Saturday, November 17, 2007

Do Newspaper Endorsements Matter?

I examine the question in my latest media column for the Rocky Mountain News. The column also looks at how the newspapers conduct their pre-endorsement research.


A Constitutional Amendment on Foreign Law:

The morning plenary panel at the Federalist Society's annual lawyers' convention concerns "he Constitution & American Exceptionalism: Citation of Foreign Law." First up is Georgetown University law professor Nicholas Rosenkranz who lays out the basic case against relying upon foreign or international law in constitutional interpretation. Rosenkranz makes several points (and my summary us unlikely to do justice to his remarks). The Constitution, he notes, draws its legitimacy from the consent of the governed and the American Revolution was motivated, in part, in opposition to the imposition of foreign rule on the colonies. Thus it would be quite incongruous for the meaning of the Constitution to be dependent upon the decisions and views of foreign governments or international institutions, rather than the considered views of the American people. Changing the meaning of the Constitution, Rosenkranz notes, is to be done through constitutional amendment, not the changing conceptions of justice embraced by foreign governments and international organizations.

The most interesting part of Rosenkranz's remarks is a proposal for a constitutional amendment declaring that foreign and international law should not be relied upn to interpret or construe the U.S. Constitution. At one level this is quite a radical proposal — perhaps killing a gnat with an elephant gun, Rosenkranz acknowledges — but Rosenkranz offers a few reasons why such an Amendment would be quite in line with the American experience. First, Rosenkranz notes, there is precedent for amending the constitution with rules of constitutional construction. Both the 9th and 11th Amendment are, by their own terms, rules of interpretation, explaining that the Constitution should not be interpreted in a particular fashion. Further, Rosenkranz observes, both Amendments stated interpretive rules that (at least many of) the Founders believed should have gone without saying. They reaffirmed the prevailing understanding of the constitutional text more than they amended it (though the 11th Amendment also overturned a Supreme Court opinion adopting a contrary view). There should be little doubt, in Rosenkranz's view, that the Founders would have also disapproved of relying upon foreign law in constitutional interpretation. So such an amendment would help reinforce, or perhaps restore, an original understanding of the Constitution, and reinforce the idea that the American Constitution as the ultimate expression of the will of the American people.

Now I don't for a minute expect such an amendment to pass — nor, do I suspect, does Professor Rosenkranz. Yet if reliance upon foreign and international law in constitutional interpretation is wrong, as Rosenkranz argues, there is nothing particularly incongruous about saying so in the Constitution. His is an interesting proposal that may help inform discussion and debate over the role of foreign law in constitutional interpretation.


Friday, November 16, 2007

"Some Advice From Your Public Defender": This "advice" to clients of public defenders has been around for a while, but a public defender who reads the VC thought the essay "would give your non-public defender readers a fairly accurate window into a part of the legal practice they don't know." If you're interested in criminal law or the life of criminal defense attorneys, it's well worth a read.

God Forbid that a University President Should Condemn Bigoted, Dangerous, Oppressive Political Leaders

-- especially when that coincides with the Bush Administration's views. Here's statement from 70 Columbia professors:

We speak for a growing number of faculty members at Columbia University who believe that President Bollinger has failed to make a vigorous defense of the core principles on which the university is founded, especially academic freedom. Academic freedom lies at the heart of what we do as faculty members: teach, generate new knowledge, and sustain the critical capacities of the society at large. It encompasses, among other values, the autonomy of the University in the face of outside threats and pressures, a determining role for faculty in the governance of the University and especially in the shaping of its research and teaching programs, the insulation of tenure and promotion decisions from outside interests, and the creation of an environment that enables the fullest and freest exchange of ideas. The events of the past few years have created a crisis of confidence in the central administration's willingness to defend these principles.

We note, in particular, the following issues:

1) In the face of considerable efforts by outside groups over the past few years to vilify members of the faculty and determine how controversial issues are taught on campus, the administration has failed to make unequivocally clear that such interventions will not be tolerated. When outside groups attempted to sway tenure decisions, the President of Barnard issued a forthright statement rejecting such efforts; the President of Columbia has failed to do so.

2) Decisions on key issues like the "globalization" of the university, the establishment of satellite campuses in other countries, the enlarged size of the undergraduate student body, the reduction in the size of the graduate student body, the hosting of controversial speakers, the relative diminution of the humanities, and other issues at the heart of the university's mandate, are made with no apparent consultation with faculty. We learn about these decisions only when they are announced after the fact.

3) The president's address on the occasion of President Ahmadinejad's visit has sullied the reputation of the University with its strident tone, and has abetted a climate in which incendiary speech prevails over open debate. The president's introductory remarks were not only uncivil and bad pedagogy, they allied the University with the Bush administration's war in Iraq, a position anathema to many in the University community.

4) In the name of the University, the president has publicly taken partisan political positions concerning the politics of the Middle East in particular, without apparent expertise in this area or consultation with faculty who teach and undertake research in this area. His conflation of his own political position with that of the University is unacceptable.

We believe that the time has come for the faculty to reassert its commitment to academic freedom and University autonomy, and for the President to make it clear that the administration will no longer compromise these principles or tolerate interference with them.


Nadia Abu El-Haj, Lila Abu-Lughod, Qais Al-Awqati, Paul Anderer, Mark Anderson, Gil Anidjar, Zainab Bahrani, Akeel Bilgrami, Richard Billows, Elizabeth Blackmar, Partha Chatterjee, Lewis Cole, Jonathan Cole, Elaine Combs-Schilling, Susan Crane, Jonathan Crary, Julie Crawford, Hamid Dabashi, Patricia Dailey, Tom DiPrete, Brent Edwards, Eric Foner, Aaron Fox, Katherine Franke, Victoria de Grazia, Page Fortuna, Steven Gregory, William Harris, Andreas Huyssen, Rashid Khalidi, Alice Kessler-Harris, Marilyn Ivy, Brian Larkin, Lydia Liu, Sylvère Lotringer, Mahmood Mamdani, Peter Marcuse, Reinhold Martin, Mark Mazower, Mary McLeod, Brinkley Messick, Rosalind Morris, Keith Moxey, Frances Negron-Muntaner, Mae Ngai, Bob O'Meally, Neni Panourgia, John Pemberton, Richard Peña, Julie Peters, Pablo Piccato, Sheldon Pollock, Elizabeth Povinelli, Wayne Proudfoot, Bruce Robbins, David Rosner, George Saliba, James Schamus, David Scott, Gayatri Chakravorty Spivak, Mark Strand, Paul Strohm, Michael Taussig, Kendall Thomas, Nadia Urbinati, Marc van de Mieroop, Karen van Dyck, Dorothea von Mücke, Gauri Viswanathan, Gwendolyn Wright

My question: Say that a Columbia department sponsored a forum, to which it invited a virulently homophobic, ethnically bigoted political leader — who was also big on using the power of government to suppress dissent — on the quite plausible theory that he's an important leader and it's valuable for Columbia students to learn about such people. Imagine someone like David Duke, perhaps, only ideologically worse and more powerful. And say a University official forcefully but substantively criticized this leader's speech at this forum, while of course allowing the leader to talk.

Do you think these Columbia faculty would or should condemn the University official's behavior? Oh, wait, that's exactly what happened here, except the person wasn't named David Duke.

Or would the faculty only condemn the University official's speech if the speech had the political effect of lending some support to a separate political cause (the war in Iraq, not criticism of Iran's human rights record and foreign policy), which is "a position anathema to many in the University community"? Would they have instead praised the official's speech if it advanced some separate political clause that was beloved by many in the University community? If so, then what does their criticism have to do with "academic freedom," as opposed to politics?

UPDATE: I should give the devil his due; as a commenter suggested, I got carried away in my original title and labeled Ahmadinejad a "dictator" — that was inaccurate, since he is not a solo ruler, though his government does repress domestic dissenters. My apologies for the error; I believe my correction doesn't materially change my analysis.

Related Posts (on one page):

  1. 61 Columbia Professors Dissent
  2. God Forbid that a University President Should Condemn Bigoted, Dangerous, Oppressive Political Leaders

Barry Bonds Indictment:

Awhile back, I posted on whether Barry Bonds would be indicted. Here's what I wrote then:


Since that time, I had become less skeptical about convicting Bonds. Basically, his Sargeant Schultz defense--"I know nothing"--is so implausible that it defies credibility. It just seems absurd to believe that he had no idea what Anderson was giving him.

Also, it is being reported that Anderson was released from prison yesterday where he had been for refusing to testify.


Justice O'Connor Decries "Justice for Sale":

Retired Supreme Court Justice Sandra Day O'Connor is concerned about the influence of interest groups on state judicial elections.

Voters generally don't express much interest in the election of judges. This year, as in years past, voter turnout in elections for judges was very low. But judicial elections, which occur in some form in 39 states, are receiving growing attention from those who seek to influence them. In fact, motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.

Focusing on judicial elections in Pennsylvania, O'Connor recommends replacing partisan judicial elections with merit-based selection or some other non-partisan system, among other "good government"-style reforms.

In the long term, a commitment to judicial independence will only come from robust civics education, starting at a very young age. Today, only a little more than one-third of Americans can name the three branches of government--much less explain the balance of power among them. If we lose appreciation for our government's structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government. With the stakes so high, we cannot wait until the election cycle to educate the citizenry. We must start with civics education in our nation's schools.

I certainly agree that judicial elections are a problem - we elect all of our judges in Ohio - but I am skeptical that modest reforms will solve the underlying problems. Given how much is at stake in many state court decisions, so long as state judges are elected, I fear that the problems Justice O'Connor decries will persist. In my view, the only answer is to move away from direct election of judges.


White House Seeks to Ease Air Traffic:

The W$J reports on measures the Bush Administration has announced or proposed to ease holiday air travel woes. The White House fact sheet on the reforms is here. As a frequent traveler, I sure hope these measures are effective.


Court Rejects Bush CAFE Rules:

Yesterday the U.S. Court of Appeals for the Ninth Circuit sent the Bush Administration's revised automotive fuel economy standards back to the Department of Transportation for reconsideration. Under the Bush Administration, the DoT modestly tightened the fuel economy standards governing light trucks, but also increased the flexibility afforded automakers by basing future light-truck fuel economy standards on vehicle size, rather than an overall fleet average.

In this case, Center for Biological Diversity v. National Highway Traffic Safety Administration, several states and environmental groups challenged the Bush Administration's new federal fuel economy standards for light trucks on several grounds, including the failure to fulfill the requirements of the Energy Policy Conservation Act or comply with the National Environmental Impact Statement. The court, in an opinion by Judge Betty Fletcher, ruled favorably on most of the challenges.

We hold that the Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon missions, failure to set a backstop, failure to close the SUV loophole, and failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating (“GVWR”) class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment. Therefore, we remand to NHTSA to promulgate new standards as expeditiously as possible and to prepare a full Environmental Impact Statement.
Senior Sixth Circuit Judge Eugene Siler (sitting by designation) dissented in part, objecting only to the court's conclusion that the failure to include a "backstop" was arbitrary and capricious. In a one paragraph opinion, Judge Siler said he did not find this aspect of the rule arbitrary because such a backstop was not required by the authorizing statute.

The decision was covered in the New York Times, and prompted commentary on the Warming Law blog (see also here). Time permitting, I'll have more to say about this interesting and important decision as well.


"You Can Do This Job Without Asking a Single Question":

The Legal Times covers Justice Thomas' speech to the Federalist Society's annual lawyers' conference in Washington, D.C. During a brief question and answer session following his speech, Thomas was asked about one of the Court's enduring mysteries: Why do his colleagues ask so many questions at oral argument?

The Washington Post covers the conference here, including last night's remarks by President Bush.

I have matters to attend to In Cleveland this morning, but I hope to make it down in time for Chief Justice Roberts' remarks later tonight.


Three Cheers for Orin!

I'm delighted to report that our coblogger Orin Kerr is the second youngest law professor listed in these lists of most cited law professors by topic. The page doesn't report number of years as a scholar (however measured), but my guess that under that standard Orin would do at least as well, and likely better. Quite a feat!

Other Conspirators on the lists include David Bernstein, Randy Barnett, and Russell Korobkin. My colleague and fellow law blogger Stephen Bainbridge appears as well.


Mark Filip Nominated for Deputy Attorney General Slot: Judge Mark Filip, an outstanding District Court Judge in the Northern District of Illinois, has been nominated by the President to serve as the Deputy Attorney General (the #2 spot at DOJ, in charge of the day-to-day operations of the Department). I have mixed views on this one. Based on what I know of Filip, he would be an excellent Deputy AG. But I think I'd rather have him on the bench for the next 35 years than Deputy AG for only 18 months. If he is confirmed, which he should be, he'll be another top-shelf District Court Judge who served for a short period and resigned (following the recent resignation of Paul Cassell, who served for 5 years).

Thursday, November 15, 2007

Off to Israel:

I will be in Israel for the next week, so blogging may be light during that time. I am going to present a paper on democracy and international human rights law coauthored with Northwestern University lawprof John McGinnis at the Minerva Center conference on international human rights law at Hebrew University. Our paper builds on our earlier Stanford Law Review article, which argued against allowing many types of international law to override the domestic law of democratic states. In the new paper, which I hope to post on SSRN within a few weeks, we apply our argument to the specific case of international human rights law. If you are a VC reader and happen to be at the conference, drop by and say hello.

In addition to attending the conference, I will also get a chance to see a little bit of how Israel has changed in the 25 years since I was last there, and also to visit with various Israeli family members (mostly distant relatives from Russia who emigrated to Israel many years ago), some of whom I have never even met. It should be an interesting time all round.

If time permits and I gather enough interesting observations to make it worthwhile, I may blog about the comparative situation of Russian immigrants in the US, Israel, and Germany (where I was a visiting professor 3 years ago, and also have relatives who migrated there from Russia).


Contemporary Art Auction at Sotheby's Goes Well.--

Sotheby's rebounded from its disappointing Impressionist auction with a smashing auction of more recent works:

LED by a record-breaking Jeff Koons sculpture and a $US46 million Francis Bacon canvas, Sotheby's has roared back from a dismal Impressionist sale to score the highest total in its history at a contemporary and postwar art auction.

Bacon's Second Version of Study for Bullfight No. 1 far exceeded its $US35 million-plus pre-sale estimate, while Koons' stainless steel Hanging Heart (Magenta/Gold) soared to $US23,561,000, including commission, obliterating the artist's $US11.8 million record set a day earlier by his Diamond (Blue) sculpture.

Both Koons works were bought by the Gagosian Gallery, one of Manhattan's premier contemporary art dealers. Koons' 1600-kilogram sculpture, from his "Celebration" series, became the highest-priced work by a living artist sold at auction.

. . .

While prices have risen astronomically in the past year or two, the $US316 million total for Sotheby's exceeded even its most optimistic forecast of $US299 million for the 71 lots on offer. Only six works went unsold.

Tobias Meyer, Sotheby's head of contemporary art, said the results bore out "the high-quality hunger we're experiencing from a completely global community". Fears the weak dollar would deter US buyers, the traditional collectors of contemporary art, proved unfounded, with most buyers being American.

Sotheby's stock jumped nearly 10% in early Thursday trading.

Related Posts (on one page):

  1. Contemporary Art Auction at Sotheby's Goes Well.--
  2. Sotheby's Stock Drops Sharply After Disappointing Auction.--

Which Law Schools Outrank the Undergraduate Institutions With Which They're Affiliated?

Paul Caron has the data, based on the U.S. News rankings.

Related Posts (on one page):

  1. Which Law Schools Rank Below the Undergraduate Institutions with Which They're Affiliated?
  2. Which Law Schools Outrank the Undergraduate Institutions With Which They're Affiliated?

Wednesday, November 14, 2007

"A CBS News Investigation Uncovers A Suicide Rate for Veterans Twice That of Other Americans" -- Or Does It?

The quote is drawn from this CBS News story, with results that CBS labels "stunning." And the story claims that the stunning results indeed remain robust when one controls for sex. Here's the data on the Methodolgy page:

Results for 2004

Overall Rates
Veterans: 17.5 to 21.8 per 100,000
Non-Veterans: 9.4 per 100,000

Male Rates
Veterans: 30.6 to 38.3 per 100,000
Non-Veterans: 18.3 per 100,000

Female Rates
Veterans: 10.0 to 12.5 per 100,000
Non-Veterans: 4.8 per 100,000

Results for 2005

Overall Rates
Veterans: 18.7 to 20.8 per 100,000
Non-Veterans: 8.9 per 100,000

Male Rates
Veterans: 31.5 to 35.3 per 100,000
Non-Veterans: 17.6 per 100,000

Female Rates
Veterans: 11.1 to 12.3 per 100,000
Non-Veterans: 4.5 per 100,000

Yet here's something odd about the data: For the overall rates to correspond to the male and female rates, the veteran pool would have to be 62% to 64% female, and the nonveteran pool would have to be about 66% female. Check it out, for instance, with the lower bounds on the 2005 data: 11.1 x 0.63 (female) + 31.5 x 0.37 (male) = a bit under 18.7 (overall).

Or, if you prefer, consider a veteran pool of 23 million people. You'd need:

  • 14.5 million (23 million x 0.63) women, or 145 hundred-thousands, with 1610 suicides (145 x 11.1) and
  • 8.5 million (23 million x .037) men, or 85 hundred-thousands, with 2680 suicides (85 x 31.5) to get
  • a total of 4290 suicides (a bit under 18.7 per 100,000) for the whole 23 million.

That can't be right. The VA reports that the veteran pool is only 7% female, which means that if the CBS News overall veteran and female veteran numbers are right, then the male veteran numbers would be 19.27 to 21.4 in 2005 and 18.06 to 22.5 in 2004, not far from the male suicide rate of about 17.7 per year (see WISQARS). Of course, we can't tell which of the CBS numbers are right — but it does seem like they can't all be right. Plus of course you can't have a population that's about 51% female but at the same time 62-64% female among veterans and 66% female among nonveterans.

Or am I missing something? Please let me know.

Thanks to Ares (an Aviation Week & Space Technology blog) (linked to InstaPundit) for pointing to this story, though Ares doesn't seem to discuss the specific numbers listed on the CBS Methodology page. Note also that CBS reports, "One age group stood out. Veterans aged 20 through 24, those who have served during the war on terror. They had the highest suicide rate among all veterans, estimated between two and four times higher than civilians the same age. (The suicide rate for non-veterans is 8.3 per 100,000, while the rate for veterans was found to be between 22.9 and 31.9 per 100,000.)" The suicide rate for males age to 20 to 24 is about 20 to 21 per 100,000; what the suicide rate is for male veterans age to 20 to 24 seemingly can't be determined from the CBS numbers, given the apparent flaws I identified above.


"Idiot Legal Arguments": Did you ever need lists of citations to respond to frivolous legal arguments? The ADL's website offers this helpful start. Thanks to commenter "Another Roger" for the link.

Lederman on the OPR Investigation: Over at Balkinization, Marty has a very interesting post on the nature and goals of the Justice Department's internal Office of Professional Responsibility (OPR) investigation into the warrantless surveillance program.

Straw Poll Update:

With over 2,000 votes cast, Fred Thompson has a commanding lead in the VC straw poll. The vote, however, is quite fractured, with Thompson receiving only 23.1% of the vote, followed by Ron Paul, Barack Obama, and Rudy Guiliani at 18.2, 17.3, and 16.8%, respectively. Hillary trails badly at 7.1%, in a virtual tie with Mitt Romney, with John McCain, John Edwards, and Bill Richardson bringing up the rear. As an unscientific poll, this is generally meaningless, though it may say something about the eclectic views of VC readers. And, I'm proud to say, this may be the first on-line poll that Paul supporters haven't spammed (given that this is a libertarian leaning blog, 18.2% for Paul seems reasonable)!

Related Posts (on one page):

  1. Straw Poll Update:
  2. Unscientific Poll of VC Readers:

United States v. Patridge: Judge Easterbrook is at his most amusing when rejecting frivolous arguments, and he shows himself in fine form in today's tax protestor decision. Hat tip: Decision of the Day.

Tuesday, November 13, 2007

Democratic National Committee Chair Howard Dean Announces Official Democratic Theology:

JTA (the Jewish Telegraph Agency) reports:

"This country is not a theocracy," Dean said. "There are fundamental differences between the Republican Party and the Democratic Party. The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."

Now I think I understand the message Dean is trying to convey. Many American Jews (the audience here was the United Jewish Communities' general assembly) are uncomfortable with many traditionalist Christians' expressed views that only Christians can go to heaven. I can understand why they are uncomfortable with those views: They worry that people who think non-Christians are going to Hell will act badly towards non-Christians in this world as well, not a certain connection but a plausible one. Dean wants to tell Jews, and others, that the Democratic Party welcomes non-Christians.

Yet in fact I take it that many Democrats, who are traditionalist Christians, do believe (whether quietly or loudly) in salvation by faith alone. The Democratic Party has, to my knowledge, taken no votes on the subject, and the Party hasn't made this part of any platform.

Nor would it be proper for it to do so: Despite the possible secular implications of this theological question, it remains a quintessentially theological question. I am not wild about the modern American practice of acknowledging God in even an abstract way, precisely because that too is a theological question. But at least that's part of a longstanding tradition, drained by repetition of much theological meaning, and a pretty big tent (though of course not all-encompassing). The question of who gets to heaven is a much more contentious question, and if people thought the Democratic Party actually officially expressed the Party's belief about it, this would lead to the very sorts of denominational conflict that Dean seems to be trying to avoid.

So how then can Dean assure Jews, or anyone else, that "The Democratic Party believes ... that there are no bars to heaven for anybody"? He can assure people that he believes in this; he can surely declare his own theology even if the Democratic Party shouldn't declare one of its own. He can assure people that the Democratic Party stands for civil equality without regard to religion, or make similar secular commitments (assuming that is indeed the official position of the Democratic Party). But he can no more make assurances about the Democratic Party's stand on salvation through works than he can about its stand on transsubstantiation or Papal infallibility.

Thanks to James Taranto (OpinionJournal) for the pointer.


Embarrassing: Decision of the Day discusses the latest reversal of District Judge Manuel Real. The Ninth Circuit's reversing opinion concludes: "Justice suffers when judges act in such an arbitrary fashion. We apologize to the parties and admonish the district judge to exercise more care and patience in the future." For more on the controversial Judge Real, see here.

Obvious Factual Error by ESPN:

I am a big fan of ESPN. As a general rule, I find ESPN's coverage of sports that I follow closely to be better, fairer, and more accurate than the regular media's coverage of the legal and political issues that I'm most familiar with.

Today, however, made a fairly serious factual error. In its article on Cleveland Indians pitcher C.C. Sabbathia, the winner of the Cy Young Award as the best pitcher in the American League, ESPN claimed that "Sabathia is the first black pitcher to win a Cy Young Award since Dwight Gooden of the New York Mets in 1985 — and the first in the AL since Oakland's Vida Blue in 1971." This is clearly false. As any moderately knowledgeable baseball fan should know, black Boston Red Sox pitcher Pedro Martinez won the AL Cy Young Award in 1999 and 2000, and also won the National League Cy Young as a member of the Montreal Expos in 1997. Martinez's 1999 and 2000 campaigns were two of the best seasons by any post-WWII pitcher, and he had the extremely rare distinction of winning the Cy Young vote unanimously in both years.

While racial identity is often debatable, I think that it's pretty obvious that Pedro Martinez is black. Judge for yourself:

Perhaps ESPN meant merely that Sabbathia is the first black American pitcher to win the CY Young since Gooden in '85 (Pedro Martinez is Dominican). But if that's what they meant, they should have said so.

UPDATE: I should perhaps note that the Associated Press was the original source of the offending article, which reprinted. However, ESPN still deserves some criticism for posting the mistaken material without editing it properly.

UPDATE #2: In reading the comments, there seem to be many people who view "black" and "hispanic" as mutually exclusive categories, such that if Pedro Martinez is Hispanic (by virtue of being from the Dominican Republic), he can't also be black. This seems to me a fallacy. People with different ethnicities or cultures can be part of the same racial group, and vice versa. For example, my being a Russian Jew by ethnic background doesn't prevent me from also being white. Census data and numerous news accounts (see, e.g., here , here, and here) reveal that there are some 1 million people in the United States who describe themselves - and are perceived by others - as "black Hispanics" or "black Latinos." Moreover, Latin American nations - including Martinez's native Dominican Republic - have their own racial divisions between darker-skinned blacks, whites, and people who fall into intermediate categories. In the United States, many black Dominican immigrants are among those who identify themselves as "black Hispanics."

Denying the existence of black Hispanics/Latinos is particularly ill-advised in the baseball context, given baseball's history of racial (but not ethnic) segregation. Prior to 1947, black Hispanics were excluded from the major leagues just as black Americans were, while lighter-skinned Hispanics were allowed to play. As black Cuban Hall of Famer Tony Perez put it, "Like black Americans, we black Latinos couldn't play until after [Jackie] Robinson made his debut." Note that Perez describes himself and other black Latin American players as "black Latinos."

Given the number of people who seem to endorse the view that being black and being Hispanic are mutually exclusive, I was perhaps wrong to say that ESPN's error was "obvious." It is, however, an error nonetheless.


Unscientific Poll of VC Readers:

Related Posts (on one page):

  1. Straw Poll Update:
  2. Unscientific Poll of VC Readers:

Subjective Value, Alternatives to Eminent Domain, and the Colorado Military Condemnations:

At Concurring Opinions lawprof Kaimipono Wenger raises some interesting points in response to my post on the US Army's efforts to use eminent domain to take over 400,000 acres of land belonging to Colorado ranchers in order to build a new training ground for troops. In particular, he questions my suggestion that the Pentagon should build its new training facility land already owned by federal government rather than using eminent domain, and my argument that - if eminent domain is used - the ranchers should be compensated for the "subjective value" they place on the property as well as its market value.

I. Using Land Already Owned by the Government as an Alternative to Eminent Domain.

Wenger argues that I am wrong to believe that the new facility should, if possible, be built on land already owned by the government rather than on property taken from unwilling private owners. He notes that, in some instances, using land already owned by the government will be inefficient or excessively costly. However, I did not claim that land already owned by the state should be used in every conceivable scenario. To the contrary, I noted in my original post that using eminent domain might be the way to go if "the [privately owned] Colorado site really is superior to any potential alternative." My argument was merely that using government-owned land or land purchased from willing private sellers should be preferred to eminent domain if other considerations are relatively equal. I would also add that some degree of efficiency could be sacrificed to avoid using eminent domain in cases where the harm to private owners is very great or if the efficiency gains of eminent domain are outweighed by the costs of the takings process itself (including litigation, enforcement, and opportunity costs, among others).

II. Compensation for "Subjective Value."

Wenger also questions my suggestion that the government should compensate the Colorado property owners for their loss of "subjective value" - the value that they attach to their property over and above its market price. Current legal doctrine requires the government to pay only "fair market" value to owners who lose their property to condemnation. This approach leads to the infliction of uncompensated losses on owners and in some cases leads to the use of condemnation in cases where the benefits to the government are actually smaller than the losses suffered by the owners (if subjective value is taken into account).

Wenger does not deny any of the above. But he argues against compensation for subjective value because "[t]hat would be a major change in takings law, and would affect vast numbers of takings, since many property owners attach some subjective value to their property." Wenger seems to assume that I advocate having courts try to ascertain and require compensation for an exact subjective value for each owner in every condemnation.

Trying to calculate subjective value on a case by case basis would indeed probably be unworkable. But there are many other ways to provide at least some compensation for subjective value. For example, courts could require the government to pay a set premium (say 10-15%) above the market price of condemned property, as is done in Britain and Canada. Alternatively, it could establish rules of thumb regulating the size of the required premium based on the type of property being condemned(perhaps more for homes and small businesses than for investment property). Even if we reject all potential judicial efforts to require compensation for subjective value, one could still argue that the legislature should undertake to provide such compensation on its own initiative.

The fact that the right level of compensation for subjective value is difficult to ascertain and that such compensation not required by current American legal doctrine, doesn't mean that we should simply assume that that value is zero and leave it completely uncompensated. As Wenger himself puts it, "[P]roperty owners often attach subjective value to their property, and thus the value to an owner is often greater than market value. That's why the property is still in the hands of _these_ owners, after all."

That said, I am myself skeptical of theories that claim that increasing compensation can solve all the problems created by eminent domain. For my explanation of that skepticism, see this article (pp. 214-18). In many situations (as I explain in the article), the difficulties involved in estimating and compensating subjective value strengthen the case for abjuring the use of eminent domain altogether.

UPDATE: Wenger also raises some other issues, mostly related to my own uncertainty about whether the potential Colorado taking is justified on grounds of its utility to the Army. I can't address them because I lack the needed expertise on the factors involved in choosing locations for military training facilities. As I noted in the original post, I chose not to discuss them precisely because "I lack the expertise to judge."

Wenger also misinterprets my post as implicitly advocating some sort of general rule of takings based on an analysis of equity and efficiency. No such general point was intended, though I can to some extent see how my original post could be misinterpreted in this way.

Related Posts (on one page):

  1. Subjective Value, Alternatives to Eminent Domain, and the Colorado Military Condemnations:
  2. U.S. Army May Use Eminent Domain to Take 418,000 Acres of Colorado Ranchers' Property:

DOJ Reopens Warrantless Surveillance OPR Investigation: This is interesting:
  The Bush administration has apparently changed policy and cleared the way for the Justice Department to restart an investigation into the government's no-warrant electronic surveillance program, a department official told Congress on Tuesday.
  The Justice Department said it will investigate the conduct of lawyers involved in the wiretapping program.
  For months the White House had blocked granting the security clearances necessary for investigators in the Justice Department's Office of Professional Responsibility to determine whether any department attorneys had engaged in unethical behavior.
  . . . .
  H. Marshall Jarrett, head of the Justice office, told members of Congress on Tuesday that the investigation will be reopened. But in his one-paragraph letter Jarrett sidestepped the issue of who in the Bush administration had reversed course.
  UPDATE: This March '07 National Journal report by Murray Waas may shed light on the story (hat tip: TPMMuckraker). Some excerpts:
  Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews. . . .
  Investigators from the Office of Professional Responsibility notified senior aides to Gonzales early last year that the first two people they intended to interview were Jack Goldsmith, who had been an assistant attorney general for the Office of Legal Counsel, and James A. Baker, the counsel for Justice's Office of Intelligence Policy and Review. Both men had raised questions about the propriety and legality of various aspects of the eavesdropping program, which was undertaken after September 11 as an anti-terrorism tool. . . .
  A senior federal law enforcement official said that after OPR launched its inquiry in early 2006, Justice Department political appointees were concerned that the internal ethics office might conclude that Gonzales or other administration officials had sidestepped the law in the authorization and oversight of the program.

Ugliest NY Times Headline Ever!!

The headline in today's lead New York Times story (page 1, column 8 top):

" Studies on Pupils Say Bad Behavior Is Not Dooming."

"Dooming" as an adjective?? In a New York Times headline? Aargh . . .

(And interestingly enough, the headline of the web version of the story was the grammatically less grotesque "Bad Behavior Does Not Doom Pupils, Studies Say").


The Phelpsians' Speech, the Mohammed Cartoons, and the Slippery Slope:

If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the "intentional infliction of emotional distress" tort — would lead to the restriction of much more valuable speech.

Now it's true, as many have argued, that the Phelpsians' speech is legally distinguishable from other speech that should be protected. A judge or jury could certainly hold other speech protected, even though some see it as outrageous and severely emotionally distressing, even if the verdict against the Phelpsians is upheld.

But to me the important question isn't whether the other speech is legally distinguishable from the 1000-feet-from-the-funeral picketing — it's whether the speech will indeed reliably end up being legally distinguished. I worry that it might not be, because judges and juries will be more likely to accept restrictions on other speech once the rationale of the anti-Phelpsian verdict is accepted. Let me briefly explain.

Consider a hypothetical scenario: The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a "hostile educational environment" for various religious groups, or for that matter a rule that bars "conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students." One can of course imagine many other similar hypotheticals; I don't want to suggest that the bottom of this slippery slope would implicate the Mohammed cartoons and nothing else. I just thought that focusing on one concrete hypothetical would be helpful.

So assume Snyder v. Phelps is indeed upheld on appeal — perhaps based on some of the arguments made by commenters who defended the verdict — and thus becomes a binding precedent. Let's compare Snyder to the University of Maryland's action, as the University will defend it:

 The award in Snyder v. Phelps. The hypothetical University of Maryland decision.
1. Impact of government action on defendant$10.9 million in liability, imposed by the government acting as sovereign — likely enough to ruin defendants financially. Modest disciplinary action by a university, which might indirectly but likely at most slightly affect the student's educational and professional prospects.
2. Content of speechOutrageous in the view of the jury, and of all decent people. Outrageous in the view of the University of Maryland administration, and harshly condemned by many leading political and religious actors, of many denominations.
3. Impact of speech on the distressed personMillions of dollars' worth of emotional distress (as found by jury). Serious emotional distress, which interferes with students' focus on their studies, and perhaps their eventual academic performance (as found by University, and as testified to by offended students).
4. Impact of speech exacerbated byFather's grief at his son's death. Muslim students' sense that they and their religion are held in contempt by many classmates and other Americans.
5. Effect of speakers' statusFather can at least feel that the speakers are a tiny and hated minority, and the speakers' views are reviled by his fellow citizens. Muslim students reasonably suspect that the speakers represent a substantial minority of Americans, and the speakers' views are agreed with or even admired by many.
6. Alternative avenues for speechThe Phelpsians might not have been held liable if they had picketed in a different place or time — much more than 1000 feet from the funeral, or when no funeral was in progress (though the emotional distress tort didn't require the jury to draw such a distinction). "The constitutional value of speech that [is] intended to cause severe emotional distress is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn't the fact that we accept time, place and manner restrictions suggest that we don't buy that reasoning?" The students would not have been disciplined if they had expressed their views in a different place or using a different manner — off campus, or not using the Mohammed cartoons. "The constitutional value of speech that [intentionally, knowingly, or recklessly blasphemes against some people's revered religious lieaders] is what, exactly? That valuable ideas may not be susceptible [to] expression any other way? Doesn't the fact that we accept time, place and manner restrictions suggest that we don't buy that reasoning?" And now that we have abandoned as to Phelps the general requirement that "time, place, and manner" restrictions be content-neutral, this argument is even stronger.
7. Targeting towards the distressedThe Phelpsians were generally speaking about America, God, and homosexuality, but in a way likely intended to tie their argument to the private figure plaintiff's son's funeral (again, the emotional distress tort didn't require the jury to rest their verdict on this conclusion). The students were generally speaking about Islam, but in a way that may have been intended to confront their private figure Muslim classmates, and that was in any event reckless about whether their Muslim classmates would see the speech and be distressed by it.
8. Intrusion on privacyWhile the speech was on a public street, it was 1000 feet away from a funeral, which was a private activity. While the speech was at a public place in a public university, the speech was 1000 feet or less away from the dorms, which contain people's private homes.
9. Tendency of speech to cause violent reaction by the distressedIt's possible that people would beat up the Phelpsians. There've been many violent incidents, some deadly, caused by outrage over the speech, though fortunately so far only outside the U.S.
10. Supposedly countervailing private rightsRestricting this speech is fine because "the right to mourn one's dead child in peace would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because ... family and friends of the deceased [are legally] prevented from, or punished for, exercising their natural right to chase the protesters out of sight or hearing of the funeral.)" Restricting this speech is fine because "the right to [not be exposed to deeply blasphemous attacks on one's religion] would seem to be protected by the other part of the First Amendment having to do with free exercise of religion. (Government action being implicated because ... Muslim students [are legally] be prevented from, or punished for, exercising their natural right to chase the [cartoon displayers] out of sight or hearing of [their paths home to their dorm rooms, classrooms, or mosques].)"
11. Protecting individuals who are distressed"Free speech isn't speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech directed at an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?" "Free speech isn't speech without consequences. It seems very clear that some speech may in fact inflict actual damages on an otherwise innocent individual. This is especially true for non-factual opinion speech [directed at, or recklessly waved in front of] an otherwise private person. Why is the innocent target the party that must [bear] responsibility for the damage?"
12. Harm inflicted by speech"[S]peech isn't the issue here except that it was the Phelpsians' weapon of choice in committing battery. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder." "[S]peech isn't the issue here except that it was the [students'] weapon of choice in [effectively slapping their Muslim classmates' faces or spitting in their eyes]. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder [or battery or what have you]."
13. The need for social consensus on minimum standards of decency"Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale." Now that we've established the need to restrict speech that falls beyond the Pale, we need to make clear that this speech — which is just as outrageous and distressing to our Muslim fellow citizens as funeral picketing is to us — is equally beyond the Pale. Otherwise, our failure to equally suppress the Mohammed cartoons will itself harm Muslims, by showing them that we don't take their most deeply felt concerns as seriously as we take our own.
14. TraditionThe intentional infliction of emotional distress tort has been around for decades. Blasphemy laws have been around for centuries, and were in fact used in 1800s America to restrict offensive religious speech.

Given this, do you think that upholding the verdict against the Phelpsians would pose no risk of strengthening the university's hand in restricting the Mohammed cartoons? Don't imagine what would happen if you were asked to make the judgment. Ask what is likely to be done by administrators, judges, and jurors who may well differ from you. Are you confident that a court would indeed distinguish the two scenarios (perhaps under rubrics 7 or 8) — or do you think that, once the Phelpsians' speech is held to be unprotected, the court would defer to the university's decision, on the theory that the two kinds of speech are similar enough even though not identical?

Do you perhaps think that, even if there is such a risk, restricting the Phelpsians' speech is so important that it justifies running that risk? Or do you think that the extra risk is a feature rather than a bug, since universities — and others — should indeed have more power to punish blasphemous, severely distressing criticisms of others' religions, when such criticism is seen by many as being "outrageous"?

As you might gather, I think it's better to protect the Phelpsians' speech, appalling as it is, than to allow its restriction — because by allowing the restriction, we'd be giving a powerful extra tool to those who would restrict a great deal of other speech.


Federalist Society Lawyer's Division Conference:

I hope to see some of our readers — and some of my cobloggers — at the Federalist Society Lawyer's Division Conference in Washington, D.C. (at the Mayflower Hotel) late this week. I'll be there at the Thursday night event and most of the day Friday; I'm sorry that I'll be missing the Saturday events, which also sound great.

From 12 to 1 pm Friday, I'll be on the Free Speech & Election Law panel on Restricting Parental Speech; Judge Michael McConnell, who is one of the nation's two or three top Religion Clauses scholars, will be moderating, and Prof. James Dwyer and Jay Sekulow will be on the panel as well. Co-Conspirators Randy Barnett and Jim Lindgren will be on the Is America Different from Other Major Western Democracies? panel on Friday from 3:15 to 5.

UPDATE: A commenter writes, "I do see that not every single person listed as a panelist is unequivocally of the Federalist persuasion, e.g., a former professor of mine, David Vladek of Georgetown, who is or was Public Citizen's very smart counsel. But it doesn't look like there are many middle-of-the-road, let alone left-leaning types, among them."

Well, try Gordon Wood, Jamie Gorelick, Kent Greenawalt, Deborah Greenfield, Judge Stephen Reinhardt, James Dwyer, Alex Aleinikoff, Akhil Amar, Vicki Jackson, Martha Davis, Shubha Ghosh, Neal Katyal, and Nadine Strossen; possibly also Robert Audi; and David Vladeck, whom the commenter mentioned. Marci Hamilton is conservative on some things, but on the topic that she was invited to discuss she's pretty far from where most conservatives (and likely most libertarians) are. I'm sure there are other liberals and moderates, but these are just the ones I could quickly spot.

Federalist Society conferences are known for having people on both sides of the question (and usually on more than two sides). This is certainly no exception.


Making Nice:

A surprising bit of etymology -- "nice," it turns out, comes from the Latin "nescius," meaning "ignorant." According to the Oxford English Dictionary, "The semantic development of this word from ‘foolish, silly’ to ‘pleasing’ is unparalleled in Latin or in the Romance languages. The precise sense development in English is unclear. N.E.D. (1906) s.v. notes that ‘in many examples from the 16th and 17th cent. it is difficult to say in what particular sense the writer intended it to be taken’." Go figure.

Oh, and two obsolete definitions (2a and 2b in the OED): "Of conduct, behaviour, etc.: characterized by or encouraging wantonness or lasciviousness" and "Of a person: wanton, dissolute, lascivious" (citing, among other things, "nice wenches" in Shakespeare's Measure for Measure), not to be confused with 3f, "Respectable, virtuous, decent." Nice.


"What Part of 'Make No Law' Don't They Understand?"

Classical Values blogs about a Pennsylvania court decision invalidating a marriage performed by a minister of the Universal Life Church, on the grounds that "the friend didn't qualify as a minister under state law because he had no regular congregation or place of worship"; the post condemns this decision, and also a Pennsylvania bill "that would exclude wedding officiants who are ordained 'by mail order or via the Internet or any other electronic means.'" "What part of 'make no law' don't they understand?" is the title of the blog post. (Thanks to InstaPundit for the pointer.)

I realize the title isn't supposed to be deep legal analysis, but lines like that strike me as a sort of smug textualism — hmm, maybe that would be a good name for an interpretive theory, Smug Textualism — that's pretty hard to justify. Even to the extent the argument is deliberately intended as rhetorical hyperbole, it wrongly trades on an assertion of textual clarity, and on the claim that the other side is betraying the clear and unambiguous meaning of the constitutional text. If the text is in fact not at all clear (and I'll explain below why it's not), the argument is a cheap shot at best and misleading at worst. And the rhetorical device is distressingly common, which is why I want to take the time to address this instance of it.

First, note that "make no law" comes from "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Which part of that didn't the post's author understand — Congress? Congress isn't doing anything here.

Of course, perhaps the First Amendment applies to state legislatures and judges via the Fourteenth Amendment, either through the provision that says "nor shall any State deprive any person of life, liberty, or property, without due process of law" (that's what the Court has held) or the provision that says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" (that's what some scholars argue). So which part of that don't you understand — "deprive any person of liberty ... without due process of law," or "abridge the privileges or immunities of citizens of the United States"? The answer is probably both, and rightly so: Both are hard to figure out, especially as they apply to the Religion Clause, at least part of which doesn't seem specifically focused on personal liberty or citizens' privileges or immunities. In any case, there's surely no shame in differences in how to understand the text of either provision.

But let's accept the view that "make no law" applies to states as well as to the federal government, and to judiciaries as well as legislatures. The Court has certainly done so, though note that implicitly relying on precedent rather than text gets us beyond the "What Part of [the clear constitutional text] Don't They Understand?"

There's still the question of exactly how recognizing only certain marriages constitutes "mak[ing a] law respecting an establishment of religion, or prohibiting the free exercise thereof." No-one's religious practice is being prohibited, not even the Universal Life Church's. Nor is such a legal rule clearly a "law respecting an establishment of religion," since no religion is being established as a state religion — not Anglicanism, not Protestanism, not Christianity, not even theism generally.

All this having been said, I actually agree that giving legal preferences to ministers who have a congregation over ministers who don't, or even giving legal preferences to ministers who were ordained in person over those who were ordained by correspondence, is generally a bad idea, and may well be unconstitutional, likely as a violation of the Establishment Clause under Larson v. Valente. One can make sensible precedential arguments for such a judgment of unconstitutionality. One can make sensible prudential arguments. One might even be able to make sensible original meaning or textual arguments, though I'm skeptical about that based on my limited knowledge of the original meaning of the Establishment Clause, and on my sense of the text. (Perhaps the strongest textual argument would be an Equal Protection Clause argument, though even there I think you can't make a decision based on the text alone.)

But one can't make the smug textualist argument that one's critics just don't understand the clear meaning of the constitutional text. There are a few constitutional law matters where a simple appeal to the text is largely dispositive — but only a few (at least among the matters that are likely to be contested), and this surely isn't one of them. And while there are many more for which careful analysis of the text, usually coupled with original meaning, precedent, structure, or other things, can be helpful or even dispositive, the smug "what part of '[textual provision]' don't they understand?" isn't conducive to such careful analysis.


"Court Takes No Action on Gun Case,"

Lyle Denniston (SCOTUSblog) reports. "The next date for possible action ... is likely to be Nov. 26, following a pre-Thanksgiving Conference of the Justices set for Tuesday, Nov. 20." I offer no speculation about what the delay means.


College Films "Best Of" List:

Looking around the Internet for the answer to the Kingsfield question I came across this list of "Bests" about College films (e.g., "Best College Student," "Best Argument in a College Classroom," etc.). Some amusing entries.

I can't believe that the list-maker doesn't give Rodney Dangerfield some props for the best execution of "The Triple Lindy" in "Back To School."


Who Was the Basis for Professor Kingsfield?

Can anyone tell me who was the basis for Professor Kingsfield's character in "The Paper Chase"? Kingsfield, of course, does the famous "hairy hand" case of Hawkins v. McGee in the first day of class. So presumably he is using Fuller's casebook on contracts, which as I understand it, used to begin with remedies. To the best of my knowledge during that age, Fuller's casebook was the only one that began with remedies. Did all Contracts professors at Harvard used Fuller's casebook during that era?

In this vein, a few years ago I read Scott Gerber's marvelous article, "Corbin and Fuller's Cases on Contracts (1942?): The Casebook That Never Was," 72 Fordham Law Review 595 (2003) (I can't find a link to the full article on-line). Gerber discusses the history of the efforts of Corbin and Fuller to co-author a Contracts casebook, a project that eventually foundered on Fuller's insistence of starting the book with remedies instead of formation. Of course, Randy is the modern heir to the Fuller tradition, as he uses the same structure for his casebook today.

So I assume that Kingsfield was using Fuller's casebook, but was Fuller the inspiration for Kingsfield's character?


The kind folks at the Fordham Law Review have provided instructions on getting a copy of Prof. Gerber's article--it is a piece full of great stuff. My favorite part of the correspondence is the widespread teeth-gnashing caused by Erie among commercial law scholars. The full article is now available here:

(click on "Search Articles"; search for "Gerber").


The Jewish Neocon Paleocon Conspiracy:

Jews for Ron Paul 2008. With nifty Hebrew Ron Paul merchandise.

Supreme Court Podcasts: The Federalist Society puts out occasional podcasts featuring expert commentary on Supreme Court cases, and it has put up some interesting ones in the last few weeks on some pending decisions. Worth checking out if you're following the Court's current docket.

Monday, November 12, 2007

Sunstein and the Political Economy of Climate Policy:

No international agreement to control greenhouse gas emissions will have a meaningful effect on future projections of global climate change without the active participation of the United States and China. Yet as University of Chicago law professor Cass Sunstein argues in his paper, “The Complex Climate Change Incentives of China and the United States,” neither nation has much of an incentive to participate in such a regime. Whatever the global benefits of an international emission-control regime, the U.S. and China are unlikely to agree to such an agreement given the existing economic incentives they each face. According to Sunstein, there are two possible solutions. The first would be to alter each nation’s perceived ratio of costs to benefits for emission controls. The second would be for the two nations to recognize a moral obligation to limit greenhouse gas emissions so as to limit likely adverse effects on the most vulnerable parts of the world.

I served as a commenter on Sunstein’s paper at a recent conference on cost-benefit analysis sponsored by the Searle Center at the Northwestern University Law School. Following is a summary of my comments.

As an initial matter, Sunstein’s analysis provides a useful, albeit sobering, dose of realism to climate policy discussions. Among other things, it helps illustrate how economic realities reinforce political resolve against significant emission controls. Yet Sunstein’s analysis also has its limits. In particular, his reliance upon nationwide estimates of costs and benefits is ultimately of limited value in assessing the likelihood of political action in the United States. As public choice analyses have demonstrated, national policy is not always driven by aggregate costs and benefits for the nation as a whole. Rather, various interest groups with concentrated costs or benefits often drive policy decisions at the expense of taxpayers and consumers. As a result, we often see the adoption of national policies for which the nationwide costs clearly exceed the benefits, but which provide concentrated benefits to powerful lobbying groups. Trade policy is rife with such policies, but it is hardly the only context in which this occurs in the United States.

At the same time, interest group pressures can prevent the adoption of economically optimal policy measures. Consider the possibility of a carbon tax. Such a tax would reduce greenhouse gas emissions and increase energy conservation. Assume for the moment that such a tax could be adopted in a revenue neutral manner by replacing existing corporate taxes and excises, and that such a shift in tax policy would not compromise economic growth. Even under such assumptions, it is quite likely that those interest groups most likely to bear the brunt of such a policy change would mobilize against it, and that the built in inertia within the political system would prevent its adoption. I do not know whether China is subject to the same sorts of pressures, but the United States is hardly the only nation in which such public choice problems can be observed.

Despite this caveat, Sunstein is correct that a shift in the perceived costs and benefits of climate mitigation measures will increase the likelihood such measures will be adopted. The Bush Administration’s climate policy initiative, such as it is, embraces this sort of approach insofar as it seeks to encourage the deployment of advanced energy technologies and reduce the carbon intensity of the U.S. economy. More aggressive policies of this sort might seek to provide super-competitive returns for low-emission energy technologies (such as through prizes), reduce regulatory barriers and transaction costs for alternative energy sources, or a shift in tax policy, such as that suggested above. Unfortunately, there is relatively little serious discussion of policy proposals designed to reduce the costs or increase the benefits of emission reducing measures. It is simply assumed that if regulatory controls are adopted, the necessary innovation will come. Unfortunately it does not always work this way. See, for instance, California’s efforts to mandate the sale of electric cars.

Sunstein is also correct that were Americans to become convinced that they are under a moral obligation to prevent or reduce the climate-related risks faced by developing nations, the political process might respond with meaningful policies. Here, however, it is important to note that the recognition of such a moral obligation would not necessarily lead to the embrace of emission control measures, and almost certainly would not result in the adoption of emission controls to the exclusion of other risk-reducing measures. Rather, the likely outcome would be the adoption of a mix of emission reduction and adaptation measures, and it is quite possible that the latter would predominate.

To illustrate this point, consider the following thought experiment. Imagine that anthropogenic contributions to climate change were recognized as nuisance under international law – an action that violates the property rights of harmed nations – and that there was some institutional mechanism to enforce such property interests in a bilateral context. Assume further that the property interest were protected by a property rule – that is, assume that a threatened developing nation, such as, say, Bangladesh, could seek injunctive relief against the United States. Would this mean that Bangladesh would seek the imposition of dramatic greenhouse gas emission controls in the United States? Or would Bangladesh prefer compensation for the violation of its property rights in the form of foreign aid, development assistance, disaster preparedness, and the like. Given the choice of indemnification and adaptive assistance or the imposition of emission controls on the United States that could have negative implications for the global economy, on what basis would we assume that Bangladesh would prefer the latter? When one considers many predicted climate change impacts, including sea-level rise and a shift of disease vectors, investments in adaptation purchase greater risk reduction than even stringent emission limits in the near-to-medium term. Therefore, if we assume that developed nations would behave rationally, they might well prefer adaptation assistance over emission control.

The point of this thought experiment is to illustrate that the acknowledgement of a moral obligation on the part of the United States to reduce the harm of its greenhouse gas emissions on other nations is not sufficient, by itself, to make the case for emission controls. To the contrary, insofar as adaptive measures offer more cost-effective risk reduction, the United States might actually have a moral obligation to support such measures in the near-to-medium term before embracing emission limitations that could have substantial negative economic repercussions around the globe.

These comments notwithstanding, the Sunstein paper makes a useful contribution to the study of the political economy of climate change policy, and I look forward to reading his continuing contributions to the climate policy literature.


U.S. Army May Use Eminent Domain to Take 418,000 Acres of Colorado Ranchers' Property:

A few days ago, the Washington Post had an extremely interesting article about the US Army's efforts to potentially use eminent domain to take some 418,000 acres of property belonging to Colorado ranchers in order to expand a key training area for its troops (hat tip - VC reader Howard Owens, whose relatives are among those who may lose their land):

The U.S. Army wants 418,000 acres of private ranch land to triple the size of its Piñon Canyon Maneuver Site, a training area considered suitable — some would say essential — for preparing American warriors to do battle in the Middle East and Afghanistan. The 1,000-square-mile facility would be 15 times the size of the District.

Several dozen ranchers and members of 15 county commissions that voted to oppose the project find themselves pitted against the Pentagon and Colorado business interests in a struggle over property rights, personal heritage and the contested priorities of national security.....

[T]he government's appeal to patriotism when ranchers could be forced to sell property that has been in their families for generations leaves many landowners cold. They remain skeptical of the claims of national security and frustrated by the lack of answers....

The land under discussion is an arid plateau that occupies a sparsely populated slice of Colorado near the New Mexico border.....

Brian A. Binn, president of the military affairs committee of the Colorado Springs Chamber of Commerce, said the benefits to the state economy and national defense are clear. If the ranchers triumph and the training site is not created, he added, other states would be all too willing to accept the troops and the business.

"We have to look sometimes at what's better for the national defense, the greater good," Binn said. "It is a national security issue. The men and women of our armed services deserve nothing less."

Bob Hill, a rancher forced to sell his land to the Army 25 years ago, said caustically, "I find the city people are really patriotic with our property."

As a legal matter, there is no doubt that this potential use of eminent domain is constitutional. Even those - like myself - who favor a narrow interpretation of the Public Use Clause of the Fifth Amendment agree that the government may condemn property in a case where it intends to retain ownership of the land itself rather than transfer it to a private party.

However, the fact that the Army's plan is constitutional doesn't necessarily mean that it is equitable or efficient. Undoubtedly, military training is an urgent national priority, particularly in a time of war. Thus, if the ranchers' property is the best available site for an expanded training facility and the land can't be obtained through voluntary transactions, there would be some justification for using eminent domain.

Nonetheless, there remains the question of whether a facility of comparable quality could be built without resorting to condemnation. The U.S. government already owns hundreds of millions of acres of desert property in the Western states, much of which is not being used. Perhaps the Pentagon could build a new training facility on land the federal government already owns; if so, that would be far preferable to displacing private property owners.

It is of course possible that the Colorado site really is superior to any potential alternative. I lack the expertise to judge that issue. If so, there is a strong case for paying the owners compensation above the market value of the land. According to the Supreme Court, the Constitution's requirement of "just compensation" only mandates that the government pay the owners of condemned property "fair market value." However, market value compensation often fails to fully replace the owners' losses. If they valued the land at the market price or less, they presumably would have sold it already; their decision to hold onto it is an implicit signal that they place a "subjective value" on the property above its market price.

In this case, subjective value concerns are particularly serious. Many of the owners' families have lived on the land for generations, and would lose most of their livelihood if forced to move. Even if the Court is right to hold that fair market value compensation is all the Constitution requires, this is one case where the feds should pay more.

Related Posts (on one page):

  1. Subjective Value, Alternatives to Eminent Domain, and the Colorado Military Condemnations:
  2. U.S. Army May Use Eminent Domain to Take 418,000 Acres of Colorado Ranchers' Property:

Details of the Sexual Harrassment Accusations Against Judge Samuel B. Kent:

The Houston Chronicle has a new story revealing some of the details of the sexual harassment accusations against District Judge Samuel B. Kent (hat tip: several VC readers who pointed out the story to me).

At this point, it is difficult to tell whether the accuser's account is accurate or not. Undoubtedly, Kent has his own version of what happened. Nonetheless, her accusations are quite serious, and strengthen the case for a congressional investigation to determine whether impeachment is warranted.


District Court Orders White House To Preserve E-Mail: News update here, although it's hard to know what to make of it without reading the opinion. An earlier and related story is here.

A Puzzle, from My Friend Warren Usui:

Fill in the blank in the following list:

1. Vermont, Connecticut, New Hampshire

2. Pennsylvania, Delaware, New Jersey

3. Indiana, Ohio, Kentucky

4. Arkansas, Mississippi, Tennessee

5. Iowa, Missouri, Nebraska

6. California, Colorado, Arizona

7. Washington, ______________, Oregon


Evolving Christian attitudes towards personal and national self-defense

Veterans Day seemed like an especially apt day to publish this Working Paper, for which comments are gratefully solicited. Summary:

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence.

While the article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War One turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War Two and the early Cold War ended the pacifist interlude for all but a few radical pacifists.

Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti-Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years.

Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.


Another Presidential Selection Quiz:

Everyone seemed to enjoy the last Presidential Selector Quiz that I linked, so here's another one from that a reader emailed to me. The good news is that this time my results actually matched with who I actually support and there are no fictional candidates.

The first page is a bit confusing, where they label the issues. So, for instance, the "Gun Control" category actually includes "gun control" and "gun rights" and "Energy and the Environment" asks follow up questions about your position on global warming policies.

Related Posts (on one page):

  1. Another Presidential Selection Quiz:
  2. Presidential Candidate Selector:

Is Dick Cheney Unconstitutional?

Glenn Reynolds examines the question here.


Don't Buy Stuff You Cannot Afford:

I had never seen this Saturday Night Live sketch before--a revolutionary approach to dealing with the problem of household debt and credit cards, "Don't Buy Stuff You Cannot Afford."


From a Comment Thread:

A: "What? You expected the majority of the complaints [about the Super Bowl Janet Jackson 'wardrobe malfunction'] to come from 12 year olds? Seriously?"

B: "No. I expected most of them to have seen a nipple before. Most had and therefore didn't think it was a big deal."

My thought: The great majority had, but many had forgotten.


"Many Young Berliners Ignorant of Totalitarian Past":

MedienKritik reports on a poll of 15-17 year old students in Berlin:

* "The DDR (GDR - East Germany) was not a dictatorship -- the people just had to conform like anywhere else." 24.6% of all students agreed with this statement .... 54.1% of all students rejected the statement .... The remainder (21.3% total ...) selected "neutral".

* "The Stasi (Ministry for State Security of the DDR) was an intelligence agency, just like any other state would have." 31.1% of all students agreed with this statement .... 49.6% of all students rejected the statement .... The remainder (19.3% of all students ...) selected "neutral"....

* "The command economy in the DDR was not better or worse than the market economy in West Germany, just different." 20.1% of all students agreed with this statement .... 43.9% rejected this statement .... The remainder (36% of all students ...) selected "neutral"....

The results are generally more pro-Communist (sometimes much more so) among East Berliners. More details at the link.


More on Higazy:

I agree with Orin that there is much to comment in Rob Loblaw's post, but I disagree with the bottom line. If Higazy sought to have his allegations kept secret, I would agree that keeping such information under seal would not be particularly sinister or problematic. Yet that does not appear to be what happened in this case. To the contrary, as noted here, Higazy's lawyer opposed keeping the allegations under seal.

As I noted in my prior post on the matter, I agree that there are legitimate reasons for the government to file information under seal, and there are even legitimate reasons for the government to keep its interrogation protocols under wraps. In this case, however, what is at issue is not the government's standard interrogation methods or guidelines, but specific allegations of government misconduct in a specific interrogation. Such allegations, and the public's interest in allegations of government malfeasance, would seem to outweigh the government's interest in keeping its interrogation methods secret, particularly since such secrecy could be a means of preventing the disclosure of government malfeasance.


Thanks to Our Nation's Veterans,

and our allies', too. War so rarely comes to our own shores -- even counting the 9/11 attacks -- that it's easy for us not to fully grasp how much we owe them.


The Early Career of Ruth Bader Ginsburg: Legal Times has this very interesting story, via Howard.

Sunday, November 11, 2007

Commentary on Higazy: Over at Decision of the Day, "Robert Loblaw" offers some thoughts on the Higazy case. I tend to agree with Loblaw, at least based on what we know so far.

Bluefin Blues:

Japan consumes the lion's share of Bluefin tuna, but it has plenty of company in its love of this flavorful fish. The growing popularity of sushi, and the use of sushi-grade tuna in other dishes, is putting tremendous pressure on wild stocks of the prized fish.

Japan -- after years of overfishing a species that is as much sacrament as food -- is feeling the pinch more than any other country.

As of this year and for the next four years, the country's annual fishing quota has been slashed in half for southern bluefin tuna, found in the warm waters of the Southern Hemisphere. And its quota for Atlantic bluefin has been cut by almost a quarter. . . .

Wholesale tuna prices, up about 20 percent in the past year, are so high that Japanese restaurant owners say they cannot pass on the full cost to customers. . . .

Across Japan, quotas are squeezing the supply of sashimi tuna, and soaring prices are reducing demand. In the first quarter of this year, imports fell 24 percent compared with the previous year, according to one recent industry report. Another report says that for all of 2006, household consumption of sashimi tuna fell 20 percent.

Yet as the Japanese eat less sashimi-grade tuna, Americans, Europeans and Chinese are eating more. In the United States, the second-largest market for fresh tuna, imports have continued to rise this year. That, in turn, is driving up demand and prices. It is also putting further pressure on tuna stocks that have been overfished for decades. . . .

Since 1950, the global catch has risen more than tenfold, to more than 4 million tons in 2002, '03 and '04. A report this year by the World Wildlife Fund said that the tuna fishing fleet is now far larger -- in some cases 70 percent larger -- than is needed for a sustainable catch.

The consequences have been severe, especially for bluefin tuna. The total population of southern bluefin has been reduced to about 8 percent of levels before industrial fishing took off in the 1950s, according to a U.N. report.

[Sidenote: I'm still puzzling over the idea of "a Catherine Zeta-Jones type of tuna," a bluefin that, as described by a Japanese vendor, has the desired "beauty and balanced plumpness."]


The Kids Are Alright:

From the Washington Post:

Researchers at Ohio State University garnered little attention in February when they found that youngsters who lose their virginity earlier than their peers are more likely to become juvenile delinquents. So obvious and well established was the contribution of early sex to later delinquency that the idea was already part of the required curriculum for federal "abstinence only" programs.

There was just one problem: It is probably not true. Other things being equal, a more probing study has found, youngsters who have consensual sex in their early-teen or even preteen years are, if anything, less likely to engage in delinquent behavior later on.


Sunday Song Lyric: Pink Floyd's "Wish You Were Here" is simply one of my favorite songs of all time. It's timeless. A Floyd song even non-Floyd fans can love. It only ranked #316 in Rolling Stone's list of greatest songs (which is probably reason #423 why such lists are a waste of time), but it's worth posting as a Sunday Song Lyric anyhow.
So, so you think you can tell
Heaven from Hell?
Blue skies from pain?
Can you tell a green field from a cold steel rail?
A smile from a veil?
Do you think you can tell?
And did they get you to trade your heroes for ghosts?
Hot ashes for trees?
Hot air for a cool breeze?
Cold comfort for change?
And did you exchange a walk on part in the war for a lead role in a cage?
How I wish, how I wish you were here.
We're just two lost souls swimming in a fish bowl, year after year,
Running over the same old ground.
What have you found?
The same old fears.
Wish you were here.
Here's a live version of the song from the band's reunion.

As a side note, I've always had something against Pink Floyd covers (and don't get me started on Pink Floyd cover bands). Yet I saw Velvet Revolver cover this song in concert a few years back and was blown away. Here's a video of them performing the song at another show.


Symon v. Besh:

The finale of "The Next Iron Chef" pits Cleveland culinary star Michael Symon against New Orleans' John Besh. I'm pulling for Symon, of course. Here's a profile of him from today's Plain Dealer.



Congratulations to Michael Symon, the new Iron Chef. Allez Cuisine!

CPD coverage is here, and here's Symon's new blog, "Symon Says."


DC Court of Appeals Decision on Pretextual Takings After Kelo:

The District of Columbia Court of Appeals (DC's highest Court) has issued its opinion in Franco v. National Capital Revitalization Corp., an important decision on the status of "pretextual takings" claims in the wake of Kelo v. City of New London (hat tip: PropertyProf Blog). The DC Court of Appeals ruled that a property owner could challenge the condemnation of his property as "pretextual," even though the condemnation was part of a plan to alleviate "blight" in an area formally designated as blighted by the DC government. The case raises two important post-Kelo issues:

1. Can a property owner can challenge a taking as "pretextual" even if it is part of a redevelopment plan? The DC Court of Appeals implicitly held that the answer is "yes."

2. What kind of evidence is needed to prove that a taking is pretextual after Kelo?

I think that the court decided the first issue correctly, though its reasoning is flawed. The Court's answer to the second question is maddeningly vague.

I. Pretextual Takings Within a Redevelopment Plan.

In Kelo, the Supreme Court decided that the Public Use Clause of the Fifth Amendment does not forbid condemnations that transfer property to new private owners in order to promote "economic development," and that decisions to condemn for such purposes should receive virtually absolute deference from courts so long as they are part of an "integrated development plan" (Kelo is unclear about what the constitutional rules are for economic development takings adopted without a plan). Courts were forbidden to "second-guess" the quality of the plan in question, even if that plan were seriously flawed (as was the one in Kelo itself). For more detailed analysis, see Part III of my article on Kelo. The constitutionality of "blight condemnations was upheld by the Court in its 1954 decision in Berman v. Parker, which upheld the forcible displacement of some 3000 mostly poor and African-American Washington DC residents in order to promote "urban renewal" in the area. Kelo's very broad deference to the planning process is extremely important because nearly all blight and economic development takings are enacted as part of a plan of some kind.

At the same time, however, Kelo reiterated the longstanding principle that the Public Use Clause forbids "pretextual" takings - takings where the ostensible "public use" was just a pretext for an effort to benefit a private party. This raises the question of whether property owners can raise pretext challenges to condemnations adopted as part of a redevelopment plan.

In Franco, the DC Court of Appeals implicitly answers this question in the affirmative. Unfortunately, however, the persuasiveness of its reasoning is weakened by the court's failure to consider the pro-planning reasoning in Kelo itself, or even to recognize that Kelo seems to require far greater deference to condemnations undertaken as part of a plan than to those enacted without one.

The court also fails to discuss Didden v. Village of Port Chester, a recent Second Circuit case that decided the same issue the other way. Along with six other property law professors, I filed an amicus brief urging the Supreme Court to grant cert in Didden and overrule it; unfortunately, however, we were unsuccessful. In my view, the DC Court of Appeals reached the right decision on this issue. But their discussion of it is not nearly as thorough as it should be.

II. Proving Pretext after Kelo.

Assuming that a property owner can raise a pretext challenge, what kind of evidence does he need to win? As I see it, there are three types of pretext claims that need to be considered:

1. The owner shows that the government intends to use the property for a completely different purpose than it claims (e.g. - it claims that the land is being taking in order to build a highway, but actually transfers it to a private developer).

2. The government is telling the truth about what will happen with the property after it is taken (e.g. - it really will be given to Developer X, just as they say). But the owners proves that the government is lying about its motives for deciding to go forward with the condemnation (e.g. - it claims that the general public will benefit from the taking, but in actuality doesn't really believe this and is only condemning the property in order to benefit a private interest).

3. Government officials genuinely believe that the public will benefit (perhaps they are engaging in self-deception), but in reality the evidence proves that any such benefits are unlikely and most of the benefits of the taking will be captured by the new private owner of the condemned land.

Virtually everyone agrees that Scenario 1 would be an unconstitutional pretextual taking; but that scenario is not what's at issue in Franco. The hard question is what to do about Scenarios 2 and 3. In my view, Kelo probably precludes Scenario 3 claims. Scenario 2 claims are probably permitted, but it's very hard to tell how much evidence you need to prove that the government's motives were illegitimate.

As recounted in the DC Court of Appeals opinion, Franco's evidence against the DC authorities in fact amounts to some combination of these two possibilities. The Court ultimately decided that his evidence was good enough to enable his case to go to trial in the trial court. Unfortunately, however, it gives the trial court very little guidance as to how to decide whether or not the evidence is enough to prove that the taking was pretextual:

We conclude that a reviewing court must focus primarily on benefits the public hopes to realize from the proposed taking.13 If the property is being transferred to another private party, and the benefits to the public are only “incidental” or “pretextual,” a “pretext” defense may well succeed. On the other hand, if the record discloses (in the words of the trial court)that the taking will serve “an overriding public purpose” and that the proposed development “will provide substantial benefits to the public,” the courts must defer to the judgment of the legislature. Harder cases will lie between these extremes.

This standard is extremely vague, and fails to distinguish between Scenarios 2 and 3. I suspect that whoever loses in the trial court will appeal the case, and the Court of Appeals will have to explain its approach more fully in the future.