Saturday, August 18, 2007

James Taranto on Affirmative Action and Public Opinion Polling:

James Taranto of the Wall Street Journal's website has written an interesting response to my posts on affirmative action and public opinion polling (see here and here).

Taranto acknowledges that whether or not survey respondents support affirmative action policies depends on how the questions are worded. Strong majorities will say they support "affirmative action," but reject "discrimination" and "racial preferences." This pattern occurs not just in polls, but also on in referenda on anti-affirmative action ballot questions, with propositions banning "preferences" winning in California, Michigan, and Washington, and one banning "affirmative action" getting defeated in Houston.

However, Taranto claims that the "affirmative action" wording is misleading because "changing 'racial preferences' to 'affirmative action' is a change of meaning, not just wording. 'Affirmative action' is not only a euphemism for discrimination in favor of minorities; it is also a blanket term that encompasses other, less controversial policies." For example, Taranto quotes Justice Kennedy's concurring opinion in the Seattle school case that set off this debate, as an illustration of "non-preference" affirmative action policies:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means [than racial preferences in admissions], including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

Taranto's argument is not without some merit. But there are two major problems with it. First, as I pointed out in my initial post on this issue, using the term "preferences" is also misleading because it will lead many voters to think of traditional invidious discrimination against minorities rather than of remedial affirmative action preferences.

Second, most of the supposedly nonpreferential programs listed by Taranto and Justice Kennedy are in fact themselves racial preferences. If, for example, school boards "pursue the goal of bringing together students of diverse . . . races" by trying to increase the percentage of minorities at certain schools, they are still intentionally taking race into account in their decisionmaking and still trying to ensure that the schools in question have some particular percentage of minority students. Similarly, "strategic site selection" of schools based on the racial composition of the surrounding neighborhood is surely a form of race-based decisionmaking that advantages areas with one type of racial composition at the expense of others with a different type. The fact that officials are not using formal racial classifications but are instead using "facially neutral" means does not change the essential nature of what they are doing. Racial balancing cloaked in seemingly neutral language is still racial balancing. As I explained in this post on Texas' "ten percent" college admissions plan:

[I]f it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially "neutral" means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong for the same reason that Jim Crow laws were wrong, then "facially neutral" affirmative action systems such as the Texas ten percent are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

I do not contend that the majority of voters are clearly in favor of affirmative action. Rather, my view is that many of them don't know much about the issue, have not thought about it carefully, and therefore have unclear and often internally contradictory views. This is not in any way unusual, and is a natural consequence of voters' rational ignorance about public policy, which extends to a wide range of issues including some that are far more important than affirmative action. For that reason, I also question Taranto's claim that the voters in the California, Michigan, and Washington referenda reached a clear decision indicative of their true opinions because "they had the opportunity to hear both sides of the argument." While it is certainly true that they had the "opportunity" to hear both sides (something that they also had during the previous 25 years of intense public debate over affirmative action), it is unlikely that very many actually used that opportunity to study the issue in any detail.

UPDATE: Taranto has a rejoinder to this post here. I would first like to apologize to James Taranto for incorrectly referring to him as "Jim." I have corrected this in the original post. However, I remain unpersuaded by his substantive arguments.

In his new post, Taranto claims that initiatives that ban "discrimination" or "preferences" do not mislead voters by leading them to think of traditional discrimination against minorities because they "are intended to apply, to both forms of discrimination." It is true that they are intended to do that, but an unsophisticated voter reading the text is more likely to think of traditional discrimination when seeing the word "preference" or "discrimination" than of affirmative action.

Taranto also notes that his argument "is not that the rewritten language was deceptive but that it changed the meaning of the proposed law by expanding it to encompass nondiscriminatory forms of 'affirmative action.'" I don't think that this distinction undermines my point that questions banning "discrimination" or preferences will lead voters to think of traditional discrimination against minorities. Moreover, as I explain in my post above, the "nondiscriminatory" forms of affirmative action Taranto refers to are in fact preferences themselves.


Post Calls for Southwick Confirmation:

Today's Washington Post editorializes in favor of Senate confirmation of Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit:

BEFORE BEING nominated by President Bush to the U.S. Court of Appeals for the 5th Circuit, Leslie H. Southwick served for almost 12 years on the Mississippi Court of Appeals, where he participated in thousands of cases spanning the gamut of civil and criminal law. A panel of the American Bar Association unanimously found Judge Southwick to be "well qualified" for the promotion, its highest ranking. Yet congressional opponents have latched on to two opinions that Mr. Southwick joined, but did not write, to argue that he is unfit for the federal appeals post. . . .

Judge Southwick wouldn't have been our first choice for this vacancy. Nor do we like the results in the custody and racial slur cases. But we cannot find fault with Judge Southwick's narrow but ultimately legitimate interpretation of the law in those cases, and we do not find in his record the anti-gay, anti-worker caricature his opponents have drawn. Sen. Dianne Feinstein (Calif.), the lone Democrat on the Senate Judiciary Committee to vote in favor of his confirmation, got it right when she concluded that if senators were to examine Judge Southwick's entire career, including his stint as a judge advocate in Iraq, they would find a "qualified, circumspect person."


Friday, August 17, 2007

The Right to Earn a Living:

Tim Sandefur on a very interesting pending 9th Circuit case, in which the court will have to decide whether an occupational regulation that the government's own expert deems irrational is nevertheless constitutional.

Sandefur also addresses the right to earn an honest living more generally. I wasn't aware that the 10th Circuit held in 2004 that "absent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest." Such a holding is contrary to hundreds of years of Anglo-American thinking.

It's one thing to say, as courts have done in the past, that any public-spirited rationale for a law restricting employment rights constitutes a sufficiently rational basis to uphold the law, or even to say that a court will make up such a rationale if the state doesn't provide one, as the Supreme Court has occasionally done. I think this is wrong, but at least it's consistent with the long-standing ideal that restrictions on occupational liberty must have a public purpose, and not simply be an effort to promote private monopolistic interests. The idea behind this weak rational basis test is that courts should defer to legislative judgments, not that protectionist legislation is inherently legitimate.

It's much worse (though perhaps more honest) for a court to find that no public-spirited rationale for particular restrictive legislation exists, and to nevertheless uphold the law as a naked exercise of political power for the benefit of a special class. This type of law that has been disfavored in our constitutional tradition at least since the Statute of Monopolies was enacted in England in 1623.


Whatever Happened to Statutes of Limitations?:

Researchers in Iowa subjected children to emotional abuse in the 1930s, in an attempt to prove a theory about stuttering. Almost seventy years later, the "children" sued. Surely, the state would be acting properly to voluntarily compensate the victims in some way. But a lawsuit seventy years later, when almost all the perpetrators and many of the victims are dead?

On a separate note, it looks like much of the money will go to the estates of some of the victims. This sort of thing always strikes me as odd; but for whatever experiences the victims had, good, bad, or indifferent, their children would have never existed. I'm sorry my ancestors were oppressed by the czars, but from a purely personal point of view, I benefited. It's not simply that I got to grow up in the United States instead of Eastern Europe, is that I exist at all! Even though three of my grandparents lived under the czars' rule, I would think it just about as strange to get a reparations check from the Russian government as from the Italians (for oppressing my ancestors 2,000 years ago) or the Egyptians (1,400 or so years before that).


Why Transparency Doesn't Prevent Pork:

Jacob Sullum has an excellent article in Reason explaining why the recently enacted transparency reforms have had little effect in curbing porkbarrel spending. Despite the reforms, which mandate disclosure of earmarked pork projects, the new Democratic Congress is shoveling out pork at a rate almost equal to the record posted by the Republicans in 2005.

Sullum notes that transparency is unlikely to actually prevent pork because congressmen actually want to publicize pork that benefits their constituents (and thereby improves their odds of getting reelected). But why would congressmen want to publicize their involvement in a practice that, although it benefits certain narrow interest groups, is hugely unpopular with the general public? I answered that question in a post last year, where I predicted that transparency reforms would fail to curb pork (as they indeed have):

The real problem is not that we have too little information. It is that we can't effectively use the information we already have. The main reason why porkbarrel projects get approved is not so much that information about them is unavailable, but that ordinary voters have little incentive to read it and process it. As I have argued in many of my academic writings (e.g. - here . . .), most citizens are "rationally ignorant" about politics and often don't know even very basic political information . . . It is highly unlikely that any significant number of voters . . . will have either the time or the incentive to spend large amounts of time studying [a] new data base [on pork projects]. Few will take the time to determine which of thousands of federal grants are wasteful pork and which are legitimate expenditures. Even those voters who do study the database could well be misled by creative labeling. For example, even a clear case of porkbarrel spending such as the notorious "bridge to nowhere" is unlikely to be labeled as such in the data base. Rather, creative congressional staffers could call it something like "spending for essential transportation infrastructure." To be sure, experts will not be fooled, but ordinary voters easily could be unless they devote many hours to the task of smoking out the truth. While they may be willing to do so for a few particularly notorious and highly publicized projects, that is unlikely to happen in the case of the vast majority of porkbarrel grants. To be sure, activist organizations could do some of the spade work for the voters. But reading reports prepared by these organizations and determining which ones are accurate and credible is still a difficult and time-consuming task that few voters are likely to take on.

Unlike ordinary voters, the well-organized interest groups that benefit from pork have the time, expertise, and incentive to keep track of pork projects that serve their interests. Thus, disclosure of porkbarrel projects can help congressmen gather support from the project's beneficiaries without significantly reducing their standing with the general public (most of whom don't even know their congressmen's names, much less their positions on pork). As Sullum puts it, "[a]lthough honesty and openness are surely preferable to dishonesty and secrecy (in politics, at least), they're not an adequate solution to a government that does too much and is therefore a magnet for people seeking gifts and favors." Amen.

Related Posts (on one page):

  1. Why Transparency Doesn't Prevent Pork:
  2. The Case for Giving Porkbarrel Projects to Dead Members of Congress:

Indictment for Threatening Arab-American Institute Staff:

Patrick Syring, apparently a former State Department foreign service officer, has been indicted for threatening Arab American Institute staff, in violation of 18 U.S.C. § 245(b)(2)(C) (using threats to intimidate and interfere with employment based on race and religion) and 18 U.S.C. § 875(c) (transmitting threats in interstate commerce). Here are the messages mentioned in the indictment (all dated from July 17, 2006 to July 29, 2006) (some paragraph breaks deleted):

[Voice mail to the Institute:] This is Patrick Syring. I just read James Zogby's statements online on the MSNBC website, and I condemn him for his anti-Semitism and anti-American statements. The only good Lebanese is a dead Lebanese. The only good Arab is a dead Arab. Long live the IDF. Death to Lebanon and death to the Arabs.

[E-mail to two Institute employees; all e-mails sent to work addresses:] Zogby's anti-Semitic, anti-American statements (and those of the AAI in general) are abhorrent, repulsive and disgusting. The only good Lebanese is a dead Lebanese (as the IDF knows and is carrying out in its security operations, God bless them.) Fuck the Arabs and Fuck James Zogby and his wicked Hizbollah brothers. They will burn in hellfire on this earth and in the hereafter.

[Voice mail to an Institute employee:] Hello Valerie, you fucking Arab American shit. James Zogby and you are all Hezballah supporters. The only good Arab is a dead Arab... You God [inaudible] bitch.

[E-mail to an Institute employee:] You are a fucking anti-Semitic Arab-American stooge who sympathizes with Hezballah terror. You and your Arab American Institute fuckers should burn in the fires of hell for eternity. The IDF is bombing Lebanon back into the stone age where it belongs. Arabs are dogs. Long live the State of Israel. Death to Arab American terrorists. The only good Lebanese is a dead Lebanese.

[E-mail to an Institute employee:] You are a fucking Arab American terrorist, a Hezbollah sympathizer pig. James Zogby is a vile evil anti-Semitic pig terrorist member of Hezbollah who is attempting to destroy the State of Israel. God Bless America[.] God Bless the State of Israel[.] The only good Lebanese is a dead Lebanese [a smiley face graphic]

[Voice mail to the Institute:] Hello, I'm Patrick I'm in Arlington VA, and I think James Zogby is worse than Osama bin Laden. Since he supports Hezballah, he's an anti-Semitic motherfucker, and the only good Arab is a dead Arab.

[E-mail to several Institute employees:] I condemn James Zogby and the AAI for perpetrating the murder and shootings at the Jewish Federation in Seattle on Friday July 28 (as well as the killings in Israel). You wicked evil Hezbollah-supporting Arabs should burn in the fires of hell for eternity and beyond. The United States would be safer without you. God Bless the State of Israel[.] God Bless America[.]

It seems to me that the messages are indeed punishable, precisely because they fall into the "true threats" exception to the First Amendment. But it's important to be precise about why this is so, and to see why this differs from protected statements that some people will burn in Hell, that some people (e.g., exploiters of the poor, abortion providers, child rapists) deserve to die, or that the capitalist stooges will be the first up against the wall when the revolution comes. Consider, by way of analogy, the Arizona Supreme Court's unanimous and correct decision in Citizen Publishing Co. v. Miller, 115 P.3d 107 (Ariz. 2005), that this letter to an Arizona newspaper was constitutionally protected:

We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter.

After all this is a "Holy War" and although such a procedure is not fair or just, it might end the horror.

Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis.

Here's my thinking: First, though the Syring messages are at times simply condemnation, and though "The only good Arab is a dead Arab" may in context be seen as chiefly a reference to what should be done in Lebanon in the Hezbollah War, it may also in context be seen as a personal threat to the recipients in particular.

Second, while ambiguity might cut in favor of protection in some contexts — consider the Arizona court's statement that "Given the letter's conditional nature and ambiguity, we do not believe that a reasonable person could view that letter as 'a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals'" — two related matters cut against this here:

(A) This was a letter addressed to particular people, which may reasonably make those people fear that they are in the writer's metaphorical crosshairs.

(B) The letter was sent just to those people, who were extremely unlikely to be persuaded or enlightened by the letter. The value of the letter to public debate — and the danger to public debate of punishing ambiguous statements — is thus considerably less than if it were a condemnation of Arabs or other large groups published to the public at large, which might have its views changed (whether we think in a morally sound or unsound direction) by such arguments as the letter may contain.

My sense is that these points, and especially (B), have to be a big part of the distinction between a punishable threat and protected advocacy. The Arizona court put this in a somewhat conclusory fashion, by saying that "Speech that is part of this sort of public discourse [newspaper publication] is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations." But it seems to me that a deeper analysis would reach the same result. Threats communicated privately to particular people are both more likely to be reasonably seen as individually threatening, and can be punished with less loss to public debate. (There are of course intermediate fact patterns, such as threats that mention particular people but are said in public, which I think should probably also be punishable, at least if they are relatively unambiguous. But here we have one end of the continuum, with the Arizona letter being the other.)

So Syring's letters — assuming the indictment provides the correct transcriptions, and doesn't omit important context — ought to be punishable. But it's important that any published decision upholding such punishment, or any public or legal consensus that emerges upholding such punishment, especially for ambiguous statements such as these ones, focus on the individualized nature of the threat (both that it mentioned individuals and that it was communicated to individuals). The analysis should be quite different if the statements were general, and distributed to the public at large, as in the Arizona case; the statements would still be morally reprehensible, but they should still be constitutionally protected.


Debating the Case for Anarchy:

At Cato Unbound, economist Peter Leeson has summarized some of his innovative research showing that the anarchy is, at least in many situations, superior to government.

Peter's post is followed by responses by Bruce Benson (himself a leading libertarian anarchist scholar), Dani Rodrik (a prominent liberal economist), and Randall Holcombe, a nonanarchist libertarian scholar. Peter replies to the critics here (quite effectively, in my judgment).

I know there is a tendency among many to respond to defenses of anarchism with snickering or derision. Given all the harm caused by government (mass murder, genocide, repression, war, and so on), this tendency should be resisted. We should at least consider the possibility that there is a better way to organize society - that we can get all or most of the benefits of government while avoiding its often massive costs. Scholars such as Leeson, Benson, and David Friedman have made a serious theoretical and empirical case that anarchy is superior to government, even (perhaps especially) under modern conditions.

On balance, I remain unpersuaded (or at least far from wholly convinced). I will try to explain why in a follow-up post. However, I do buy the argument (advanced by Peter in his interesting paper on Somalia) that anarchy may be the best feasible alternative for some parts of the world. And I also believe that technology and economic institutions might develop to the point where this is true of more and more areas.

In any event, the case for anarchism needs to be taken seriously rather than just derided. If you are at all interested in anarchism, libertarianism, political economy, or the justification of government, you should check out Peter Leeson's essay and the responses it has generated.

UPDATE: I see that many commenters are confused about the definitions of "government" and "anarchy" as those terms are used in this post and in Leeson's(and also by most social scientists, legal scholars, and political theorists). Let me clarify. "Government" is simply an entity with a monopoly (or at least overwhelming preponderance) of force over a particular territory, usually financed by some system of coercive taxation. "Anarchy" is simply the absence, in a given area, of government as defined above. Thus, it is inaccurate (or at least misleading) to use "government" as a synonym for any and all forms of social organization or to claim that any system of lawmaking or law enforcement necessarily equates to government. People can use words any way the see fit, of course. However, using them in a way that basically defines anarchy out of existence is both unlikely to lead to a productive discussion and also contrary to the way the terms are used in most of the serious literature on the subject - by anarchist and pro-government scholars alike.

UPDATE #2: I have corrected the previously faulty link to Holcombe's response essay.


Kerr and Lederman Battle it Out Over FISA and the Supreme Court At BloggingHeads TV: Marty Lederman and I recently recorded an episode of BloggingheadsTV. (Yes, weirdly that makes it the second VC/Balkinization pairing this week. Go figure.) Anyway, the episode was just posted a few moments ago, and you can see it here.

  Marty and I spend about an hour debating the new FISA legislation. We then spend the next 25 minutes on the Boumediene case and the issue of habeas rights for detainees at Guantanamo and elsewhere. This was our first Bloggingheads, and it was a pretty interesting experience; let us know what you think (in a civil and polite way, naturally).

The Case for Giving Porkbarrel Projects to Dead Members of Congress:

The good that congressmen do is oft interred with their bones, but the pork they sponsor lives on after their deaths. In this post, Don Surber notes that three members of Congress have died so far this year, but that did not prevent the wasteful porkbarrel projects they lobbied for for their districts from passing (hat tip: Instapundit). However, just as it is best to allow only dead farmers to collect government subsidies for not farming, it would also be good to allocate as much of our porkbarrel spending as possible to the districts of dead congressmen. If only dead congressmen were allowed to sponsor pork in their districts, there might be a whole lot less of it.

Related Posts (on one page):

  1. Why Transparency Doesn't Prevent Pork:
  2. The Case for Giving Porkbarrel Projects to Dead Members of Congress:

Compensate for Conservation's Sake:

It is generally assumed that requiring compensation for regulatory takings would hamstring environmental conservation efforts. Forcing the federal government to pay landowners who lose the ability to modify their own land because it is designated as endangered species habitat or a jurisdictional wetland could well reduce the regulatory appetite of federal agencies (assuming the compensation came out of their budgets, rather than judgment fund), but would environmental protection suffer as a result?

In a new paper,"Money or Nothing:The Adverse Environmental Consequences of Uncompensated Land-Use Controls," I argue that the conventional wisdom is wrong. Compensating landowners for the costs of environmental land-use controls could actually enhance environmental conservation. Why? First, such compensation would reduce, if not eliminate, the incentives uncompensated land-use controls create to destroy or degrade ecological amenities on private land. Several recent empirical studies confirm theoretical predictions that such incentives are substantial, and lead to the significant loss of habitat. Because most endangered species rely upon private land, this is a big deal. Second, there is reason to believe that environmental agencies over-rely upon land-use control as a conservation strategy, and that substituting other conservation strategies could be more cost-effective. Requiring compensation, and mandating that such compensation be paid from agency budgets, could encourage greater consideration of trade-offs and thereby enhance the effectiveness of conservation programs.

A draft of the paper is now available on SSRN. I hope to expand on some of these points in a series of posts next week.

Related Posts (on one page):

  1. The ESA vs. Private Conservation:
  2. Compensate for Conservation's Sake:

The Ney Investigation and the Jefferson Case:

This week, former Congressional aide William Heaton was sentenced to two years probation for his participation in a corruption scheme involving former Rep. Bob Ney (R-OH), for whom he worked, and Jack Abramoff. According to he Washington Post Heaton "avoided jail time because of his unusual role in helping the FBI and the Justice Department convict his former boss." This "unusual role" consisted of wearing a wire and recording telephone conversations he had with Rep. Ney.

Over at Stubborn Facts, Pat ponders the implications of the D.C. Circuit's decision in the Rep. Jefferson case for the recording of conversations among legislators and their legislative staff.

Heaton also turned over documents from Ney's office and recorded colleagues in Ney's office. He taped many phone calls, and wore a wire for a particularly crucial 2 1/2 hour one-on-one conversation with Ney.

Part of Ney's criminal actions involved agreeing to insert false and misleading information into the Congressional Record. Under the speech & debate clause, Ney's actions in actually inserting the material into the Record would be inadmissible. Because of that, Heaton's taped confirmation of Ney's agreement to insert the false material was very important to the case.

Heaton conducted this taping, and turned over documents, while he was still Congressman Ney's chief of staff. As regular readers know, I recently opined that the decision from the U.S. Court of Appeals for the District of Columbia regarding the search and seizure of documents within Congressman Jefferson's office was both impractical and wrong on the law. However, given that the decision is currently the law in the District of Columbia (where Heaton and Ney were prosecuted), prosecutors should be very glad that Ney plead guilty before that case came down. . . .

Heaton turned over documents from Ney's Congressional office to prosecutors, without any review by Ney. Maybe none were privileged, maybe some where, maybe all were. Under the DC Appeals Court ruling, Congressman Ney would be entitled to review all such documents before they were turned over. The ruling did not hinge on the place being searched (a Congressional office in the Capitol) but on the exposure of the Executive to privileged legislative materials.

I would imagine that the same logic would apply to conversations between Ney and his staff. The speech and debate clause privilege, like executive privilege, is not precisely defined. Just as the executive privilege protects confidential discussions between the President and his closest aides, so too does the speech and debate clause privilege likely protect at least some communications between a Congressman and his top aides. After all, they often speak with each other through their respective staffs. Under the reasoning of the Jefferson court, it is impermissible for the Executive Branch to be exposed to such privileged communications prior to review by the Congressman for an opportunity to assert privilege, followed by an in camera review by a judge to review the claim of privilege.

Frankly, I think this situation sheds further light on the flaws of the Jefferson opinion. But until overruled or limited by a rehearing or by the Supreme Court, that's the law of the District of Columbia circuit. Under its logic, the FBI's use of Congressman Ney's chief of staff to disclose Ney's official documents and record his confidential communications with his own staff were improper.


Dubious-Sounding Study on Babies and Videos:

NY Times:

But now a survey by researchers at the University of Washington, just published in The Journal of Pediatrics, has found that for every hour of baby-video viewing per day, children ages 8 to 16 months knew six to eight fewer words than those who watched no videos.... But the alarming finding from the University of Washington survey applied only to baby videos. Television time, in contrast, seemed to have no effect, good or bad, on babies this young.

I can't think of any plausible reason that watching videos would retard children's verbal development, but watching t.v. would not. If anything, babies watching videos are likely watching videos geared specifically toward their needs and interests, like Baby Einstein, while babies watching t.v. are likely watching whatever animated nonsense happens to be on at the time.

Conflict of interest watch: Unlike most of my peers with kids the same age, Natalie watches videos sometimes. She especially like Teletubbies (English and Hebrew), Barney, Sesame Street 1-2-3 Count With Me (prefers the Hebrew version), and Yuval Ha'mibulbal, an Israeli video. Nevertheless, she's extremely verbal, and in three languages.


Fed Cuts Discount Window Rate.

At about 8:15 ET Friday morning, the Federal Reserve reduced the discount window rate, which was 6.25% (a 1% penalty over the stated 5.25% Fed Funds rate) to 5.75% (a .5% penalty) for borrowing at the discount window. The most heartening thing about it is the reversal in worrying much more about the economy:

Financial market conditions have deteriorated, and tighter credit conditions and increased uncertainty have the potential to restrain economic growth going forward. In these circumstances, although recent data suggest that the economy has continued to expand at a moderate pace, the Federal Open Market Committee judges that the downside risks to growth have increased appreciably. The Committee is monitoring the situation and is prepared to act as needed to mitigate the adverse effects on the economy arising from the disruptions in financial markets.

Oddly, Bill Poole, who was saying just a couple days ago that there was no reason for a cut, is not listed as voting either for or against today's Fed move. It was just reported on CNBC that he had a scheduling conflict.


The Fed, Part I: Avoiding Recession?

I confess to being puzzled by the Federal Reserve’s actions in recent weeks, as well as by the assumptions of even most of the Fed’s public critics that we are not likely to go into a recession. Without an economics degree, I may well be misunderstanding the evidence or the Fed's duties. I had begun writing a series of long posts on the Fed two weeks ago, but decided to wait to publish them to see if the Federal Reserve would lower interest rates before I waded into such a difficult policy thicket.

I had always thought that part of what turned financial hardships into recessions and recessions into depressions was severe restrictions in the willingness of financial institutions to lend and borrow money. For example, after the 1929 stock market crash, banks and brokerage houses reformed their excessively easy lending practices, leading to a massive contraction in the supply of money and its velocity.

Over the last year, we have had four straight quarters of lower prices on the sale of existing single-family homes. While price declines so far have been modest, the rising inventory, tighter lending standards, increasing foreclosures, and substantial non-price seller concessions suggest that nominal prices may not fully reflect the extent of the price decline and that things could get much worse in the housing market before they get better.

Since World War II, there have been three sharp housing price declines (in real dollars):

the 1947-48 housing price drop, preceding the Nov. 1948 – Oct. 1949 recession,
the 1979-82 housing price drop, preceding the July 1981 – Nov. 1982 recession (and also coincident with the Jan.-July 1980 recession), and
the 1989-91 drop, associated with the July 1990 - March 1991 recession.

With the ridiculously easy lending standards of the housing boom in the 2000s, an impending housing crisis was almost unavoidable, as Robert Schiller argued in March 2006.

Schiller presents housing price data through 2005 in real, inflation-adjusted dollars:

(click twice to enlarge)

The Federal Reserve, therefore, was and is faced with an extremely difficult challenge: to prevent a severe housing crunch from having its usual effect: driving the US economy into a recession, as the three biggest housing crunches since World War II have done.

For more on Federal Reserve policy, go to The Fed: Part II: What’s Goin’ On?


The Fed: Part II: What’s Goin’ On?

In Part I of this morning's posts on the Federal Reserve, I pointed out that, since World War II, significant housing price drops have always been followed by recessions or been coincident with them.

The Federal Reserve’s initial response to the subprime mortgage crisis was to claim last spring that it seemed likely to be “contained”:

Although the turmoil in the subprime mortgage market has created severe financial problems for many individuals and families, the implications of these developments for the housing market as a whole are less clear. The ongoing tightening of lending standards, although an appropriate market response, will reduce somewhat the effective demand for housing, and foreclosed properties will add to the inventories of unsold homes. At this juncture, however, the impact on the broader economy and financial markets of the problems in the subprime market seems likely to be contained. In particular, mortgages to prime borrowers and fixed-rate mortgages to all classes of borrowers continue to perform well, with low rates of delinquency. We will continue to monitor this situation closely.

As unlikely as that seemed to me at the time, I hoped that the experts at the Federal Reserve knew what they were talking about.

When Cerberus was unable to sell its paper to fund the Chrysler deal, the deal went through anyway by extending the bank bridge loans, but the stock market realized that subprime problems had spread to the market for commercial paper and private equity funding. Then it was revealed that the market for mortgage-backed securities was mostly not functioning, which made it difficult for mortgage lenders to raise money by selling off their existing mortgages. High-flying hedge funds and European banks started revealing problems. Unlike in downturns earlier in the year when precious metals, oil, and basic materials stocks tended to rally, in recent downturns harder assets (and stocks reflecting them) started doing poorly as well.

In the face of a credit crunch that was clearly not being contained, nine days ago the Federal Reserve released its decision on interest rates:

Economic growth was moderate during the first half of the year. Financial markets have been volatile in recent weeks, credit conditions have become tighter for some households and businesses, and the housing correction is ongoing. Nevertheless, the economy seems likely to continue to expand at a moderate pace over coming quarters, supported by solid growth in employment and incomes and a robust global economy. Readings on core inflation have improved modestly in recent months. However, a sustained moderation in inflation pressures has yet to be convincingly demonstrated. Moreover, the high level of resource utilization has the potential to sustain those pressures. Although the downside risks to growth have increased somewhat, the Committee's predominant policy concern remains the risk that inflation will fail to moderate as expected.

Frankly, I was surprised.

Data released in the last few weeks suggest that US inflation is moderating (running only 2.2% year over year) and job growth is slightly softer than expected, giving the Fed plenty of room to lower interest rates. Seemingly informed commentators report that dozens of European and Asian banks probably have nontrivial amounts of subprime paper in their portfolios. The commercial paper market is so frightened that concerns have been raised about whether money market funds can maintain their $1 asset value. Although most commentators say that they will be able to do so, many institutions are reported to be dumping even quality commercial paper in favor of treasury bills and notes in a flight to quality.

It would seem that with housing prices falling, commodity prices falling, stock prices falling, commercial paper prices falling, and CDO prices collapsing, net deflation (rather than inflation) would seem to be the bigger risk. And, of course, the author of the leading policy paper on deflation is none other than Federal Reserve Chair, Ben Bernanke (2002, discussed in Part IV posted below).

In my genuine ignorance, it seemed to me that, even if the Federal Reserve Board had acted promptly in late July or at its August meeting last Tuesday, avoiding a US recession (or a near recession) would be a tough task for the Fed. In a global economy, the Fed has much less control than it used to. By deciding to wait until the subprime mess degrades not only the inputs for economic growth, but economic growth itself, the Fed may decrease the chances that it will ultimately succeed.

Next: The Fed, Part III: Poole Says `Real Economy' Unhurt by Subprime Collapse.


The Fed, Part III: Poole Says `Real Economy' Unhurt by Subprime Collapse.--

Federal Reserve heavyweight Bill Poole gave an interview to Bloomberg:

William Poole, president of the Federal Reserve Bank of St. Louis, said there's no sign that the subprime-mortgage rout is harming the broader U.S. economy, and an interest-rate cut isn't yet needed.

"I don't see any impact as yet on the real economy or on the inflation rate," he said in an interview in the bank's boardroom. "Obviously, there could be an impact, but we have to rely on some real evidence."

Barring a "calamity," there is no need to consider an emergency rate cut, Poole said. His comments were the first by a Fed official since the U.S. central bank joined counterparts in Europe and Asia to inject emergency funds after a surge in money- market rates. The Fed has added $71 billion of reserves in the past five trading days. Poole, 70, said businesses have maintained their hiring and investment plans and banks have sufficient capital to weather the credit-market turmoil. The St. Louis Fed chief stressed that the best course is for policy makers to assess the latest economic data when they next meet Sept. 18. The comments contrast with the certainty that traders put on a rate cut next month.

"If the data confirm the market's view that the economy is sagging, we'll have to decide whether to share that view," said Poole, who votes on the rate-setting Federal Open Market Committee this year. He cited the monthly jobs, retail sales and industrial production reports as key gauges he'll be watching.

The yield on the September federal funds futures contract closed at 4.95 percent today, indicating at least a quarter-point reduction in the Fed's target. The benchmark two-year Treasury note yielded 4.29 percent, the furthest below the Fed's benchmark since 2001, when policy makers were lowering rates.

"There's no way the Fed is going to reduce interest rates before the meeting," said former Fed Governor Lyle Gramley, now senior economic adviser at Stanford Group Co. in Washington. "Bill is just being realistic that we haven't seen anything going on in markets yet that would warrant that kind of action."

Poole acknowledged that the credit-market turmoil will "stretch out" the "adjustment" in the housing industry. He said he couldn't predict how long the downturn will last.

The upheaval in credit markets was caused by deepening losses on securities backed by U.S. subprime mortgages. BNP Paribas SA, France's biggest bank, shocked investors Aug. 9 when it halted withdrawals from three funds just a week after its chief executive officer said the lender wasn't at risk. . . .

Poole rebutted comments from some Fed watchers that the central bank may be out of touch with market developments. The criticism followed comments the St. Louis Fed chief made to reporters on July 31 that the slump in stocks was "a typical market upset."

"No one has called up and said the sky is falling," Poole said today. "As I talk to companies, their capital spending plans are intact." . . .

[Referring to the housing market problems, Poole said:] "From experience, these things don't go on forever."

Poole said he didn't regret that the Aug. 7 statement retained a bias against inflation. He also said that while consumer price gains are "moving in the right direction," the "job is not done."

Inflation has slowed for four straight months under the Fed's preferred gauge, which excludes food and energy costs. . . .

Poole, who plans to retire next year, is a former economics professor at Brown University . . . .

Sometimes, as with the bursting of the bubble in 2000-2002, there may be little that the Fed can do to prevent the reduction by half of many people’s pensions. Other times, by looking realistically at the relative threat of serious inflation v. recession and setting interest rates where they should be to continue moderate growth by limiting the spread of a credit crunch, the Fed might be able to prevent a US recession or soften its length or depth.

As a non-economist, I recognize that I lack not only the Fed’s knowledge of the details of the US economy, but the expertise to evaluate that information with any confidence. I just hope that the Fed knows what it’s doing.

Next: The Fed, Part IV: Bernanke on Deflation.


The Fed, Part IV: Bernanke on Deflation.—

In 2002, before he was named Federal Reserve Chairman, Ben Bernanke gave an interesting talk on the dangers of deflation:

With inflation rates now quite low in the United States, however, some have expressed concern that we may soon face a new problem--the danger of deflation, or falling prices. That this concern is not purely hypothetical is brought home to us whenever we read newspaper reports about Japan, where what seems to be a relatively moderate deflation--a decline in consumer prices of about 1 percent per year--has been associated with years of painfully slow growth, rising joblessness, and apparently intractable financial problems in the banking and corporate sectors.

To be clear, Bernanke is not talking about a simple drop in investment assets, but a general deflation in consumer prices as well.

Bernanke then outlined how the Fed can avoid deflation:

[T]here are several measures that the Fed (or any central bank) can take to reduce the risk of falling into deflation.

First, the Fed should try to preserve a buffer zone for the inflation rate, that is, during normal times it should not try to push inflation down all the way to zero. Most central banks seem to understand the need for a buffer zone. For example, central banks with explicit inflation targets almost invariably set their target for inflation above zero, generally between 1 and 3 percent per year. Maintaining an inflation buffer zone reduces the risk that a large, unanticipated drop in aggregate demand will drive the economy far enough into deflationary territory to lower the nominal interest rate to zero. Of course, this benefit of having a buffer zone for inflation must be weighed against the costs associated with allowing a higher inflation rate in normal times.

Second, the Fed should take most seriously--as of course it does--its responsibility to ensure financial stability in the economy. Irving Fisher (1933) was perhaps the first economist to emphasize the potential connections between violent financial crises, which lead to "fire sales" of assets and falling asset prices, with general declines in aggregate demand and the price level. A healthy, well capitalized banking system and smoothly functioning capital markets are an important line of defense against deflationary shocks. The Fed should and does use its regulatory and supervisory powers to ensure that the financial system will remain resilient if financial conditions change rapidly. And at times of extreme threat to financial stability, the Federal Reserve stands ready to use the discount window and other tools to protect the financial system, as it did during the 1987 stock market crash and the September 11, 2001, terrorist attacks.

Third, as suggested by a number of studies, when inflation is already low and the fundamentals of the economy suddenly deteriorate, the central bank should act more preemptively and more aggressively than usual in cutting rates . . . . By moving decisively and early, the Fed may be able to prevent the economy from slipping into deflation, with the special problems that entails.

As I have indicated, I believe that the combination of strong economic fundamentals and policymakers that are attentive to downside as well as upside risks to inflation make significant deflation in the United States in the foreseeable future quite unlikely.

Bernanke's 2002 analysis appears to be very sound.


Brayton on Franck v. Balkin & Franck v. Pilon: I have not been able to blog lately due to travel and writing commitments, which is too bad because if I could blog, I would blog about these exchanges between Matthew Franck and Jack Balkin on whether Balkin is a faux originalist and Roger Pilon on whether the fundamental rights jurisprudence is a scam. (For links see below and also Jonathan's post on the Balkin exchange.) Unlike Oren but like David, I think it is, as I explain in my forthcoming Michigan essay, Scrutiny Land, to which I am going to have to add a paragraph about Abigail Alliance, but which I seem to have forgotten to upload to SSRN. But no time for that now.

Fortunately, Ed Brayton does the reporting on Matthew Franck's critiques of Balkin and Pilon, their replies, and then provides an excellent critique of Franck of his own. You can find all the links and Ed's insightful commentary here:

Balkin vs Franck, Round One:
There's a fight brewing over the concept of liberal originalism as a legitimate mode of constitutional interpretation, a fight between Matthew Franck of Radford and Jack Balkin of Yale. Balkin, you may recall from previous posts on the subject, has undergone an interesting transformation over the last few years, from legal realist to originalist; like myself, Randy Barnett and others, however, he argues that originalism often leads to different results than those argued for by conservative originalists.

The first shot was fired by Franck at Douglas Kendall and James Ryan for an article in the New Republic discussing how liberals can "take back the court" by developing "an affirmative message of what the Constitution means" to counter conservative originalism. But since Balkin was cited by them, he came in for some criticism too.
And here:

Pilon v Franck:
National Review legal scholar Matthew Franck seems to be getting into the habit of tangling with my favorite legal scholars lately. First it was Jack Balkin, now it's Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute. . . . It began with Pilon's op-ed in the Wall Street Journal (reprinted here) condemning last week's en banc ruling from the DC circuit overturning a previous ruling that terminally ill patients have a constitutional right to access to experimental drugs not yet approved by the FDA (Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach). Franck responded to that op-ed, leading to a Pilon reply, then a Franck reply, then another Pilon reply, and a final Franck reply. Got all that? Okay, let's look at the argument.


Balkin Responds to Whelan:

The discussion between the folks at NRO and Jack Balkin over the latter's variant of original meaning constitutional interpretation continues. In response to Ed Whelan's series of posts I noted here (and part four here), Jack Balkin takes to his own defense here. Balkin concludes:

my point-- which I have made repeatedly in my articles-- has been that originalism does not and cannot constrain judges all by itself. Originalism is a theory of fidelity in interpretation, not a theory of judicial review, and it is certainly not a one-size-fits-all method for ensuring judicial constraint. It is the bedrock or framework on which judicial practice should build. Judicial practice means starting with text and principle but not ending with it. Judges should consult all of the standard modalities of legal argument to flesh out and implement original meaning. These modalities include enactment history, expected applications, structural arguments, precedents (both judicial and non judicial), and the opinions and views of previous generations about the best interpretation of the constitutional text. In my view originalism is a framework that rules some interpretations out of bounds, but does not do most of the work of deciding specific cases. It leaves a great deal to be filled in by judges doing what judges normally do-- reasoning from the traditional modalities of legal argument. In addition, as I describe in my article, there are structural features-- like the appointments process and the fact that the Supreme Court is a multimember body-- that keep decisions within the mainstream in the long run.

Ed's version of originalism, by contrast, tries to do too much. That's why his method produces all the problems I have mentioned. My fear is that if Ed's method is the right one, then nobody who serves on the federal bench-- Justices Thomas and Scalia included-- can be a consistent originalist today, in which case it is very difficult to know what the debate is all about. By contrast, I am trying to give an account of originalism that is both faithful to the Constitution and that not only judges, but also ordinary citizens, can use.


Thursday, August 16, 2007

Pilon v. Franck on Abigail Alliance:

Another debate has broken out on NRO, this one between Bench Memos regular Matthew Franck and Roger Pilon of the Cato Institute over the U.S. Court of Appeals for the D.C. Circuit's Abigail Alliance decision. Franck thinks the ruling was correct. Pilon begs to differ.

Pilon initially attacked the opinion in the WSJ (which I noted here).

Franck critiqued Pilon on Bench Memos.

Pilon defended himself with this NRO essay.

Franck returned fire.

Pilon offered an addendum.

And Franck offered a final response.

For still more on Abigail Alliance, check out this chain of posts.


Jazz Drummer Max Roach, Dead at 83: Max Roach, one of modern jazz's most influential drummers, has died. Roach was a master, and can be heard on hundreds of recordings. I heard him live only once, in 1991, in a band with the great saxophonist Harold Land and the bassist George Morrow. I remember thinking during that set that in a bop quintet it really is the drummer who defines the group's sound. (I think I even have his autograph from that event, although I can't be sure; kind of a long story.)

  Here's a brief clip of Roach playing just a hi-hat:
For my favorite album with Roach as a leader or co-leader, don't miss the extraordinary Study in Brown.

Judge Exhibits Common Sense in Whole Foods/Wild Oats Case:

A federal judge has denied the FTC's request for an injunction to block the proposed merger between Whole Foods and Wild Oats. I was just telling co-conspirator Todd today that I thought that the FTC's theory in this case--that there is an organic and premium food grocery market separate from the regular grocery store market, even though any grocery store can carry organic and premium foods, and many, including Wal-Mart(!), do--was unusually silly.

Conflict of interest note: Guessing that no federal judge was likely to buy the FTC's theory, I recently took a small long position in OATS.

UPDATE: Here's Geoff Manne dissecting the FTC's argument in some detail over at Truth on the Market. Geoff calls the FTC's "conception of market definition ludicrous almost beyond belief."


Public Opinion and the Wording of Referendum Questions Banning Racial "Preferences" and "Affirmative Action" :

Several commenters on my last post make the perfectly valid point that strong public support for referendum questions banning racial "preferences" in the generally liberal states of California, Washington, and Michigan is an indicator of public opposition to affirmative action programs. True enough. However, all three of these referenda were worded as banning "preferences." In a 1997 Houston referendum, opponents succeeded in getting the city government to reword an otherwise similar ballot question as banning "affirmative action" rather than "preferences" (see here for an account critical of the City's decision). Sure enough, the initiative was defeated by a 55-45 majority, even in relatively conservative Houston. In referenda as in polls, whether the public supports affirmative action policies depends on how the question is worded.


German Physicists "Break" Speed of Light: Or that's what they're saying anyway. How did they do it? I'm guessing with a perpetual motion machine.

Robot on Tenor: I understand that robots can now do a lot of jobs once performed by people; playing a famous Coltrane solo on a tenor sax just isn't one of them. Nice try, though.

Interpreting Public Opinion Polls on Racial Preferences and Affirmative Action:

Some caution is in order in interpreting the recent Quinnipiac University survey results on the Supreme Court's recent decision restricting the use of race in assigning students to public schools. As Orin notes in his post, Quinnipiac asked respondents whether they approved of the Supreme Court's recent decision "that public schools may not consider an individual's race when deciding which students are assigned to specific schools." A massive 71% majority said that they "agree" with the Court's decision.

However, the true level of public opposition to affirmative action preferences in education is likely much lower than this. Public opinion scholars have known for years that most survey respondents will express hostility to anything described as a "racial preference" or as racial discrimination. This is particularly true if the question at issue - like Quinnipiac's - fails to distinguish between affirmative action and traditional racial discrimination against minorities. Many of the Quinnipiac respondents probably assumed that the Supreme Court forbade old-style racial discrimination against minorities.

By contrast, a recent ABC/Washington Post poll that described the decision as "restrict[ing] how local school boards can use race to assign children to schools" and noted that "Some argue this is a significant setback for efforts to diversify public schools, others say race should not be used in school assignments." It found that 56% "disapproved" of the decision, while only 40% said they approved. A July Newsweek poll (hat tip: VC commenter Tim Dowling) described the decision as "limit[ing] the use of race for school integration plans," and found that 32% of respondents supported the decision, while 36% opposed it (a statistical tie).

The ABC/Washington Post and Newsweek questions have their own flaws (e.g. - "restricting how local school boards can use race" is very vague, and "integration plans" introduces a term - "integration" - with positive associations). But the contrast between their results and Quinnipiac's is nonetheless striking.

More generally, strong majorities favor programs described as "affirmative action." For example, this 2003 Pew survey found that 57% of Americans support "affirmative action programs that give special preferences to qualified blacks, women, and other minorities, in hiring and education," while only 35% oppose them. Note that a large majority - at least in this survey - supported "affirmative action" even in a question that defined AA as giving "special preferences" to women and minorities (albeit perhaps only to "qualified" ones). The same survey found that 60% said that "affirmative action programs designed to increase the number of black and minority students on college campuses" are a "good thing," while only 30% said that they were "bad." Similarly, this 2005 USA Today poll found that 49% of American support "affirmative action programs for racial minorities," with only 43% opposed. As a general rule, the majority of the public will express support for a program defined as "affirmative action" for minorities or women, but will oppose anything described as a "preference" or as "discrimination."

While political elites and others in the know use terms such as "racial preference" and "affirmative action" interchangably and have clear, stable views on the issue, much of general public has far less clear opinions and fails to understand the connections between them. Some of this is due to a genuine desire many people have to support "affirmative action" while at the same time rejecting racial "preferences." Some is probably due to widespread rational political ignorance, which results in many people not understanding the implications of common political terms. Whatever the cause, we must be very cautious in interpreting polls on affirmative action and racial preferences. Small differences in wording can have a big impact on results.

UPDATE: While it is not directly relevant to the subject of this post, it's also worth noting that the Quinnipiac question described the Court's decision incorrectly. The Court emphatically did not hold that the government "may not consider an individual's race when deciding which students are assigned to specific schools." Instead, Justice Anthony Kennedy's controlling opinion in the close 5-4 decision clearly indicated that some uses of race are in fact permissible, just not the very flagrant ones at issue in these particular cases. Kennedy emphasized his disagreement with Chief Justice Roberts' “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”


Law Schools Blogging Their Way Up the U.S. News Rankings?: Sounds awfully unlikely to me, but Gordon Smith takes a closer look over at The Conglomerate.

Attitudes on Abortion, by Sex:

The Quinnipiac poll also confirms what I've seen in most polls -- there is generally virtually no visibly greater support for abortion rights among women than among men:

37. Do you think abortion should be legal in all cases, legal in most cases, illegal in most cases or illegal in all cases?

Legal/all cases21%12%29%23%21%21%

38. In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman's right to an abortion?


There might be a difference in intensity of belief that this doesn't measure, and there might be differences if the question were asked some other way. (Certainly the overall results vary quite a bit from poll to poll, which may in some measure reflect subtle differences in wording.) But, as with the other polls I've generally seen, on balance men and women seem to break down roughly the same way as to abortion rights, and certainly women do not consistently show materially more support for abortion rights than do men.


Public Opinion on the Seattle Schools Cases: Quinnipiac released poll results today from a poll of 1,545 American voters (including 611 Republicans and 717 Democrats) that included a question on the recent Supreme Court decision about use of race to assign students in public schools. Here is the question asked:
"As you may know, the Supreme Court recently ruled that public schools may not consider an individual's race when deciding which students are assigned to specific schools. Do you agree or disagree with this ruling?"
The results:
By a 71 - 24 percent margin, American voters agree with a recent U.S. Supreme Court decision that public schools may not consider an individual's race when deciding which students are assigned to specific schools . . . . Republican voters agree with the decision 79 - 17 percent, while Democrats agree 64 - 30 percent and independent voters agree 71 - 24 percent[.]
  Of course, poll results are no indication of whether the decision was right or wrong as a matter of constitutional law. But in light of recent claims that the Supreme Court is "dangerously out of balance," way off to the right of American public opinion, it's interesting to get a sense of where public opinion may in fact be on this question. Thanks to Lee Otis for the link.

What Does the Padilla Verdict Mean?: Here's my take. In the short term, the major significance of the Padilla verdict is that the Administration won't have to face the question of what to do next in this case. A guilty verdict only settles this one case, but this one case otherwise could have gone on for a long time and likely would have ended up back at the Supreme Court. In the longer term, this case adds one data point in favor of using the criminal justice system to prosecute terrorist suspects. Every case is different, and no one verdict can settle very much in this debate; each verdict can only be a single data point in a broader set. But this case adds a data point in favor of using the criminal justice system. Beyond that, though, this verdict doesn't settle very much. Most importantly, it doesn't change how Padilla has been treated all this time; it doesn't erase the last six years. So while this one case is over, the questions it raised should and will continue.

Jury Convicts Padilla on All Counts: News here. Talking head scripts here. Feel free to comment in the comment thread: What do you think?

UPDATE: My law school classmate David Markus adds comments at the SDFla blog.

Scripts for When Padilla Jury Hands Down Its Verdict: The Jose Padilla case is complicated, and those who need a script for commentary when the verdict is handed down in an hour or so should follow these simple guidelines:
  Script for Supporters of the Bush Administration: If the jury convicts, this proves how strong the government's case has been all along. If the jury acquits, this proves that you can't try to bring terrorism cases in a criminal court system.

  Script for Opponents of the Bush Administration: If the jury convicts, this shows how the criminal justice system can indeed handle terrorism cases. If the jury acquits, this shows just how weak the case against Padilla has been all along.
  Of course, that's not to say that these arguments are either equally strong or mutually inconsistent; the verdict alone won't shed light on these questions one way or the other. But those are the scripts that will be followed.

Verdict Reached in Jose Padilla Case: Three months of testimony, three defendants, and only a day and half of jury deliberation? I would guess some acquittals are coming, but then we'll know for sure soon: the verdicts will be announced in a hearing that starts at 2pm EDT.

The Audio from the NSA State Secrets Cases in the Ninth Circuit is now available here.

Wednesday, August 15, 2007

Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases: I didn't know that you could live-blog a federal court of appeals oral argument, but if we know anything about the Ninth Circuit, it's that everything is possible! To prove the point, Ryan Singel and David Kravets live-blogged today's oral argument in the NSA state secrets cases.

  Their take: "On the whole, the judges seem to be leaning towards allowing this case to continue in the district court -- which would be a victory for EFF and the Al-Haramain lawyers." A short-term victory, yes, but the label "Pregerson, Circuit Judge" will be sure to draw some attention on a cert petition. The audio of the argument should be up on the Ninth Circuit's website by tomorrow, but it's not up as of right now.

Related Posts (on one page):

  1. Ninth Circuit State Secrets Case:
  2. Live-Blog of Ninth Circuit Oral Arguments in NSA State Secrets Cases:

Erogenous Zoning:

The Court has generally upheld restrictive zoning laws targeted at sexually themed businesses. The usual rationale, though, has been that the business attracts unsavory clients who then misbehave -- for instance, patronize prostitutes nearby -- or whose very presence tends to drive down property values.

Here's an interesting twist, reported by the Miami Herald (thanks to BNA's Internet Law News for the pointer):

Miami's Code Enforcement Board ruled late Monday that Phillip Bleicher's Flava Works, an Internet porn production and distribution company, is illegally running an adult entertainment business out of a single-family home at 503 NE 27th St. -- zoned for residential use -- and ordered that those operations cease....

The website is, where visitors can, for a fee, watch live video streams from the Edgewater house, where chiseled young males are paid $1,200, plus room, board and meals, to live in the two-story home for a month and have sex with each other on schedule....

Assistant City Attorney Victoria Mendez argued that Bleicher also was running an illegal rooming house, but that violation was dismissed....

[Flava Works lawyer James Benjamin] argued that business transactions don't happen at the house .... "No member of the public came to the location to view, buy, trade or obtain any adult entertainment," Benjamin said.

But Mariano Loret de Mola, the city's director of code enforcement, testified that, on one occasion, he saw a man he recognized as "Dorm Dude" Breion, who is prominently featured on the website's main page, walk up to the Edgewater house and punch in a code to let himself in....

It turns out that in 2001, the U.S. Court of Appeals for the Eleventh Circuit had held a Tampa ordinance inapplicable to a similar Web site, but the board apparently took the view that the Tampa ordinance and the Miami ordinance were different enough to justify a different result here.


Mrs. Trumble, My Nominee for a St. Gabriel Possenti Award:

For more on the award, see here. Here's the newspaper story that prompts my nomination, from the S.F. Chronicle, Sept. 25, 1893, p. 3:

La Grande, September 25. -- The anti-Chinese agitation here culminated last night. An armed mob of 200 men met outside the city limits and midnight and marched to the Chinese quarter. They looted the houses, marched the Chinese to the city limits and ordered them to leave.

At a meeting held twelve miles from the city yesterday inflammatory speeches were made by an attorney named Esteb and others. The mob was organized at this meeting and was led to La Grande by H.C. Cotner, a rancher, and Joseph Truesdale, a saloon-keeper. The officials attempted to quell the riot, but were overpowered. Warrants have been issued for the arrest of the ringleaders.

About thirty of the Chinese took refuge at the residence of Chinese Missionary Trumble. His wife and daughter were alone in the house when the mob demanded the surrender of the Chinese. Mrs. Trumble appeared at the door with a rifle and announced that the first man to enter the house would be shot. The mob dispersed.

Thanks to Jean Pfaelzer's Driven Out: The Forgotten War Against Chinese Americans (2007) for the pointer (see p. 322).


The Two-Income Tax Trap:

Yesterday I published in the Wall Street Journal a column entitled the "Two-Income Tax Trap" which was derived from my earlier post here.

I have received a few emails pointing out that in the column, it is unclear what taxes are included in the percentages listed. To clarify, in the book that provides the figures, the percentages (24% in the 1970s and 33% in the 2000s) refer to the total of all federal, state, and local taxes. But the growth in the tax burden between the two periods is largely a result of the growth in the federal income tax portion of the tax bill and the fact that the wife's income pushes the family into a more progressive tax bracket.


Wife's "Anti-American Sentiments" (and Perhaps Anti-Semitic Sentiments)

Help Lead to Giving Husband Temporary Physical Custody of Children: Here's an excerpt from the temporary order in Ahmed v. Haroun (Minn. Dist. Ct. Sept. 7, 2005) granting the husband physical custody. The order was later superseded by a permanent order allowing joint physical custody based on a court-appointed custody evaluator's recommendation (see the appellate decision in this case).

c. Neither party alleges domestic abuse by the other party. Assuming Husband’s assertions regarding Wife’s conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children. In the same light, the Court has concern about Wife’s volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children.

d. In considering that Husband has lived almost his entire life in the Twin Cities area and has become a U.S. citizen, while Wife has not acclimated well to her relocation to the United States or American culture, has not sought US citizenship until after these proceedings commenced, voiced her anti-American sentiments, it is in the best interests of the parties’ minor children to be under Husband’s temporary physical custody.

Here is the passage from the husband's affidavit that contains what seem like the relevant "Husband's assertions regarding Wife's conduct in practicing her Muslim religion":

4. In Respondent’s mind, the 9/11 tragedy was justified; she believes that America deserved it for being pro-Israeli and because America is standing by watching Israel “slaughter” Palestine. She supports the terrorists’ action; she supports and believes in the extremism and Respondent supports Osama Bin Ladin and believes he is a “hero,” and a role model to aspiring extreme Muslims.

Shortly after the 9/11 tragedy, we went to Egypt on vacation. It was then when Respondent became so obsessed with the Muslim religion; her brother has become and extremist. Respondent from this point on was consumed by watching every religious program and surfing the net on 9/11 propaganda that Respondent began neglecting the household. Respondent has since been unstable and does not deal with day-to-day issues with reason.

When I met Respondent she did not wear a Hejab. After 9/11, Respondent first started wearing a Hejab. Respondent believes (according to her belief and her interpretation of the Koran), that women who don’t cover their hair “will be hung by their hair in hell,” which is not true at all. Respondent claims to be a practicing Muslim. If that were true we would be going through the Islamic Jurisprudence of Minnesota Committee in resolving our divorce and she would not sympathize with the 9/11 terrorists. I, on numerous occasions, tried to tell Respondent that we are living in a great country: America where sky is the limit, where we can be more open-minded, and be open to learning from all that is around us. She is not willing to adjust to the American culture and instead, she has significantly gone the other way towards anti-America sentiment. After 9/11, Respondent posted on the refrigerator a list of Jewish owned businesses which she vowed to “boycott”. I do not want her to teach the boys such racism and prejudice.

As our sons’ father, I have been a positive role model by teaching them good ethics and values. Respondent claims that I have not provided any care for the boys. This is not true! I have fed the children, bathed, changed, shopped, taken them on bike rides, read to them, said prayers with them, swam with them, have gone to almost all of their doctor appointments, taken them to a mosque and Sunday school. I know that I can provide the kids with love and the exposure to the day-to-day life experiences. This is why I ask the Court to grant me physical custody. I am concerned that if Respondent has sole custody of the boys, then she will teach the boys the extreme beliefs she is following. I want the boys to live the “American life” and not grow up being taught and to believe anti-American sentiments that Respondent is following.

Respondent has not liked being this country and does not believe in what it stands for. Respondent has asked me many times to transfer to RE/MAX franchise in the Middle East. During discussions regarding our divorce, she has asked me to buy her an apartment in Egypt.

The wife denied the husband's accusations, though the court seemed to believe the husband when deciding on the temporary order. One of husband's friends and coworkers also filed an affidavit saying that "while at their house for dinner, I was struck to see a list ... of Jewish businesses to avoid, posted on the refrigerator" (a list that he was sure wouldn't be the husband's doing, based on what he knew of the husband's views). The affidavit also reported on the husband's pre-divorce complaints about the wife's "attitude towards her faith, her new country, and her predilection for surfing the internet and watching Islamic satellite programming that was anti-American and extremist in tone," the wife's "fundamentalism and Anti-Sem[i]tic views," and the husband's "concer[] with the type of message and values that extreme Islamic fundamentalism would have on their children."

The husband also alleged various other misbehavior by the wife; the judge seemed to be referring to this when he talked of "Wife’s volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children." But it seems pretty clear that the judge relied fairly substantially on the wife's anti-American sentiments, and her "conduct practicing her Muslim religion," which seems to refer to the pro-jihadist and anti-Semitic views. The court of appeals likewise seemed to think the wife's views were important to the trial court's temporary decision; its summary of that decision read,

Ahmed initiated a marital-dissolution proceeding in 2005. He filed a number of affidavits accusing Haroun of sympathizing with terrorists and engaging in anti-Jewish activity. The district court issued a temporary relief order granting Ahmed sole physical custody of the couple's three young children. The district court noted that because of Ahmed's claims about Haroun's “conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children.” The district court, among other factors, based its decision on Haroun's failure to seek U.S. citizenship until after the proceedings commenced and Ahmed's allegations about Haroun's voicing anti-American sentiments.

In any case, this seems like a fascinating story, and an example of what I describe in my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU. L. Rev. 631 (2006) (as well as in this thread, which touches on another extremist-Islam-related parent-child speech case). A few questions for those who want to think further about this matter:

  1. Do you think that a reasonable judge could conclude — focusing only on the factual question, and setting aside the constitutional issues — that it's more in the child's best interests to be raised by a parent who is not anti-American, anti-Semitic, and fundamentalist Muslim than it is to be raised by a parent who is those things?

  2. Even if the answer to the first question is yes, do you think that the judge should nonetheless be barred from considering such parental views in the custody decision?

  3. If a judge is entitled to consider such ideological factors in this case, do you think that there should be any constitutional limits on child custody decisions that are based on such factors?


Michael Vick's Legal Woes Continue:

South Carolina Inmate Hits Michael Vick With '$63,000,000,000 Billion Dollar' Lawsuit Alleging Al Qaeda Ties:

Embattled NFL quarterback Michael Vick, facing federal charges related to his alleged participation in dogfighting, has been hit with a "$63,000,000,000 billion dollar" lawsuit filed by a South Carolina inmate who alleges the Atlanta Falcons star stole his pit bulls and sold them on eBay to buy "missiles from Iran," FOX News has learned.

Jonathan Lee Riches filed the handwritten complaint over "theft and abuse of my animals" on July 23 in the U.S. District Court in Richmond, Va.


Fierro v. City of Williamsport: There aren't many legal decisions that also discuss jazz music, especially in an entertaining way, but via The Party of the First Part I learned of a very amusing dissent in a 1956 Pennsylvania Supreme Court case about taxing jukeboxes: Fierro v. City of Wlliamsport, 120 A.2d 889 (Pa. 1956). Give me a second for the context, and then I'll get to the dissent.

  The state of Pennsylvania had passed a law limiting the power of municipalities to impose taxes; one allowance was that municipalities could impose taxes on "sales of admission to places of amusement." The town of Williamsport, Pennsylvania responded with a 10% tax "upon sales of admission to amusements" in the town; the ordinance stated that "'amusement' shall mean all manner and form or entertainment within the City of Williamsport, Pa., including among others, the following: juke boxes, pinball machines, and any other form of mechanical and/or electronic device for which admission is charged or paid."

  Fierro ran a bar featuring a jukebox filled exclusively with jazz records. Admission to the bar was free, but you had to feed coins into the jukebox for it to play songs. The town tried to levy the tax against Fierro's jukebox income, and he responded that he didn't have to pay because this was not a tax on a "admission to a place of amusement." The town responded that the "amusement" was the jukebox not the bar, and the "admission" to the jukebox was the coin used to play the jukebox. All but one of the Justices agreed with the town, and the court held that Fierro had to pay the tax.

All except Justice Musmanno, who penned an amusing dissent:
  I do not believe it is necessary to cite legal authority, if indeed any could be found on so obvious a matter, that a juke box is not a place of amusement. A place of amusement obviously denotes and connotes an establishment, indoors or outdoors, into which a human being enters for the purpose of amusement. It may be a building, it may be an enclosure, it may be a race track, but in every instance the introduction of a human body is contemplated and provided for.

  A juke box is not a structure into which a person can enter. It is not an enclosure. In the eyes and ears of many people, including the writer of this opinion, a juke box confined to ‘jazz’ records may be a nuisance. It robs the air of sweet silence, it substitutes for the gentle concord of stillness the wailings of the so-called ‘blues singer,’ the whinings of foggy saxophones, the screeching of untuned fiddles, the blasts of head-splitting horns, and the battering of earshattering drums. It makes a mockery of music, it replaces harmony with cacophony, tonality with discord, and peace with annoyance. If the purpose of the City Council of Williamsport was to tax the juke box out of existence as a nuisance and an enemy to the general welfare of its population, it certainly had the authority under general police power to do that, but it could not, merely as a means of raising revenue, play havoc with the English language.
(emphasis and paragraph break added)

"The Party of the First Part: The Curious World of Legalese": I just received a copy of a very clever book, The Party of the First Part: The Curious World of Legalese by Adam Freeman. It's mostly about common legal terms and where they originated, written in a fairly breezy and entertaining way. You can read an excerpt from the introduction here; the Amazon page is here.

Looking for Arguments for Limited-Use Exceptions to Normal Fourth Amendment Rules:

I'm looking for a very specific kind of argument, and I'd love some help. What I want is examples of arguments

  1. made by conservatives (this part is important)

  2. urging allowing government officials to engage in certain kinds of searches that would otherwise be unconstitutional

  3. but only on condition that the results of the searches wouldn't be usable in certain kinds of proceedings (any trials, trials for offenses other than terrorism-related offenses, and the like).

Here's a hypothetical example: A conservative scholar, judge, or commentator suggests, "We ought to allow the police to engage in house-to-house searches, even without a warrant or individualized probable cause, for dirty bomb materials. True, this would normally be unconstitutional, but the courts ought to recognize a new exception from the normal Fourth Amendment probable cause / warrant requirements here. And one thing that makes the exception permissible -- "reasonable" for Fourth Amendment purposes, because it's not an excessive invasion of privacy -- is that anything the searchers find (e.g., drugs, child porn, etc.) would, by the terms of the new exception, inadmissible except in prosecutions for crimes related to the making of dirty bombs."

I'm pretty sure I've seen such examples in the past, but I'm not sure where. If any of you can help, I'd be much obliged. (I don't want to explain my purpose right now because I don't want to affect people's judgment about what to pass along. I'm also not looking for arguments about whether such exceptions would be proper or improper; for my purposes, what's important is that such exceptions had been urged.) Many thanks!


Flashback: Housing Bubble is Really a Credit Bubble:

[David Bernstein, January 17, 2006 at 9:14am] Trackbacks Housing Bubble is Really a Credit Bubble?

I've seen some persuasive evidence, both scholarly and anecdotal, that a major factor driving the "housing bubble" is historically loose credit standards: no money-down (or even negative money down) mortgages, cursory (or even non-existent!) checks of reported income levels, qualification based on teaser rates that rise substantially after a year or two, and so on. Here's a nice anecdotal example:

Nevertheless, maintenance worker [name deleted], 30, and his wife, [name deleted], who cleans homes, were able to purchase their first home last year for $475,000 with no money down.

"It was a good price for us, and this is the house we wanted," said [name deleted], whose monthly mortgage on the 25-year-old house is $3,600. "We wanted four bedrooms, and everywhere else in the county it was too expensive. I don't know how we got this house, but we came in and saw it, and me and my wife said the first moment we saw it, 'Hey, this is our house.'"

Unless maintenance men and cleaning ladies get paid much better in San Diego than anywhere else I've ever lived, $475K at $3,600 a month is a heck of lot to lend this couple, especially since they've shown no previous ability to save (no money down).

At some point, when the teaser rates expire, and prices stabilize (which they seem to be doing already) so that mortgagees [sic: mortgagors] can't simply "flip" their properties when their monthly payments rise, this is going to get very, very ugly [emphasis added]. And the regulators who've dropped the ball on managing credit standards are going to look a lot like the regulators asleep at the switch in the '80s with regard to S&Ls.

UPDATE: It strikes me that hedge fund managers, risk assessors for banks, et al., should have been paying less attention to mathematical models based inevitably on past performance, and more on sources like that were documenting, both anecdotally and through finding obscure sources for the percentage of no-doc loans and th like, the complete collapse of lending standards in the late stages of the bubble.


Tuesday, August 14, 2007

The "Blog" of "Unnecessary" Quotations: For some reason, I find this really funny. Hat tip: "PatHMV"

My Amicus Brief in Warshak v. United States: Last week I submitted an amicus brief in favor of the government's petition for rehearing in Warshak v. United States, the e-mail privacy case currently pending before the Sixth Circuit. I have posted a copy of my brief here. (I was having trouble with the page numbers, so the version that appears here is unpaginated — sorry).

  My understanding is that the Sixth Circuit has ordered Warshak's attorney to file a response to the government's petition for rehearing by August 27th. I'll plan to post a copy of that brief when I get it, along with any additional amicus briefs that may be filed concerning the petition for rehearing.

Countries' Freedom vs. Countries' Names:

A fabulous item from Social Science++ (Brendan O'Connor); here's the graphic, but read the whole post:

Reminds me of my rule of thumb: If a discipline has the term "science" in it, it's not much of a science. No mathematicians would say they're students of "mathematics science."

Thanks to Language Log for the pointer.


Should Hillary Clinton's White House Records Be Disclosed?

The Los Angeles Times has an interesting report on the White House records of Hillary Clinton. Apparently, many of the White House files documenting her role in various policy matters will not be publicly disclosed until after the 2008 election. There's nothing nefarious going on here. It simply takes time for archivists to process the relevant materials, respond to FOIA requests, and redact privileged or otherwise confidential material.

At the Clinton library overlooking the Arkansas River, federal archivists clad in protective smocks are sorting through 80 million pages of records and another 20 million e-mails from a Clinton presidency that ended in January 2001. About 2 million of those pages concern the first lady's office.

A staff of 11 spends most of its time answering some 250 requests for documents submitted under the Freedom of Information Act. Requests are fulfilled largely on a first-come, first-served basis. Because the earliest requests involved other Clinton administration activities, the requests for the now-New York senator's records are further back in line, staff members said. . . .

Before documents are released, archives staff must read them and, by law, must redact material that they determine contains classified information, invades a person's privacy, reveals trade secrets, reveals confidential advice from presidential advisors or raises other concerns specified in the records law.

Asked how long it might be before Hillary Clinton's records are released, the library's chief archivist said it could take years.

"We're processing as fast as we can," Melissa Walker said.


Frum on Rove:

Former Bush speechwriter David Frum offers his take on Karl Rove's legacy:

As a political strategist, Karl Rove offered a brilliant answer to the wrong question.

The question he answered so successfully was a political one: How could Republicans win elections after Bill Clinton steered the Democrats to the center?

The question he unfortunately ignored was a policy question: What does the nation need — and how can conservatives achieve it? . . .

This was a politics of party-building and coalition-assembly. It was a politics that aimed at winning elections. It was a politics that treated the problems of governance as secondary. But of course governance is what incumbents get judged on — and since 2004, the negative verdict on President Bush’s governance has created a lethal political environment for Republican candidates.

Inspiring rhetoric and solemn promises can do only so much for an incumbent administration. Can it win wars? Can it respond to natural disasters? Can it safeguard the nation’s borders? Can it fill positions of responsibility with worthy appointees? If it cannot do those things, not even the most sophisticated get-out-the-vote operation can save it. . . .

Building coalitions is essential to political success. But it is not the same thing as political success. The point of politics is to elect governments, and political organizations are ultimately judged by the quality of government they deliver. Paradoxically, the antigovernment conservatives of the 1980s took the problems of government far more seriously than the pro-government conservatives of the 2000s.

I think Frum gets it about right. On most issues, the Bush Administration elevated the politics of obtaining and maintaining political power over articulating and advancing a desirable policy agenda, to the detriment of the nation and (eventually) the Administration itself.


Injunction Barring Defendant "From Making Any Comments That Could Be Construed As To Disparage [a Trademark]":

I blogged about this case last summer, and the Ninth Circuit will be hearing the argument tomorrow. Don Falk, an appellate partner at Mayer, Brown, Rowe & Maw (which is handling the case pro bono), is arguing it; I'm a part-part-part-time academic affiliate at the firm, so I had the pleasure of working with Don, Ian Feinberg, Dennis Corgill, and Pete Patterson on the brief.

For those who are interested in the case -- and I'm surprised it hasn't gotten more attention -- here's the opening brief, an amicus brief written by Mark Lemley on behalf of a bunch of intellectual property law professors and the Electronic Frontier Foundation, and an amicus brief filed by our own David Post and L.A. appellate lawyer Bruce Adelstein on behalf of (among others) InstaPundit, Larry Lessig, and Wikipedia cofounder Jimmy Wales. It's a fascinating case, and I'm surprised it hasn't gotten more attention.

Here's an excerpt from the Post brief that captures the matter well, I think:

The district court concluded that, because plaintiff had “established a recognizable logo and name ... through over three years of use,” and because defendant “recognized [plaintiff’s] legitimate trademark rights” in the past, any “comments that could be construed as to disparage upon the possible trademark” rights associated with that logo and name would likely constitute an actionable infringement of those rights. The breadth of this principle, and its potential for silencing constitutionally-protected speech on and off the Internet, is quite breath-taking.

For instance, the law professors among us might opine, in a media interview, an op-ed article, or a classroom discussion about the principles of trademark “genericide,” that some registered U.S. trademark -- “Kleenex™,” perhaps, or “Xerox™,” or “Starbucks™,” or “Google™,” or “Aqua-Lung™,” or “Hot Wheels™,” or “Miracle Whip™,” etc. -- is not valid because of its generic use; one of the public interest advocacy groups among us might make the same (or the contrary) argument in a press release published on its web site; one of the journalists among us might take up the argument (for or against) in a news analysis or opinion column; so might a commenter or editor at an online encyclopedia, or at one of the many thousands of blogs and websites across the Internet at which questions of trademark law and policy are discussed.

Our comments might look very much like the defendant’s in this case: “In my opinion, the word ‘xerox’ is generic and therefore in the public domain. The best way to keep ‘xerox’ (and the terms ‘xeroxed,’ ‘xeroxing,’ etc.) in the public domain is for as many people and groups as possible to continue to use the terms generically.”

It might even be the case that we had changed our minds about this very question in the past -- surely something we have all done many times, and which is both a part of, and in many ways the point of, the public debate on these questions.

Under the district court’s reasoning, our comments alone could be “construed as disparaging the possible trademark” associated with the “Xerox” name and subject us to liability for infringing the “Xerox” trademark. And this would be so even though we offered no goods or services in competition with Xerox, Inc., nor confused or misled any consumers about the source or origin of any goods or services.

And under Plaintiff’s reasoning, each such statement -- even in a law review article, a newspaper column, or a web site -- would constitute commercial speech, simply because it “draw[s] ‘attention to [Xerox’s services]’ and directly impacts [Xerox’s] ability to attract new [users], and retain current [users] and sponsors by harming [Xerox]’s commercial reputation via its Marks,” and “because it relates to [Xerox’s] Marks and the public’s perception of [Xerox].”

We cannot believe that the First Amendment tolerates such a restriction on the rights of academics, advocates, or public-minded citizens to express their opinions about the validity vel non of specific trademark claims. Trademark rights, of course, are public rights; they are granted by the people through our duly authorized representatives in the legislatures, courts, and administrative offices. Unfettered public discussion about those rights -- about how law is made and applied, in the abstract and in the particular, and about whether it is or is not being made and applied (in the speaker’s opinion) correctly -- lies at the very heart of the First Amendment freedom of speech. It is difficult to imagine an Order more at odds with this principle than the one issued by the district court in this case, and we respectfully urge you to overturn it.


Distinguishing the Scope of Executive Power From its Distribution:

Co-blogger Jonathan Adler, citing an important post by Cass Sunstein, focuses on a too-often ignored aspect of the debate over the "unitary executive:" the distinction between the scope of executive power and its distribution. The idea of the unitary executive is simply that whatever power the executive branch has should be concentrated in the hands of the president. There can be no executive officials (such as the independent counsel) who are not subject to presidential control and removal. As Article II of the Constitution states, "the executive power [of the federal government] shall be vested in a President of the United States." It does not grant any executive authority to officials not under presidential control.

This is perfectly consistent with simultaneously believing that the scope of executive power is relatively narrow, and that the president has no authority to ignore laws enacted by Congress, including those that constrain many military and foreign policy decisions. Congress can pass a variety of laws stating that no one in the executive branch - including the president - can do X. As I explained in a debate with John Yoo and Doug Kmiec earlier this year, Congress has broad powers to regulate the president's wartime activities in his capacity as Commander in Chief of the military under its Article I, Section 8, Clause 14 authority to "make rules for the Government and regulation of the land and naval Forces," and its authority to attach conditions to military appropriations (Yoo actually agreed with me on the latter point, though definitely not on the former).

Constraining presidential authority in this way does not go against the theory of the unitary executive. What Congress cannot do without contradicting the theory is pass a law allocating authority to decide whether to do X to executive officials who are exempted from presidential control and removal.

As Cass Sunstein puts it:

Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law.

Justice Alito explained it even more clearly at his confirmation hearing last year:

The question of the unitary executive . . . does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive.

As Alito explains, one can consistently support a unitary executive with a narrow range of powers (which is roughly my position). One can also consistently support a unitary executive with very broad, almost unlimited powers (John Yoo's view, and also that of the Bush Administration). You could - also consistently - endorse a nonunitary executive with broad powers. The latter was the position of liberal Democrats during the New Deal and for many years afterwards, when they endorsed both broad executive power and the creation of numerous executive agencies outside presidential control.

The Bush Administration's (in my view ill-advised) advocacy of both broad executive power and unitariness should should not be allowed to obscure the distinction between the two. Indeed, the concentration of executive power in the hands of the president might actually be easier to accept for many people if that power were relatively narrow rather than almost limitlessly broad.

Related Posts (on one page):

  1. Distinguishing the Scope of Executive Power From its Distribution:
  2. Defining the Unitary Executive:

United States v. Jose Padilla Closing Arguments: Latest news report here. If Padilla is acquitted on all charges, will the government once again declare him an enemy combatant? If so, I'll be very interested in the response from the General Counsel of Boeing.

AG Involvement in Capital Appeals:

The Los Angeles Times reports today that the Justice Department is preparing to issue regulations that will authorize the Attorney General to determine whether capital defendants received adequate legal representation at trial in state court proceedings.

he Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court. . . .

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.

Frustrated with the pace of changes — and believing that judges were part of the problem — death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation.

Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington.

Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin.

I am no expert on AEDPA or capital appeals, but this all seems somewhat bizarre to me. I recognize that the purpose here is to accelerate death penalty appeals — which can drag on for years and years — but it still seems like an odd (and potentially troubling) way to do it. Are there any VC readers that care to shed light on this reform and the proposed regulations?

UPDATE: Reader Mark Arnold, a civil attorney who received a court appointment to handle a habeas case, writes:

You'll find the statutes in chapter 154 of 28 U.S.C., §§ 2261 thru 2266. The Sixth Amendment does not require counsel in state habeas cases and, for many years, the quality of such representation was extremely uneven in many states. The idea behind chapter 154 was to give the states an incentive to provide better quality state habeas representation, by establishing strict time limits for federal habeas review for states that met the standard. The state has every incentive, of course, to do the minimum necessary to qualify for fast track. The new statutory provisions take the responsibility for determining compliance from the courts and vest it in the AG.

There's no doubt that AEDPA addressed a legitimate concern. Granting the legitimacy of capital punishment, which is settled law, the states have a perfectly legitimate interest in carrying out their sentences within a reasonable time. Decades-long delays in executions are inconsistent with that interest and horribly unfair to the victim's family. AEDPA just found the wrong solution. The right answer is to skip the state habeas.

The way it's done today, the capital prisoner has a right of direct appeal from his trial. If he wants to raise collateral issues, such as ineffective assistance of counsel, he has to file a state habeas claim in state trial court. He gets discovery, a hearing and an order from which he can appeal. Then and only then can he go to federal court where he gets a third level of review, though usually only on the record made in state court. If he gets a certificate of appealability, he can appeal that too.

This triple review is wasteful and unnecessary and it creates enormous opportunities for waiver. If a capital defendant has an incompetent trial counsel and a good habeas counsel, he likely gets a new sentencing hearing. If he has an incompetent habeas lawyer, he's a dead man.

Also, as noted by a commenter, here are the proposed rules at issue.

Related Posts (on one page):

  1. NYT on Speedy (Executions) Gonzales:
  2. AG Involvement in Capital Appeals:

Balkin & Franck on Originalism -- Whelan Weighs In:

Over at NRO's Bench Memos, Ed Whelan weighs in on the discussion between Matthew Franck and Jack Balkin on originalism and abortion with a series of three posts. The first post offers a brief summary of Balkin's argument, as Whelan sees it. This post also notes this paper by Michael Rappaport and John McGinnis critiquing Balkin's arguments. The second post draws out the distinction between Balkin's approach to original meaning and that endorsed by Justice Scalia (for whom Whelan clerked). The third post focuses on Balkin's interpretation of the equal protection clause, which provides the basis for Balkin's argument that the original meaning of the Constitution protects abortion rights. As readers might expect, Whelan and Balkin disagree.


Law Review Editors -- Don't Let This Happen to You: In response to my blog post on my revised essay, How to Read A Judicial Opinion: A Guide For New Law Students, I received a nice e-mail from a recent law school graduate who wanted to thank me for posting it. At first things started off very pleasantly. "Thank you for making such a reference available," the young lawyer wrote. "[H]ow I wish I had known of such an essay prior to my first day of law school!" But then signs of a very dreadful disease -- formerlawrevieweditorosis -- began to appear.

  It began apologetically. "[E]ven after graduation," he wrote, "I cannot seem to turn off the admittedly anal-retentive law review editor part of my brain." Soon the disease was on full display: "I noticed the following and was almost involuntarily compelled to grab a pen," he wrote. "Please tell me the craziness will lessen with time." And then the edits followed:
* Page 2 - the heading of "Concurring and/or Dissenting Opinions" is followed by a bolded period while all other similar headings above are followed by a bolded colon.
* Page 4 - the heading of "Terms in Appellate Litigation" is followed by a colon that is not bolded.
* Page 5 - the heading of "3) Know the disposition" is followed by a period that is not bolded.
* Page 5 - the second paragraph under heading number 4), the third sentence would read better as ... opinions in your Civil Procedure casebook ... [as opposed to opinion].
* Page 5 - the second paragraph under heading number 4), the last sentence seems to be followed by two periods.
* Page 5 - the footnote beginning on this page (starting with "The phrase") is inconsistent with previous notes - the size of the number is larger, there is no space after the number, and (most importantly), it should be numbered as note 3 (since it follows note 2).
* Page 6 - the last paragraph under heading number 4), the second sentence includes the word "thin" that looks like it should be "think" instead.
* Page 6 - the heading of "5) Understand the significance of the majority opinion" is followed by a bolded colon while all other similar numbered headings are followed by a bolded period.
* Page 7 - the first sentence under the heading of "The Practical Reason" looks to have two spaces between "an" and "essential" rather than one.
  I'm happy to receive these edits, of course, as I'll benefit from them when the piece reappears in print. But I did want to make sure incoming journal editors are aware of the serious health risks of their new positions: Editors, don't let this happen to you! Are there any other former journal editors in the VC readership who can provide support, a cybershoulder to cry on, or any other advice on how to cure or handle this dreaded condition? Does it go away with time? Or is the condition permanent?

CEO Compensation Update:

Last year, I wrote a post noting that homebuilder CEOs had received huge compensation packages in 2005. I argued that such compensation was a result of a booming industry resulting from macro factors beyond the CEO's control, and not individual performance, and this signified problems with the way executive compensation is structured. I mentioned Lennar, Toll, KB Homes, and Hovnanian as examples.

During the boom times, apologists claimed that the homebuilders had learned their lessons from past bad experiences, and that their CEOs were skilfully navigating their companies to avoid the typical boom and bust cycle by limiting land holdings and other measures. Hmm. As this chart shows, Lennar, KB, and Toll shares have all declined more than 50% in the last two years. Hovnanian--whose CEO received almost fifty million dollars in '05--is down 80%. Of the four, the best performing company (at least as judged by share price) has been Lennar, whose CEO received the least in '05--a measly 22 million, compared to the 135 million received by KB's CEO. Somehow, I don't think any of the CEOs--some of whom sold massive amounts of their personal holdings while using shareholder money for buybacks--are going to be returning to shareholders any of their undeserved bounties.


Congratulations to Meghan Poirier,

the Wake Forest law student who argued and won the Fourth Circuit case I mentioned last week — the one in which the Fourth Circuit reaffirmed felons' right to possess a gun in self-Defense and while delivering it to the police, and therefore set aside a 15-year sentence imposed after the defendant's lawyer wrongly advised the defendant that no such defense exists.

A National Law Journal article reports that Ms. Poirier is "a West Point graduate and now a captain in the U.S. Army who is about to begin training in the Judge Advocate General corps." "[Prof. John] Korzen [who supervised Poirier's brief as part of an appellate advocacy class] said of Poirier, 'She did it all. She did the research and drafting of the briefs. We had three or four practice rounds of oral argument.'" Well done, Captain!


Monday, August 13, 2007

Appalling Misuse of Federal Katrina Aid:

Last week, I was in Bay St. Louis, Mississippi, a Gulf Coast town devastated by Katrina. I was stunned by how much damage remains two years after Katrina: people living in trailers where their homes used to be, tin roofs (or no roofs), wood blocks where windows used to be, exposed foundations where homes used to be, etc. So I'm more than a little peeved to discover that federal Katrina aid is going to Tuscaloosa, Alabama, two hundred miles inland. I spent some time in Tuscaloosa earlier this year, and there's absolutely no reason that the town should be getting Katrina aid, much less for luxury condos.


The Liberal Fourth Circuit?: This Washington Post article on the future of the Fourth Circuit is a few days old, but definitely worth reading. For more on the five vacancies on that Court, see this post at Confirm Them.

BloggingHeads: Jack Balkin and Me on the First and Second Amendments:

Check it out here -- we cover the Second Amendment, the Establishment Clause, the Free Exercise Clause, and the Free Speech Clause. I had a great time doing this; Jack is always fun to talk to, and very pleasant even when we disagree (which we do a lot less than some expect, on these issues). Hope you have as good a time watching it!


Bringing Communist Human Rights Violators to Justice:

During a recent visit to Poland, I met a Cracow taxi driver who - upon learning that I was born in Russia - told me that he had spent three years as a forced laborer in the Soviet Union. Unlike in the case of Nazi war criminals, and more recent human rights violaters in Rwanda, Bosnia and elsewhere, there has been very little effort to identify and punish human rights violaters from communist regimes.

Part of the reason is that some of the greatest communist atrocities occurred many years ago, during the era of Lenin and Stalin. However, the Polish taxi driver I spoke to did his forced labor in the early 1980s. Nor was he an isolated case. Large-scale use of forced labor - both inside and outside Gulag-style concentration camp systems -was a common feature of communist states well into the 1980s, as Arch Puddington documented in this 1988 book. In Cuba and North Korea, it remains so to this day. Other massive human rights violations also occurred in quite late communism's history, notably large-scale Soviet war crimes in Afghanistan, repression and execution of dissidents in Eastern Europe, and mass murders in Cambodia and Ethiopia.

The perpetrators of many of these atrocities are still alive and their offenses are recent enough to investigate and punish. That is surely likely to be true of the Soviet and Polish communist officials who ran the forced labor program that scooped up the Cracow taxi driver.

But with the important exceptions of Romania's execution of communist dictator Nicolae Ceausescu and some of his key henchmen, and Ethiopia's efforts to prosecute some of its former communist officials for their role in the terror famines of the 1980s (trials that I admit I don't know enough about to comment on), there has been remarkably little effort to bring the perpetrators of communist atrocities to justice. Germany has tried some former East German officials, but most of those convicted received ridiculously short sentences or no prison time at all. Far more effort has been devoted to efforts to punish much lesser offenders from right-wing regimes, such as those in Chile and Argentina.

I understand, of course, that it is not possible to punish all the offenders, and that sometimes valid political considerations weigh against doing so. Nonetheless, I think that it is surely possible to get to at least some of them. At the very least, advocates of strict enforcement of human rights norms and especially advocates of "universal jurisdiction" for major human rights violations should make far more effort to bring communist human rights abusers to justice than they have so far. Not only might doing so help bring to justice some of the world's most egregious criminals; it could also rebut claims that international human rights law is just an excuse to flagellate right-wing regimes and Western democracies, while ignoring far greater abuses by communist and other anti-Western governments.

UPDATE/CONFLICT OF INTEREST WATCH: I suppose I should mention that my own father did a few weeks of forced labor on a Soviet collective farm in the 1970s. This kind of thing was so much a part of ordinary life in the USSR - even in the relatively less oppressive post-Stalin era - that its relevance did not occur to me until after I had written the original post. Nonetheless, it was forced labor, and is a human rights violation under international law. At the same time, I should stress that my father's experience, while quite unpleasant, is not really comparable to what the Polish taxi driver endured (he spent three years in the mines of remote Magnitgorsk). And neither was as bad as what happened to people who did forced labor in Gulags and similar camps outside the USSR.

UPDATE #2: When I say that right-wing regimes such as the military governments in Chile and Argentina were guilty of "lesser" offenses than communist ones, I mean that the number of their victims was much smaller, not that each individual case of murder, torture, etc., was lesser; unfortunately my wording was not as precise as it should have been. The former governments each killed several thousand innocent people. By contrast, the communist governments I discuss in the post each killed at least ten times more than that, even if one excludes the even bloodier Stalin-era crimes. For example, the Ethiopian communist regime killed at least 500,000 people (see book linked under Ethiopia above), North Korea several million, and the Brezhnev to Gorbachev era Soviet Union at least several hundred thousand. For detailed figures, see the Black Book of Communism, and statistical analyses by political scientist Rudolph Rummel. An innocent person killed by right-wing generals was just as much a victim as one killed by the communists. But there were a great many more of the latter.

Related Posts (on one page):

  1. Bringing Communist Human Rights Violators to Justice:
  2. The Real Che Guevara:

Should We Teach the Rule Against Perpetuities? Part II - My Decision:

Thanks to everyone who commented on my earlier post asking whether I should continue to teach the rule against perpetuities to students in my introductory Property course. I did not expect this topic to attract as much interest as it has!

I have now decided that I'm only going to make a very minimal effort to include the RAP in the course: I will assign a brief description of it from the textbook (along with a more detailed description of the modern rules that have replaced it), but not do a class discussion of it or include it in the final exam. That way, students who want to know it will have a chance to do so, but very little time and effort will be wasted on it.

Some of you have presented various arguments as to why the RAP deserves to be included in the course. Let me briefly note the two most important: the claim that the RAP helps students understand the historical development of property law, and the possibility that it might help teach them to "think like a lawyer." The first argument is surely true: the RAP dates back to late medieval times and knowing its history surely does provide some insight into the development of the law. However, I already have other sections of the course that describe the development of property law from its medieval roots. The RAP adds relatively little to these sections and does so in an extremely inefficient way because it takes a lot of time and effort to explain it in a way that most students will understand.

The "think like a lawyer" argument also has some validity. However, there are many other parts of the Property class - and other courses in the required law school curriculum - that achieve the same goal. In a broad survey course where time is at a premium, I don't want to force students to learn doctrines that have no utility other than improving their thinking skills - especially if I can instead improve those skills by teaching them material that is actually important and useful. On a different note, I am less convinced than many other law professors that "thinking like a lawyer" is really fundamentally different from other forms of logical reasoning.

The bottom line: teaching the RAP does have some value, but not enough to outweigh the substantial opportunity costs. It's not that learning the RAP is worthless; it's that the time and effort needed to learn it will be better spent on other things.

UPDATE: Some commenters on my earlier post also express skepticism that the RAP is so difficult to learn. My experience is that some students do indeed grasp it almost immediately. But many others take a long time to do so, and a substantial minority never fully understand it. Some of this may be an indication of my shortcomings as a teacher, and some may be a case of students just being lazy. However, I know that other property professors at various schools have had similar experiences, and I also know that quite a few students have trouble with the RAP even after making an extensive effort to grasp it. If the RAP were a truly important rule crucial to understanding modern property law, I would say that the students (and I) just have to suffer through it. But it isn't, so we shouldn't.

UPDATE #2: As noted in my original post, my argument applies only to teaching the RAP in an intro Property course. There may be other and better arguments for teaching it in specialized courses on estate law or legal history.

Related Posts (on one page):

  1. Should We Teach the Rule Against Perpetuities? Part II - My Decision:
  2. Should We Teach Law Students the Rule Against Perpetuities?

Comparative Regulation of Blogs as Campaign Speech:

My colleague Allison Hayward, an expert in campaign finance regulation and political speech, has a new article on "Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S., German, and EU Approaches." You can download it here.



Salon runs an interesting interview about "The religious state of Islamic science," subtitled "Turkish-American physicist Taner Edis explains why science in Muslim lands remains stuck in the past — and why the Golden Age of Mesopotamia wasn't so golden after all." Edis, the interviewee, is the author of 'An Illusion of Harmony: Science and Religion in Islam'"; Steve Paulson, the interviewer, is the executive producer of a Wisconsin Public Radio science program. Much worth a read, in my view.

If you do read it, let me know please what you think of the criticisms lodged by Ace of Spades HQ (thanks to InstaPundit for the pointer). Here's the introduction to the Ace of Spades criticism:

What is shocking is the interviewer's combative apologism on behalf of the benighted and backward state of Islamic science — or pseudoscience, in the main. A science writer for an NPR station, no less.

Watch how the interviewer continues insisting, in the face of an expert telling him "no, no, no" that Islamic religious orthodoxy prevents genuine science. And then set a pillow beneath your jaw as he begins arguing on behalf of creationism — Creationism, that most hated of all beliefs, to liberals — so long as the creationism in question is of a suitably privileged foreign, non-western culture. And then it just gets more ludicrous as this supposed writer on science issues for NPR begins arguing for a more humanistic approach to science — one that incorporates Islamic style religious dogma, apparently — as preferable to cold, clinical (monstrously successful) Western science.

There's no "right" way to do science, this NPR science writer seems to believe, just different views of it. And, of course, the ultimate moral this story is driving towards is that we can both learn equally from each other.

My sense is that Ace of Spades gets the intentions and the substance of the interview pretty badly wrong, partly by simply assuming that each of the interviewer's questions expresses the interviewer's personal views. But interviews aren't always like that (and my guess is that the best interviews are almost always not entirely like that). Interviewers sometimes present the other side's perspectives to be fair, or to make for a richer discussion. And sometimes they present the other side's perspectives to give the interviewee a chance to more effectively shoot them down (especially when the piece is in a context where opinion, rather than fair-minded news coverage, would be acceptable).

Remember that an interview is supposed to be question/short answer/question/short answer/..., not an oration by the interviewee. The interviewee is usually mostly limited to getting his point across in response to a question. Now it's true that the question could just echo the interviewee's perspective (especially when the interviewer and interviewee agree). But hearing people agree is no fun, and not very rhetorically effective. Bland questions consciously designed to be entirely impartial also aren't much fun (though they may sometimes be fairer). Creating a bit of debate, even if the interviewer is expressing a view he doesn't himself endorse, tends to produce a more interesting exchange (especially in radio, where this interviewer seems to come from).

So when the interviewer asks, "But those things [science and pseudoscience] were also mixed together in Europe's scientific revolution several centuries later. Isaac Newton was fascinated by alchemy and astrology," it's far from clear that he's really saying that Islamic science today is at a comparable stage to European science in Newton's time (though even if it were, that would be quite an indictment of Islamic science, which would then be 300 years behind the West), or otherwise engaging in "combative apologism" for Islamic science. Rather, he might well be trying to give an opening that the interviewee can use to explain why Islam really is radically behind the West — an opening that the interviewee of course seizes.

This interpretation, I think, is supported by the introduction to the interview, which I take it was likewise written by Paulson. (It carries his byline, and my sense is that Salon is the sort of operation where one writer does the work on each piece.)

This story illustrates the obstacles that face scientists in Muslim countries. While it's always risky to draw generalizations about Islam, even conservative Muslims admit that the Islamic world lags far behind the West in science and technology. This is a big problem for Muslims who envy the economic and military power of the United States.

What's so striking about the Muslim predicament is that the Islamic world was once the unrivaled center of science and philosophy. During Europe's Dark Ages, Baghdad, Cairo and other Middle Eastern cities were the key repositories of ancient Greek and Roman science. Muslim scholars themselves made breakthroughs in medicine, optics and mathematics. So what happened? Did strict Islamic orthodoxy crush the spirit of scientific inquiry? Why did Christian Europe, for so long a backwater of science, later launch the scientific revolution?

That hardly sounds like an attempt at "combative apologism on behalf of the benighted and backward state of Islamic science." (As to the supposed "argu[ment] on behalf of creationism," I just don't see it at all. [NOTE: I sent a draft of this to the Ace of Spades, and he followed up with a post acknowledging, "One thing I didn't mention in my email reply, which I now concede: In fact, the interviewer does not make any sort of statement or argument which is explicitly supportive of a creationism, so long as it's of an Islamic sort. That is my gloss on the article, and perhaps an unfair gloss. However, given the rather obvious sympathies the author has for 'Islamic science' -- obvious to me, at least -- I would argue the interviewer is arguing on behalf of a 'science' which incorporates important articles of faith (as well as morality). Perhaps it's an unfair reading -- certainly some readers think so -- but I read the interviewer in being open to such ideas, and even arguing in their favor."])

If you have a chance to read the interview (which I stress is quite interesting for its own sake) and the Ace of Spades HQ critique, please let me know if I'm missing something. So far, it seems to me like the Ace of Spades HQ critique misses the mark. [NOTE: I sent a draft of this to the Ace of Spades, and he defends his interpretation; please look also at that defense.]


"Reading the Volokh Conspiracy Pays off in Cash,"

reports a reader:

Remember the escheating scandal? My check for $76.90 arrived today. Still no explanation but I'd rather have the money and no explanation than the explanation and no money.



Someone's Been Watching Too Many Old Sitcoms:

The labor pains were coming, so Jessica Hodges got going. The 26-year-old bank teller from Burke sped toward Inova Fairfax Hospital, but before she got there, the law got her — 57 mph in a 35 zone. Reckless driving.

Hodges's labor pains subsided — they turned out to be a false alarm — but the agony from her ticket is mounting. She was found guilty of the July 3 offense and given a $1,050 civil fee on top of a judge-imposed $100 fine and court costs, making her one of the first to be hit with Virginia's new "abusive driver fees," which have been greeted by widespread public outrage.

"It's crazy," said an unregretful Hodges. "Having a baby's more important. Of course I'm going to speed."

Now hear this: despite what Fred Flintstone did when Wilma went into labor, there is no reason to speed to the hospital just because a pregnant woman starts having contractions. First, almost all labors last hours, not minutes. Second, in general, the longer one stays away from the hospital, the better. One reason C-section rates are so high in the U.S. is because overeager soon-to-be mothers (and their worried partners) insist on going to the hospital during the early stages of labor, and many hospitals have formal or informal policies of not letting a woman labor there for more than a certain number of hours.

If a pregnant woman is in a safe indoor location and the baby is actually coming out, she still shouldn't rush, or be rushed to the hospital. Call 911 instead; better to give birth at home with paramedics around than to give birth in a car stuck in traffic with no medical assistance in the vicinity. (I'm not making this stuff up; I learned it all while my wife was pregnant. FWIW, I was born prematurely on the bedroom floor after a less than ten-minute labor, with the physician who fortunately lived across the street assisting after the birth.)

Oh, and if a woman is sufficiently deep into labor that it makes sense to go to the hospital, for God's sake don't let her drive herself there! A woman having massive contractions every few minutes while worrying about her impending delivery has to be the very definition of a distracted driver. The new Virginia fines for speeding are excessive, but kudos to the judge in this case for not buying the "I was in false labor so I had to speed" excuse. (The "I have two babies at home and really can't afford a $1,000 fine," on the other hand, seems like grounds for a reduction of the fine. For that matter, reckless driving is more than 20 mph over the speed limit, and I wonder whether the average radar detector, under actual working conditions, is sensitive enough to have a margin of error of less than 4%.)


New York Times Misses the Median vs. Arithmetic Mean Distinction:

The New York Times reports:

In study after study and in country after country, men report more, often many more, sexual partners than women.

One survey, recently reported by the federal government, concluded that men had a median of seven female sex partners. Women had a median of four male sex partners. Another study, by British researchers, stated that men had 12.7 heterosexual partners in their lifetimes and women had 6.5.

But there is just one problem, mathematicians say. It is logically impossible for heterosexual men to have more partners on average than heterosexual women. Those survey results cannot be correct.

Well, heterosexual men generally can't have more partners on average than heterosexual women, where "average" means "sum up the partner counts and divide by the number of people." I say generally because there are possible boundary cases (e.g., if you asked all live men and women in the U.S. how many opposite-sex sexual partners they've had, and they answered completely accurately, the numbers wouldn't match because some of their partners are now dead, or are now outside the country, or because the partners are prostitutes and the study doesn't ask prostitutes or ask them enough), but it's generally so. As the article points out, "invoking women who are outside the survey population cannot begin to explain a difference of 75 percent in the number of partners, as occurred in the study saying men had seven partners and women four." (Perhaps prostitution might explain the difference, but the numbers that I've seen suggests that it doesn't suffice.)

But the medians may well be very different. Just as a sample, imagine a population with men A, B, C, D, E, and women P, Q, R, S, T, in which the sex partners map out this way:


The median number of sex partners for the women is 1 (since the women's partner counts are 1, 1, 1, 5, 5); the median number of sex partners for the men is 3 (since the men's partner counts are 2, 2, 3, 3, 3). The arithmetic means for both are 2.6, since there are 13 male-female pairings; but the medians differ substantially.

Now this having been said, the bottom line is likely still correct; as I understand it, there is substantial reason to believe that men overreport their sexual partner counts and women underreport them. And it may well be that the 6.5 and 12.7 numbers are arithmetic means (the article doesn't say), which would be substantial evidence for this theory. But the "men had a median of seven female sex partners" / "[w]omen had a median of four male sex partners" data is extremely weak evidence, if evidence at all; and it surely can't be confounded with the "average" in the sense of arithmetic mean, which the article does.

Thanks to reader John Crawford for the pointer.


We Heart Obama:

The Politico reports that Senator Barack Obama appears to be leading the pack of Presidential contenders on university campuses.

Obama, whose website features an “Academics for Obama” page, raised nearly $1.5 million in the first half of the year from people who work for colleges and universities, according to an analysis of campaign finance data by the nonpartisan Center for Responsive Politics. And that’s 55 percent more than the $939,000 brought in by the next biggest professor’s pet, fellow Democratic senator Hillary Rodham Clinton of New York.

The next two biggest recipients were Republicans Mitt Romney, the former governor of Massachusetts, ($448,000) and Rudy Giuliani, the former mayor of New York ($366,000).

Overall, of the more than $7 million in federal campaign contributions from academia identified in the center’s analysis of Federal Election Commission data, 66 percent went to Democratic candidates and committees. That’s roughly the same percentage partisan split in academic contributions as in 2006 and 2004.

(Link via Election Law.)


Can the Golden State Catch a Greenhouse Waiver?

California would like to become the first U.S. jurisdiction to regulate greenhouse gas emissions from automobiles. It has already adopted regulations to this effect. Yet before the rules can be enforced, California must obtain a waiver of preemption from the Environmental Protection Agency (EPA). Without such a waiver, the new standards will be preempted by the Clean Air Act.

The political pressure favoring a waiver is strong. California Governor Arnold Schwarzenegger has threatened to sue the EPA if a waiver is not issued. Several other states have also taken up California's cause, hoping to adopt the regulations as their own if and when a waiver is granted. But will there be a waiver? That is the question.

Although California has received numerous Clean Air Act waivers before, I am not convinced that California is entitled to this waiver under the law. As I testified before Congress earlier this year, I think there is a reasonable argument that a waiver for greenhouse gas emission controls -- unlike waivers for controls on other pollutants -- may not satisfy the statutory requirements. At the very least, I think that the statute is sufficiently ambiguous that the EPA could safely deny the waiver request.

This does not mean that the EPA will or should deny the waiver, however. As a practical matter, I expect the EPA to grant California's waiver request near the end of the year, and I suspect that decision will be upheld in court. (Though California's rules may still be preempted by other provisions of federal law.)

As for what the EPA should do, I think that is a closer call. There is a a very strong argument for granting states greater flexibility in environmental protection. I believe states should be able to obtain waivers from all manner of federal environmental requirements where local conditions warrant. But that still does not mean California should get this specific waiver. As a policy matter, the case for waivers is strongest where environmental problems are localized and the costs of protection measures are not externalized to other jurisdictions, and weakest where the environmental problems and the costs of protections extend beyond jurisdictional bounds. I would be much more comfortable with a California waiver here were there greater opportunities for waivers throughout environmental law.

This is basically the argument I put forward in a short paper analyzing California's waiver request, Can the Golden State Catch a Greenhouse Waiver?. The abstract and full text are available on SSRN here. My prior blog posts on California's waiver request are here.


The Land of the Volokh Brothers' Birth:

A conversation with a friend of mine led me to wonder — is there anyone out there who reads the blog in Ukraine, where Sasha and I were born? I wouldn't expect there would be many, since the blog is mostly about American matters; but if there are some, please say hello in the comments, tell me where are you are and what you do, and leave a paragraph or two about what Ukrainian life is like for you and about what possible use the Conspiracy could be to you over there.


Reviewing The Supreme Court Opinions of Justice Clarence Thomas:

NRO has just posted my review of The Supreme Court Opinions of Justice Clarence Thomas: 1991-2006 - A Conservative's Perspective by Brooklyn law professor emeritus Henry Mark Holzer. The book is a quick read, and ably summarizes the key elements of Justice Thomas' jurisprudence. Nonetheless, I was a bit disappointed. I was hoping for greater engagement with and critical analysis of Thomas' ideas. One can admire Justice Thomas' doctrinal consistency and commitment to principle, without descending into hagiography. As I conclude the review:

Holzer accurately describes Thomas as a “thoughtful conservative” whose “reputation among laypersons is not commensurate with his achievements.” Justice Thomas has indeed distinguished himself on the Court as an able and articulate explicator of the original meaning of the Constitution. Thomas fans will not doubt enjoy Holzer’s overview and summary of Thomas’s unique contribution to the Court, and its hint at the further contributions that are yet to come. The substance of his distinctively conservative jurisprudence is worthy of more critical treatment and discussion, however. Supreme Court Opinions is a good reference work regarding the justice’s body of work — something like an annotated greatest hits — and should please Justice Thomas’s many fans, but ultimately more work will be needed to earn more converts to his cause.


Rove to Leave White House: Karl Rove has announced that he is leaving the White House on August 31. CNN says that he "plans to write a book about his days with Bush and eventually teach politics on the university level." I just hope he isn't planning on a second career as MC Rove.

Defense Earmarks--An Anecdote:

A while back, I met someone at a party, an engineer, who told me he worked for a defense contractor that thrives on earmarks. As he described it, so far none of the products he'd worked on was actually being used, and many of them didn't even work. He told me that two things happen after an earmarked project gets underway: either no one pays attention, in which case the company never bothers to finish a working prototype, but gets paid anyway once the paperwork gets filled out, or someone actually monitors the project, in which case a (barely) working, but useless, prototype is built that sits on a shelf somewhere because the Pentagon didn't want it to begin with. Not suprisingly, this engineer wasn't enjoying his job and was actively seeking employment elsewhere.

The big caveat is that this was just "cocktail party" conversation, I can't vouch for the accuracy of the anecdote, and I don't even remember the guy's name, or exactly where I met him. But as criticism earmarks continues to resonate, I can't help thinking about the possibility that we're spending who-knows-how-much money a year on defense earmarks for completely useless products, and that whole companies are thriving on this basis.


Wave Power in New York:

The East River is many things. If Verdant Power has its way, add to the list: "source of electricity." Verdant has installed underwater turbines in the East River in an effort to harness the power of the underwater current, but it has not been easy. Today's New York Times reports on the company's travails.

Weeks after they were formally dedicated by Mayor Michael R. Bloomberg, six underwater turbines that turn the river’s currents into electricity have been shut down for repairs and a basic redesign. The East River’s powerful tides have been wreaking havoc with the giant turbine blades since the first two were installed in December.

“But the good thing is that there’s more power in the East River than we thought,” said Mollie E. Gardner, a geologist for Verdant Power, which owns the equipment.

This is the reality of new energy projects, which often seem more attractive on paper than they do in practice. Verdant’s principals, along with the state officials who have supported the project with large grants, say the setback is only temporary, even expected — a way to work out the kinks before moving onto the next, expanded phase.

Despite a string of mishaps that has taken a bit of the luster off the project, there is still sufficient optimism about tidal power to attract investments, and even some old-fashioned competition.

It is interesting that the biggest obstacle to Verdant's plan is not NIMBYism or excessive regulation, but the East River itself. Building turbines that can generate power and remain in operation has apparently been a challenge. It also does not help that much of the underwater work on the turbines has to be compressed into short windows when the river's current subsides.

Like virtually every viable source of power, the underwater turbines may yet raise environmental concerns, as it is unclear whether turbine installation impacts fish populations.

Mr. Taylor said the company has had to spend more than $2 million to study the impact that the turbines might have on fish in the East River. The water is monitored 24 hours a day with sonar equipment to see whether fish are harmed by the blades, which move at a comparatively languid 32 revolutions per minute.

The company has found that the few fish who are picked up by the sonar tend to swim around the blades.

“So far, there haven’t been any strikes,” said Ms. Gardner, the geologist who works for Verdant.

Still, federal regulators want Verdant to conduct studies on species like sturgeon and some turtles that are rarely seen in the East River.

If the kinks are worked out, and the fish seem okay, Verdant hopes to install 300 turbines in the East River. This would generate enough electricity to power 8,000 homes, according to Verdant's estimates, and likely bring the power cost down to a competitive price.


How Earmarks Survive:

Robert Novak has a column this morning on how earmarks survive in the new Congress:

With the midnight hour approaching on Saturday, Aug. 4, near the end of a marathon session, Democratic and Republican leaders alike wanted to pass the defense appropriations bill quickly and start their summer recess. But Republican Rep. Jeff Flake's stubborn adherence to principle forced an hour-long delay that revealed unpleasant realities about Congress.

Flake insisted on debating the most egregious of the 1,300 earmarks placed in the defense money bill by individual House members that authorize spending in their districts. Defending every such earmark was the chairman of the Appropriations defense subcommittee: Democratic Rep. John Murtha, unsmiling and unresponsive to questions posed on the House floor by Flake. Murtha is called "King Corruption" by Republican reformers, but what happened after midnight on Aug. 5 is not a party matter. Democrats and Republicans, as always, locked arms to support every earmark. It makes no difference that at least seven House members are under investigation by the Justice Department. A bipartisan majority insists on sending taxpayers' money to companies in their districts without competitive bidding or public review.

On a personal note, I've known Jeff Flake since his think-tank days when we worked together on a project. He was a man or principle then, and it is refreshing to see that he's lasted this long in Congress and continues to stick to his guns. It seems that he is one of the few Republicans left in office who believes he belongs to the party of less government.

UPDATE: Those interested in following (or supporting) the web campaign against earmarks should check out Porkbusters.


How to Read a Case -- A Law Student's Guide: Classes will be starting up soon at law schools around the country. Incoming first-year law students might be interested to know that I have just posted a substantially revised version of my essay, "How to Read a Judicial Opinion: A Guide for New Law Students." (.pdf, 7 pages) The purpose of the essay is to help entering law students understand how to read a legal opinion. It covers what's in a legal opinion, common terms, what to look for, and the role of the case method.

  I'm happy to report that the essay will be published in a few months in my favorite legal journal, The Green Bag. Plus, it will be published under a Creative Commons license that will allow the essay to be distributed for non-commercial uses. That means that if you're a professor and you want to assign the essay or just make it available to your students, please feel free to do so.

Sunday, August 12, 2007

Defining the Unitary Executive:

Cass Sunstein has a useful post on the idea of the "unitary executive" at the University of Chicago Law School blog. the aim of the post is to explain what the debate over the unitary executive is -- and is not -- about.

The most important point is that the claim for the unitary executive is not a general claim about the President's power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. You can also believe that the president can do a lot on his own, or a lot in violation of Congress' will, while also accepting the view that Congress can create independent agencies and independent prosecutors. In short, the debate over the unitary executive is an important but narrow one, and it is a small, distinct subpart of the general debate over presidential power.


Conservation for Thee, But Not for Me:

The Los Angeles Times reports:

Los Angeles Mayor Antonio Villaraigosa challenged residents this summer to "change course" and slash their water use by 10% in the face of a historic drought.

But records show that the mayor and several other top city officials have long been heavy water users themselves.

In Villaraigosa's case, even if he had made a 10% reduction at the two homes where he has lived since winning election in 2005, he still would have used nearly twice as much water as comparable properties in the vicinity.

City Atty. Rocky Delgadillo and Councilman Tony Cardenas surpassed the mayor, using more than twice the number of gallons over the last two years as typical property owners in their parts of town.

In fact, a review of Department of Water and Power documents shows that at least nine of the city's 18 elected leaders used higher than average amounts of water -- sometimes a little, other times a lot -- over the last two years.

Related Posts (on one page):

  1. Conservation for Thee, But Not for Me:
  2. Wind Energy for Thee, But Not for Me:

Dick Cheney on Why George Bush Was Right Not to Invade Iraq: Here's a brief clip from an April 1994 interview that recently appeared on YouTube.

Predicting the Supreme Court's Decision in the DC Gun Rights Case: Kenneth Jost has a very clever column at predicting the Supreme Court's opinion in the D.C. Gun rights Second Amendment case (assuming the Court agrees to hear it). My predictions are somewhat similar. In particular, I agree that the Court probably would conclude that the Second Amendment protects individual rights, and I agree that the Court wouldn't think it obvious that this means the DC ban must be struck down in its entirety.

  At the same time, my predictions are different from Jost's in the following ways:

  1) I doubt the Court would announce that Second Amendment restrictions are subject to only rational basis scrutiny. Unless the Court wants to apply a sort of ratcheted-up version of rational basis scrutiny, some higher intermediate scrutiny seems more likely.

  2) I don't think the Supreme Court would remand on all of the provisions of the ban. I think the Court would spend much more time than the D.C. Circuit did on evaluating which parts of the ban can survive under the relevant standard, and that it may have a mixed result and may remand for parts. But I tend to doubt the Court would simply remand on all parts of the ban.

  3) If Justice Kennedy writes the opinion, I doubt the opinion would hinge on the role of guns and self-defense today versus at the founding. Rather, the focus would more likely be on the timeless meaning of the Second Amendment, which is just as valid today as it was generations ago. Of course, this doesn't mean restrictions of such rights can't be abridged in light of a significant countervailing interest, but I don't think it hinges on the specifics of how guns are used today as compared to in the past (something that varies a great deal from community to community rather than from generation to generation).

  Those are my guesses, at least -- all assuming that the Court agrees to hear the case. Thanks to How Appealing for the link.

Sunday Song Lyric: During my junior year in college I saw a Broadway production of the Threepenny Opera (styled "3 Penny Opera"), featuring Sting in the lead role of MacHeath. The musical was written by Bertolt Brecht with music by Kurt Weill. A synopsis of the show can be found here.

"Threepenny Opera" was somewhat considered avant garde when first produced, but it did not strike me that way in 1989. I was already familiar with Brecht, having performed in The Caucasian Chalk Circle in high school. I also suspect that many of Brecht's theatrical innovations seemed far less revolutionary decades after they were introduced to theater audiences.

"Mack the Knife" is undoubtedly the most famous song from the show, having been famously covered by Louis Armstrong, Ella Fitzgerald, Bobby Darin, and Nick Cave, among many others. Simon Cowell apparently believes it was the best song ever written (though I doubt because of this version).

"Alabama Song" (aka "Whiskey Bar") [from the Brecht-Weill collaboration "The Rise and Fall of the City of Mahogany"] is also well known, having been immortalized by The Doors. Others covered the track subsequently, with varying degrees of success. David Bowie was up to the task, but I can't say the same about Marilyn Manson.

For today's song lyric I thought I'd select something less well known. I considered the lyrics of the "Cannon Song" (aka "Army Song"). That song is somewhat timely, almost reminiscent of the "Baghdad Diarist." Rather than wade into that controversy, I opted for "Solomon Song" instead (which, incidentally, I much prefer). Here is the first verse:

You all have heard of Solomon
The wisest man on earth
He understood humanity
And so he cursed the hour of his birth
And saw that all was vanity
How great and wise was Solomon!
And yet before the day was done
The world could see where it would end
His wisdom brought him to his bitter end
How fortunate the man with none
The full lyrics can be found here.