter error):
One major reason his party lost the 2004 race to the "brain-dead" Republicans is that it has a "tendency to explain every issue in half an hour of detail," [Howard] Dean told the semi-annual meeting of Democrats Abroad, which brought about 150 members from Canada and 30 other countries to the Toronto for two days.
Hey, how's this for another possible major reason: Might politicians who assume their adversaries — and tens of millions of voters — aren't just mistaken but "brain-dead" not be very effective politicians?
Might they, for instance, underestimate the other side's savvy? Or perhaps let their contempt show in unappealing ways?
(Thanks to Opinion Journal for the pointer.)
UPDATE: A reader suggests that maybe Dean was referring to the Republican leadership as brain-dead rather than to the Republican voters. But while the reader thinks this is a mitigating circumstance for Dean, I don't see that: Surely believing that your political opponents, who had just pretty soundly defeated your party, are "brain-dead" is even more counterproductive than believing the same of the voters.
Consider the wording of the key question testing public attitudes about the case — with emphasis added by me:
Schiavo suffered brain damage and has been on life support for 15 years. Doctors say she has no consciousness and her condition is irreversible. Her husband and her parents disagree about whether she would have wanted to be kept alive. Florida courts have sided with the husband and her feeding tube was removed on Friday.My understanding is that Schiavo's consciousness and the irreversibility of her condition is at the heart of the dispute; settling the matter in the question by indicating that this is what "doctors say" doesn't seem a very good way of measuring public opinion on the case.
What’s your opinion on this case - do you support or oppose the decision to remove Schiavo’s feeding tube?
Then there is the wording of the question that addresses whether the federal courts have a role in this matter:
Florida state courts have heard the Schiavo case. Federal courts have said they don't have jurisdiction because it involves Florida law only. Would you support or oppose a new federal law requiring the federal courts to review the Schiavo case?The question is rather leading, it seems to me — it asks whether the federal courts should be "required" to review the case right after saying that the federal courts have said there is no federal issue. It seems to invite the answer that no new law is needed.
Here is the next question in the poll:
Regardless of your preferences in the Schiavo case, do you think it is appropriate or inappropriate for Congress to get involved in this way?The poll does not say what "this way" is, but the rather dismissive tone follows up on the leading question above in a way that suggests that the right answer is "no." The beginning of the sentence also seems a bit result-oriented: it seems to invite those who favor the law to agree that the method Congress chose was improper.
Here's the question that comes next:
Do you think the political leaders who are trying to keep Schiavo alive are more concerned about her and the principles involved, or more concerned about using her case for political advantage?Again, the question seems designed to lead to a particular answer. The person being polled has just learned in the preceding questions that Schiavo has no chance of recovery and that Congress is forcing the federal courts to get involved against their will. The person is then asked whether the political leaders are really concerned about Schiavo (how could they be — she has no chance of recovery, and the courts have already made their rulings in the case) or whether they are using the case for political advantage (hint, hint). The poll seems to be looking for a specific answer, namely that the political leaders who are trying to keep Schiavo alive are just using her case for political advantage.
To be clear, I am sympathetic to the views of whoever wrote the ABC poll. The Schiavo case is a political football, and I don't see any reason for federal court involvement in the case. At the same time, the wording of the questions makes it unlikely that the ABC poll accurately captures public opinion about the case.
Tighter gun ownership laws [under which the police turn down 80% of gun license requests after an 18-month application process] are pushing South Africans to buy crossbows, spears, swords, knives and pepper sprays to protect themselves from violent crime. . . .
Despite official figures showing the murder rate falling 10 percent in the year to March 2004, South Africa's Arms and Ammunition Dealers Association says individuals face a one in 60 chance of being the victim of a violent crime in any given year. . . .
Thanks to reader Glenn Wright Bowen for the pointer.
Can any of you recommend a lawyer who knows something about California liquor license law? One of my favorite restaurants seems to be having problems with this, and the owner asked me for a referral. Please e-mail me at volokh at law.ucla.edu. In the name of tasty dinners and only slightly chemically stimulated conviviality, I thank you in advance.
In response to Ryan Sager's charges that the Pew Charitable Trusts helped orchestrate an astroturf campaign for campaign finance reform, Pew released a press release stating in part:
As part of its mission to serve the public interest, and to help increase public trust and confidence in U.S. elections, The Pew Charitable Trusts has invested over the last nine years in nonpartisan efforts to help reform the role money plays in campaigns. We are pleased that our involvement, along with that of many others, could play a positive role in helping to spark a national dialogue and ultimately, agreement on options for change. . . .
Any assertion that we tried to hide our support of campaign finance reform grantees is false. As we do with all of our work, we have fully disclosed our support for grantees working on campaign finance reform in a variety of forms over the last nine years, . . .
The full release can be viewed at Rick Hasen's Election Law blog here. Hasen also posts his own comments, suggesting the charges are "much ado about nothing" here. [UPDATE: Sager responds to Hasen here and here.] [SECOND UPDATE: Sean Treglia issues apology for remarks here.]
A D.C.-based attorney with experience in campaign finance is also skeptical of Sager's claims. He writes, in part
The problem isn't the foundation funding, it's Sager's assumption or assertion that Congress, or some members of Congress, thought there was a groundswell of popular support for campaign finance reform in the late 1990s/early 2000s, and that such perceived groundswell was a result of Pew's "conspiracy."
I've followed campaign finance reform pretty closely, and worked on McCain-Feingold issues for clients. No one pretends that campaign finance reform is anything but an argument among knowledgeable specialists. It's inside baseball. There's no massive popular movement one way or the other, and no belief that any such movement exists - all the participants in the debate, as far as I know, recognize it's a technical regulatory matter and argue about it on those terms. Naturally the participants recognize that it has crucial public policy consequences - free speech, the nature of democratic procedures, etc etc - but it doesn't engage the public mind like, say, Social Security or Medicare or the death penalty, and no one claims it does. . . .
I reject Sager's suggestion that anybody in Congress, on either side of this issue, thought they were responding to any massive popular demand for "reform." McCain et al. certainly pushed it because they believed in it, but I don't think even McCain ever claimed he was riding some tidal wave of popular discontent.
Perhaps. Yet I certainly think it's fair to argue that the sheer volume of media coverage made it seem as if there was a groundswell for "reform" of some sort. After all, was this not part of the basis for McCain's 2000 presidential bid? Was this not why President Bush signed McCain-Feingold? Campaign finance experts, like Hasen or my correspondent, may have been in the know, but would the average Wall Street Journal reader or NPR listener have reached the same conclusion? I'm skeptical. Moreover, if there was not a widespread perception that there was grass-roots support for campaign finance reform, then the charge that incumbent politicians supported "reform" out of self-interest is that much stronger.
I would also note that Pew has been accused of this sort of thing before. Both local environmental activists and property rights advocates have accused Pew of constructing astroturf environmental groups to redirect environmental advocacy on issues about which Pew was particularly concerned.
Campaign-finance reform was justified, in part, on the grounds that big money wields disproportionate influence on public policy. Ironically, the success of Pew's efforts seem to support that claim. Whether Pew's activities amounted to a stealth "conspiracy" or not, there efforts prove that large philanthropic foundations are capable of shaping public debate and influencing the course of public policy — perhaps even taking it where the public does not particularly want to go.
A reader passes along this follow-up:
Yeshiva University decided to field a crew team. Unfortunately, they lost race after race. They practiced for hours every day, but never managed to come in any better than dead last.
The chief rabbi finally decided to send Yankel to spy on the Harvard team. So Yankel shlepped off to Cambridge and hid in the bullrushes off the Charles River, from where he carefully watched the Harvard team as they practiced.
Yankel finally returned to Yeshiva. "We had it backwards," he announced. "It's one guy shouting and eight guys rowing!"
Americans broadly and strongly disapprove of federal intervention in the Terri Schiavo case, with sizable majorities saying Congress is overstepping its bounds for political gain.
The public, by 63 percent-28 percent, supports the removal of Schiavo's feeding tube, and by a 25-point margin opposes a law mandating federal review of her case. Congress passed such legislation and President Bush signed it early today.
That legislative action is distinctly unpopular: Not only do 60 percent oppose it, more — 70 percent — call it inappropriate for Congress to get involved in this way. And by a lopsided 67 percent-19 percent, most think the elected officials trying to keep Schiavo alive are doing so more for political advantage than out of concern for her or for the principles involved.
One of the fun and gratifying parts of the Dartmouth experience has been to find out all the Dartmouth bloggers who are out there. As many are aware, Powerline, Hugh Hewitt, and others have been following the story.
But equally delightful has been reading the dialogue and discussion among current students and recent alumni who are blogging. There is some especially interesting stuff at the brand-new Voices in the Wilderness, Dartlog, the Dartmouth Observer, and Joe Malchow's Dartblog.
Regardless of how it all comes out, it is just wonderful to see this sort of democracy and deliberation in action by Dartmouth students and recent alumni. Some really original and good stuff here too, such as this post by Voices in the Wilderness on alumni giving rates and the implications for Dartmouth, this interesting historical piece on a Yale Trustee election a few years ago, this clever and interesting post by Chien Wen Kung on the Dartmouth Observer, and this breaking news on the apparent removal of the documents covering Dartmouth's speech code, and some questions raised about what this may or may not mean for free speech at Dartmouth (i.e., what are the rules now if the speech code has disappeared--is it still in effect?).
At Dartmouth at least, the blogosphere seems to be supplementing the traditional student lounge "bull session" as the place for exchanging ideas, even about things like the trustee election.
Regardless of how this all comes out, as a blogger, I can't help but admire the sophisticated conversations going on in these student and recent-student blogs. Assuming similar things are going on at other schools, the implications of the blog revolution for alumni who want to keep track of the full story of what is really happening at their various institutions is really quite profound.
I apologize to those I missed the first time and I certainly intended no slight, ideological or otherwise (other than Dartlog, the overall ideological composition of the others I listed wasn't obvious to me). The ones I mentioned are just the ones I stumbled across more recently and regularly in tracking the student blog commentary on the Dartmouth Trustee election.
Is the blog environment this lively and serious at other colleges and universities? Or is it just those long, cold New Hampshire winters that keep the students inside in front of their computers for months on end?
in the Legal Affairs debate club. Geof's first post is up; my response (based in large part in what I've said in my forthcoming California Law Review article will be up later today. Geof, a lawprof and former provost at the University of Chicago, is one of the top First Amendment scholars in the country. His Perilous Times: Free Speech in Wartime has just been published.
I've looked at the items to which David points, and I share his concern. I haven't seen any real allegations of threatening behavior by the professor (for instance, express or implied threats that he'd somehow retaliate against students for their pro-Palestinian views). The only retaliation for viewpoints that I see is the retaliation against Professor Klocek. And if the Chicago Jewish News story is correct to say that Klocek is being charged in part for "verbally attack[ing]" the students for their "religious beliefs and ethnicity," "demean[ing] their ideas," "dishonor[ing] their perspective" and "press[ing] erroneous assertions," that is very bad indeed: It proves that DePaul really is going after him for expressing ideas that it disapproves of.
DePaul is a private university, and is thus not bound by the First Amendment. But as with most private institutions that aspire to being serious academic centers -- a status that necessarily involves people criticizing others' beliefs, sometimes in harsh ways (or in ways that are ambiguous but could be interpreted by one side as harsh) -- DePaul has voluntarily embraced academic freedom norms: "Academic freedom is guaranteed both as an integral part of the university’s scholarly and religious heritage, and as an essential condition of effective inquiry and instruction."
It is theoretically possible that a university could preserve academic freedom and still impose evenhanded rules that require debate to remain civil. Some such rules turn out to be necessary in the classroom, where, for instance, professors may refuse to call on students who have proven rude (or even mark them down for consistent rudeness, if there's a class performance component to the class); I think that administrators also must have some authority to stop professors from saying rude or personally insulting things when those things make it harder for students to effectively learn. That's necessary for the school to succeed in teaching students.
But outside the classroom, the rules do much more harm than good, precisely because the boundaries of civility are so vague, and these vague rules will necessary interfere with debate. What's a "verbal attack" on people for their "religious beliefs," and what's a forceful argument that some religious beliefs are wrong or evil? What's a "verbal attack" on their "ethnicity," and what's the delivery of unpleasant truths about the behavior of members of certain groups, whether Israelis or Palestinians? What's "demean[ing]" someone's "ideas," and what's simply arguing that those ideas are wrong? What's "dishonor[ing a] perspective" and what's a proper argument that some perspective is indeed dishonorable? And of course what's an "erroneous assertion" in debates where most of the assertions are about hotly contested moral questions and ambiguous empirical generalizations?
For this reason, I highly doubt that DePaul would routinely punish professors for harsh speech criticizing Republicans or Israel or pro-life or pro-choice forces. It is likewise quite wrong for DePaul to do so here.
Again, all this turns on the specifics of what Klocek said and why DePaul acted. If Klocek had, for instance, threatened the students' grades or bodies (as opposed to their psyches), and DePaul punished him for that, that would be quite proper. But the stories that David points to, and two others that I found when searching the DePaul student newspaper (see here and here), strongly suggest that DePaul is behaving wrongly here.
Finally, here's a striking item:
[Dean Suzanne] Dumbleton also emphasized the School of New Learning’s dedication to the core values of DePaul and that she was deeply saddened by the situation and the loss of intellectual empowerment the students suffered. “We do not respect the unfair use of faculty power over students,” she said.
I would think that one way of becoming intellectually empowered is by learning that when one is confronted with offensive ideas, the response is to argue against them, not to demand that the administration censor them. (The power to suppress bad ideas is indeed power, but it's not intellectual power.) And imagine what academic discourse would look like if academics could lose their jobs (or students their places in the school) when their speech causes "loss of intellectual empowerment."
Very disturbing accounts over at MarathonPundit about the case of Thomas Klocek, an untenured professor suspended for the rest of the semester for essentially arguing vigorouly with student manning a pro-Palestinian booth in the student union. I'm sure all the left-wing bloggers who've been agitating on behalf of Columbia Middle East Studies professors accused of less-defensible conduct will soon be on the ramparts defending Klocek. Right, Juan Cole? Brian Leiter? (Actually, I'm not holding my breath, but I'd be quite pleased to see Cole, Leiter, and others on the right side of the Klocek case).
UPDATE: Just noticed that David French of FIRE made the same Columbia/Klocek analogy a couple of weeks ago.
Related Posts (on one page):
I was recently reminded of the observation that, while we Jews seem to have some valuable cultural traits, a genius for effective self-government isn't one of them. This in turn reminded me of The Tale of the Two Brothers, which I'd noted two and a half years ago, but thought I might take the liberty to repeat.
The Talmud, I have heard, tells of two brothers who lived on opposite sides of the hill; one lived alone and the other with a large family. One day, the one who lived alone thought to himself: "Oh, my poor brother -- there he lives, with all those mouths that he has to feed; he must be barely surviving, though he tries to hide that. I, on the other hand, just have to feed myself, so I'm doing very well, and have plenty left over. Let me take some of my surplus tonight, and go over the hill to leave it in my brother's barn."
But that very day, the one who lived with the family thought to himself: "Oh, my poor brother -- there he lives, with no-one to help him; he must be barely surviving, though he tries to hide that. I, on the other hand, have all these children who help me, so I'm doing very well, and have plenty left over. Let me take some of my surplus tonight, and go over the hill to leave it in my brother's barn." So at the same hour of the night, the brothers walk up the hill with their sacks of food, meet, see what the other is doing, and embrace. And on that hill, the Temple was built.
Well, that's the Talmudic story (or so I am told). But, some say, there's another version of that story. Two brothers lived on opposite sides of the hill; one lived alone and the other with a large family. One day, the one who lived alone thought to himself: "Oh, that awful brother of mine -- there he lives, with all those children who can help him; he must be rolling in wealth, though he tries to hide that. I, on the other hand, live all by myself, and badly need more food. Let me go over the hill and take some of the surplus from my brother's barn."
But that very day, the one who lived with a family thought to himself: "Oh, that awful brother of mine -- there he lives, all alone, with no-one else on whom he has to spend money; he must be rolling in wealth, though he tries to hide that. I, on the other hand, have so many children to take care of, and badly need more food. Let me go over the hill and take some of the surplus from my brother's barn." So at the same hour of the night, the brothers walk to the other's barn, walk back up the hill with the sacks of food that they've taken, meet, see what the other is doing, and start punching each other. And on that hill, the Knesset was built.
An interesting article in last week's New York Jewish Week (
that I can't find on-line) explores why, with the peace process finally looking up, "mainline" Protestant groups have decided to start a campaign of divestment from companies doing business with Israel. The article concludes that the main reason is not hostility to Jews or even Israel per se, but hostility to the Christian right and to George W. Bush. The Christian right is friendly to Israel, as is President Bush. Operating on the theory that the friend of my enemy is my enemy, liberal Christian groups have decided that Israel is the enemy, and that going after Israel is a relatively painless (though, it strikes me, rather ineffective) way to stick it to evangelical Christians and conservative Republicans more generally. Moreover, there is, it seems to me, the implied threat that if traditionally liberal Jewish groups and voters continue to increasingly pursue detente with the right, the American Christian left will join the international left in opposition to Israel. I can't be sure how big a role such considerations are playing in the divestment campaign, but I'm quite certain that I don't recall such overt hostility to Israel from the Christian groups during the Clinton administration. As with the Harvard faculty vote against Larry Summers, this is evidence that the results of the 2004 elections have left many traditionally powerful folks on the left very frustrated, and looking for targets to lash out against.
Last Thursday, the San Diego Union-Tribune ran my op ed "Reforming Bankruptcy Laws: Changes Will Help Everyone". You can read it here. The conclusion:
Balanced, practical bankruptcy reform is not going to prevent honest, unfortunate debtors from getting the fresh start they need and deserve, but it will make it tougher for those who game the system to evade their financial responsibilities and stick the rest of us with the bill.
I have opened comments. Please keep it civil and focused on the merits of the constitutional and statutory arguments likely to be raised in federal court. Anything else will be deleted.
UPDATE: Stephen Henderson has a good story on some of the legal issues raised by the Schiavo law here.
Sunday, March 20, 2005
AP:The arts and sciences group is "the least representative faculty, the most out of touch with the real world, the most ideologically extreme," law professor Alan Dershowitz said in a telephone interview Wednesday. "It's not the heart and soul of the university for a lot of reasons. In some respects it's the orphan child of the faculty."
What are local governments in doing with all the extra property tax revenue they are taking in due to the unprecedented rise in housing prices? Where I live, they're wasting it, and there is going to be hell to pay when the bubble bursts, tax revenues stagnate or even decrease, and prudent fiscal policy has long been thrown out the window. My local Arlington County newspaper reports that all teachers in the county, who are already the best paid in the area, are due to get an 8% raise for the year. Particularly remarkable is how this came about. Some fraction of soaring property tax revenues are earmarked for the schools (which already spend the absurd sum of $17,000 per student). The school superintendent decided that beginning teachers with master's degrees should be paid forty-five thousand dollars, an 8% increase. Why forty-five thousand? Because this is "a nice round number." Really, that's what he said! And once these teachers received an 8% increase, he felt obligated to give all county teachers an 8% increase. New teachers with a bachelor's degree for example, will make over forty thousand dollars, making it probably the best job available to English and history majors in the D.C. area.
UPDATE: Mark Kleiman has an exceedingly silly response to this post, in which he questions why public school teachers shouldn't make a third of starting salaries at major law firms. First, on an hourly basis, teachers who make $40K a year, have summers off, work 9-3 (I understand that dedicated teachers put a lot more time in than this, but not all teachers, to say the least, are so dedicated-and many who start dedicated get frustrated very quickly by the laziness of many of their senior colleagues, who face no consequences given tenure), and have generous pensions (law firms usually have none), are probably making approximately the same as first-year associates at law firms, without the effort an expense of law school, or, for that matter, necessarily being even superior college students. And they can actually have a life (not to mention, if they stay in teaching, absolute job security). Second, and this was obvious from the post above, if the county had actually done a study, even an informal study, suggesting that higher salaries were needed to attract and retain top teachers, I could understand the increase. But the 8% increase came about only because the school district had extra money to spend, and $45K sounded like a "nice round number." Third, I could actually see a good argument, given rising housing costs in the area, for a substantial raise in school teacher starting salaries. But I don't see how this would apply to teachers already in the system, who aren't going to get any better just because you pay them more money, and who have been around long enough to have mostly benefited tremendously from rising real estate prices. Moreover, the local teachers' union has vigorously and successfully resisted any form of merit pay. In short, I'm all in favor of paying superior teachers very well--I'd scrap the entire seniority and tenure system, clean out the bad teachers, and raise pay to attract the best teachers--an amazing teacher with 30 kids would be a lot better than two mediocre teachers with 15 kids. But I'm not in favor of throwing money at teachers' salaries simply because the alternative is the horrible prospect of actually returning money to the taxpayers.
Postscript: Mark notes that starting cops, who need only two years of college, get $39K in Arlington. Does that make being a cop a "better" job than being a teacher? Given that starting cops are often on the graveyard shift, work weekends, and have a not inconsiderable risk of death or injury on the job, I hardly think so.
My wife and I were in Ann Arbor this past weekend looking at rental houses for the coming academic year. On Saturday, as we drove past Ann Arbor's
only biggest synagogue (Beth Israel), we noticed a small motley group of protesters holding up some placards outside. On closer inspection, it turned out that they were anti-Israel activists, who decided that the appropriate time and place to express their views was outside a synagogue during Sabbath morning services. Not keeping the Sabbath myself, I was sorely tempted to pull over and let them know exactly what I thought of them and their complete lack of respect for the congregants. However, we were on our way to the airport, and my wife hates it when I make a scene anyway.
UPDATE: Here's an article on the protestors, from a group called "Jewish Witnesses for Peace" (not all of whom are Jewish). According to the article, and a correspondent from Ann Arbor, even the "peace" community in Ann Arbor mostly thinks these protests are inappropriate. I don't think I'll be able to get through nine months in AA without making a scene at least once.