Saturday, November 24, 2007

Eco-Friendly Bird Killer?

Emory University's Math & Science Center is a LEED-certified, environmentally sound building. Yet portions of the $40 million building are now draped with black mesh netting because the building is allegedly responsible for killing birds — as many as two per day — that fly into the glass.

UPDATE: See also Jim Chen's post here.


Michigan AG on Second Amendment Case:

In yesterday's WSJ, Michigan Attorney General Mike Cox argues the Supreme Court should embrace an individual rights interpretation of the Second Amendment. The significance of this article is less its contents -- the article summarizes some of the standard constitutional arguments in favor of the individual rights view -- than its author: Michigan's chief law enforcement officer. the article also addresses some of the practical arguments in for rejecting the District of Columbia's position.

Lastly, consider the empirical arguments. The three D.C. ordinances at issue are of the broadest possible nature. According to the statute, a person is not legally able to own a handgun in D.C. at all and may have a long-gun--even in one's home--only if it is kept unloaded and disassembled (or bound with a trigger lock). The statute was passed in 1976. What have been the results?

Illegal guns continue to be widely available in the district; criminals have easy access to guns while law-abiding citizens do not. Cathy L. Lanier, Acting Chief of Police, Metropolitan Police Department, was quoted as follows: "Last year [2006], more than 2,600 illegal firearms were recovered in D.C., a 13% increase over 2005." Crime rose significantly after the gun ban went into effect. In the five years before the 1976 ban, the murder rate fell to 27 from 37 per 100,000. In the five years after it went into effect, the murder rate rose to 35. In fact, while murder rates have varied over time, during the 30 years since the ban, the murder rate has only once fallen below what it was in 1976.

This comports with my own personal experience. In almost 14 years as prosecutor and as head of the Homicide Unit of the Wayne County (Detroit) Prosecutor's Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon. Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence (or lack of same), and failures in the supervision of parolees and probationers.

Not only does history demonstrate that the Second Amendment is an individual right, but experience demonstrates that the broad ban on gun ownership in the District of Columbia has led to precisely the opposite effect from what was intended. For legal and historical reasons, and for the safety of the residents of our nation's capital, the Supreme Court should affirm an individual right to keep and bear arms.


Justice, Saudi Style:

In Saudi Arabia, a 19-year-old woman is sentenced to 200 lashes. Her crime? She had been sitting alone in a car with a man who was not her husband when the two were abducted and raped by a gang of seven men. Had she not been raped, her "crime" would not have been prosecuted. Were that not obscene enough, now it seems her attorney will lose his law license for handling her defense too aggressively.


Friday, November 23, 2007

Paul Cassell Reflects: The Deseret Morning News has a fascinating profile of Paul Cassell, who recently resigned his district court judgeship to return to academia. Just a taste:
  Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that.
  "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation."
  Thanks to Doug Berman for the link.

  Incidentally, Cassell is one of five federal judges with superlative academic credentials who recently resigned or announced plans to resign either after only a short period of service or when still relatively young. I believe Cassell is now 47, and he resigned in 2007 after 5 and 1/2 years of service. The other four are Mark Filip (41, served for 3 years, now a nominee to become Deputy AG), David Levi (resigned in 2006 at the age of 55 after 17 years on the bench to become Dean of Duke), Michael Luttig (resigned in 2006 at 51 after 15 years on the bench to become GC of Boeing), and Michael Chertoff (resigned in 2005 after 2 years at age 53 to become Secretary of Homeland Security).

D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?

Prof. Nelson Lund, of George Mason, is one of the leading conservative legal scholars writing in support of a meaningful Second Amendment. Unlike, for example, most of the VC writers, Lund's legal philosophy has hardly any libertarian influence. (For example, Lund argues that Pierce v. Society of Sisters was wrongly decided, as are all its progeny, the "substantive due process" cases.) Lund's latest article on the Second Amendment, will appear soon in a symposium issue of George Mason University Civil Rights Law Journal. Here's part of the abstract of the thought-provoking article, which addresses an argument that, as the cert. petitions have already shown, will be a key part of the Fenty administration's attempt to preserve the D.C. handgun ban:

One way to attack the D.C. Circuit [Parker] decision is to argue that the Second Amendment protects the private possession of weapons only to the extent necessary to preserve in civilian hands a stock of weapons suitable for use while serving in the militia. Rifles and shotguns would be the most obviously useful weapons for militiamen to bring with them from home, and the D.C. statute permits civilians to possess rifles and shotguns, along with the ammunition these weapons require. Why does this not satisfy the Second Amendment?

This superficially plausible defense of the District's statute was not adequately refuted in Judge Silberman's opinion for the D.C. Circuit. This article demonstrates, largely but not exclusively on the basis of a careful linguistic analysis of the Second Amendment, that such a defense of the District's statute is untenable.


Ron Paul, Racism, and Federalism:

As co-blogger David Bernstein discusses here, Ron Paul's statement on racism claims that "it is the federal government that most divides us by race, class, religion, and gender." As I have argued in great detail here, the federal government's record on racism is not as good and that of the states not as bad as is often supposed. For much of American history, the federal government facilitated rather than combatted slavery and (later) Jim Crow. For example by imposing southern-style segregation in the District of Columbia, the one part of the US where the federal government enjoyed virtually unlimited lawmaking authority even before the New Deal. Prior to the modern civil rights movement, blacks probably benefitted from federalism in so far as it permitted northern and western states to pursue more liberal racial policies than Congress would likely have imposed had it enjoyed the same degree of control nationwide as it did in DC. As I have discussed in various articles (e.g. - here and here), federalism enabled many southern blacks to "vote with their feet" and move to relatively less hostile jurisdictions.

Nevertheless, Paul's claim that the feds are principally responsible for racism and racial division cannot possibly be sustained. It was, after all, state governments that took the lead in defending slavery, segregation, and other forms of discrimination against blacks and (in the Western states) Asian-Americans.

As David notes, Paul's statement on racism mostly targets modern affirmative action and racial preferences, while ignoring traditional racism against minorities. Even these policies, however, are much more common at the state and local than the federal level. Most government-created affirmative action preferences involve state and local government contracting or admissions policies at state universities. I don't agree with Paul's implication that these programs are as bad or worse than traditional Jim Crow-style discrimination against minority groups. But to the extent that they do cause racial division and other harms, state governments are primarily to blame.

The inescapable truth here is that combatting government-imposed racial discrimination often requires federal intrusion on the autonomy of state and local governments. Recognizing this is in no way inconsistent with libertarianism, a political philosophy in which the allocation of power between different levels of government is a purely instrumental value. It does, however, seem to be a blind spot for Ron Paul and his campaign.

UPDATE: It is only fair to note that, to my knowledge, Ron Paul is the sole candidate in either party to denounce the harm done to inner city African-Americans by the War on Drugs, the federal government policy that has probably done more damage to minority communities than any other over the last several decades. I don't think that the War on Drugs is inherently racist, but it certainly has been prosecuted with almost criminal indifference to the welfare of low-income minorities.


Rachel Paulose's Departure from her position as U.S. Attorney for the District of Minnesota has been getting a lot of press recently, including an editorial in Thursday's New York Times. I don't know exactly what to make of the situation: I've never met Paulose, and I don't have any close contacts (at least any that come to mind) in that particular office. If I had to guess, though, I would imagine that this commentary from the Minnesota Lawyer Blog is probably about right. Thanks to Legal Blog Watch for the link.

  UPDATE: Over at Concurring Opinions, my friend and colleague Dan Solove adds:
As one who has been very critical of the Bush Administration and of how it has politicized the DOJ, I ordinarily would not be very sympathetic to Rachel.

But I know Rachel Paulose. We were in the same class at Yale Law School. It is hard to believe some of the media accounts of her, as she always struck me as incredibly kind and nice. Rachel and I are at different ends of the political spectrum, and I would not have been friendly with somebody who was a hack, who was strident in her ideology, who was obtrusive about her religious beliefs. But I found Rachel to be quite likable, and I had many good conversations with her in law school. I never found her to be aloof, pushy, fiercely ideological, nasty, or many of the other characteristics currently being attributed to her. In my experience, she was always thoughtful, respectful, and friendly. Therefore, I doubt the accounts of her I've been reading in the media -- they certainly don't reflect the person I knew when I was in law school.

Pro Forma Senate Sessions and The Power to Make Recess Appointments: Marty Lederman offers a very interesting post on this timely topic over at Balkinization.

Thursday, November 22, 2007

BBC Revision of the "Handguns Are Used in Most US Assaults and Robberies" Claim:

The BBC story I discussed yesterday has been revised.

The "Handguns are used in most US assaults and robberies" caption has been changed to "The debate over handguns is politically charged in the US," and the "Handguns are used in two-thirds of robberies and assaults and in half of murders in the US, according to statistics from the Federal Bureau of Investigations" line has been replaced with "Firearms, including handguns, are used in two-thirds of murders and about 42.2% of robberies committed in the US, according to statistics from the Federal Bureau of Investigations." Both of the new statements are correct, though as I noted earlier, the FBI robbery statistics are probably less reliable than the Department of Justice survey-based statistics, which estimate handgun use at 26.3%.

In any case, I'm pleased that the BBC revised the story, whether based on my e-mail to them or on others'. (Note that the "Last Updated: Tuesday, 20 November 2007, 22:21 GMT" doesn't reflect this change; compare the cached version, which contains the errors but has the same timestamp.) If anyone can point me to any BBC page that specifically notes the correction, I'll be happy to note that as well.

Related Posts (on one page):

  1. BBC Revision of the "Handguns Are Used in Most US Assaults and Robberies" Claim:
  2. "[D.C. Officials] Argue Handguns Are Involved in Most Violent Crime":
  3. "Handguns Are Used in Most US Assaults and Robberies,"

Happy Thanksgiving:

Paul Caron has compiled Thanksgiving Proclamations through the years.


The 1621 Thanksgiving Remembered.--

On Thanksgiving, I thought I would link to two posts from earlier years on the 1621 Thanksgiving and the Pilgrims' attitudes toward food in the New World.

In 2004, I posted an account of the Massachusetts Pilgrims’ first Thanksgiving in 1621.

We set the last spring some twenty acres of Indian corn, and sowed some six acres of barley and peas, and according to the manner of the Indians, we manured our ground with herrings or rather shads, which we have in great abundance, and take with great ease at our doors. Our corn [i.e., wheat] did prove well, and God be praised, we had a good increase of Indian corn, and our barley indifferent good, but our peas not worth the gathering, for we feared they were too late sown, they came up very well, and blossomed, but the sun parched them in the blossom.

Our harvest being gotten in, our governor sent four men on fowling, that so we might after have a special manner rejoice together after we had gathered the fruit of our labors; they four in one day killed as much fowl, as with a little help beside, served the company almost a week, at which time amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some ninety men, whom for three days we entertained and feasted, and they went out and killed five deer, which they brought to the plantation and bestowed on our governor, and upon the captain, and others. And although it be not always so plentiful as it was at this time with us, yet by the goodness of God, we are so far from want that we often wish you partakers of our plenty.

Last Thanksgiving (2006), I pointed out the gross misinformation in a 2005 New York Times op-ed on our anachronistic views of the food served at the first Thanksgiving.

Professor James McWilliams in the 2005 New York Times:

They Held Their Noses, and Ate

No contemporary American holiday is as deeply steeped in culinary tradition as Thanksgiving. Not only is the day centered on a feast, but it's also a feast with a narrowly proscribed list of foods - usually some combination of turkey, corn, cranberries, squash and pumpkin pie. Decorated with these dishes, the Thanksgiving table has become a secular altar upon which we worship America's pioneering character, a place to show reverence for the rugged Pilgrims who came to Plymouth in peace, sat with the Indians as equals and indulged in the New World's cornucopia with gusto.

But you might call this comfort food for a comfort myth.

The native American food that the Pilgrims supposedly enjoyed would have offended the palate of any self-respecting English colonist — the colonial minister Charles Woodmason called it "exceedingly filthy and most execrable." Our comfort food, in short, was the bane of the settlers' culinary existence.

But the colonial minister Charles Woodmason quoted by McWilliams was not a Pilgrim writing in the 1620s. Woodmason was a famously prejudiced Anglican missionary to backcountry Carolina, describing the habits of Irish and Scots-Irish settlers in his diary during 1766-68, over 140 years after the Pilgrim’s Thanksgiving. Woodmason was not complaining about the food the Pilgrims ate, but rather the very different foods favored in rural Carolina.

For much more detail on both issues, you can read the original posts.

My favorite Thanksgiving food is a sage sausage dressing that my mother and sisters make. And then there's the wine . . . .


Wednesday, November 21, 2007

Beyond Infinity:

So we've seen that there are as many squares as there are positive integers, and as many rational numbers as there are positive integers. That's because infinity is infinity, right? All infinite sets are infinite and therefore equal in size?

The answer, it turns out, is no. Georg Cantor, in fact, provided a simple and elegant proof that there are more real numbers even just between 0 and 1 (not counting 1) than there are integers, which is to say that there's no one-to-one mapping of real numbers and integers, though there is of rational numbers and integers.

Here's the proof. Let's assume that there is such a mapping, so that, for instance,

1 maps to 0.62584146011243...
2 maps to 0.43256984161433...
3 maps to 0.46543618463411...
4 maps to 0.68905671314112...
5 maps to 0.23348521001518...

Then let's construct a number based on the digits along the diagonal, with its first digit after the decimal point being 1 more than the first digit of the first number, the second digit being 1 more than the second digit of the second number, and so on (those are the underlined digits); but if some digit in the original mapping is an 8 or 9, we change it to a 0 instead of adding 1. The diagonal number for the mapping above, for instance, is 0.63508..., and the constructed number is 0.74610....

This constructed number is not within the mapping; it can't correspond to any integer n, because the nth digit of the constructed number is guaranteed to differ from the nth digit of the nth number in the mapping.

What's more, this is true of any mapping you can come up with. No matter how you try to map the real numbers between 0 and 1 to the positive integers, there will always be a real number between 0 and 1 that one can construct using Cantor's algorithm that will be guaranteed to be outside the mapping. Therefore, no such mapping can exist: It's not possible to map the real numbers between 0 and 1 to the positive integers. Cool, no? All infinite numbers are infinite, but some are more infinite than others.


"[D.C. Officials] Argue Handguns Are Involved in Most Violent Crime":

So says the L.A. Times. But the National Crime Victimization Survey for 2005 (PDF page 81) reports that handguns are used in fewer than 8% of all crimes of violence. This doesn't include homicide, but homicides are fewer than 0.5% of all crimes of violence, so even if one includes homicides the answer would be about 8%.

Here's my guess about what happened: The petition does say that "Handguns are the weapon most likely to be used in a street crime," a statistic that the NCVS supports. According to NCVS, handguns account for a plurality (roughly 1/3) of weapons used in the about 25% of violent crimes that the victims believed were committed with weapons (as opposed to hands and fists), which is more than any other class of weapons. The petition's statement is thus accurate, though not terribly helpful and potentially misleading. But this then got transposed into the off-by-a-factor-of-6 L.A. Times statement that "[D.C. officials] argue handguns are involved in most violent crime."

Now I should stress that handguns are indeed involved in many crimes, and the majority of homicides. I oppose handgun bans because I think they do more harm than good, but I certainly don't want to pooh-pooh the harm done by criminals with handguns. But this sort of story helps show how skeptical one should be of media reporting about statistics (and likely about other things as well).

Thanks to commenter Tom Hynes for pointing this out.


Are There More Positive Rational Numbers than Positive Integers?

I asked that near the end of my previous post; and the answer, counterintuitively, is that these two sets are also equally big. Remember that the standard definition we're working with is that two sets are equally big if there's a way of mapping each element of the first to precisely one element of the second. So here's the mapping, with the unbracketed item in each cell being a rational number (e.g., 2/3), and the bracketed item being the positive integer to which the mapping is being done. (To make it simple, I'll ignore the double counting that happens when some fractions equal some others that came before, for instance when we get to 2/2 and 3/3, which equal 1/1; to make it more precise, we can just skip over them.

1/1 [1]2/1 [2]3/1 [4]4/1 [7]5/1 [11]6/1 [16] ...
1/2 [3]2/2 [5]3/2 [8]4/2 [12]5/2 [17] ...
1/3 [6]2/3 [9]3/3 [13]4/3 [18] ...
1/4 [10]2/4 [14]3/4 [19] ...
1/5 [15]2/5 [20] ...
1/6 [21] ...

As you can see, if the rational numbers in the form p/q are organized in an infinite matrix, we can start counting by diagonals, and eventually get to any p/q you care to mention. So every positive rational number has precisely one positive integer to which it's mapped. And therefore the sets are equal in size.

If you want another mapping, try mapping any p/q (where p and q are relatively prime) to 2^p x 3^q; that maps the positive rationals to a subset of the positive integers. Of course, if you grasp why that works, you've probably learned the diagonals proof already.

Related Posts (on one page):

  1. Beyond Infinity:
  2. Are There More Positive Rational Numbers than Positive Integers?
  3. To Infinity, and Beyond:

Krugman v. Krugman on Social Security:

Is Social Security in trouble? If you're talking to Paul Krugman, it would depend on when you asked him, as Ruth Marcus documents in this column. It's almost enough to make one think Krugman's become a crude partisan.

UPDATE: Krugman responds to Marcus here. Mark Thoma thinks Krugman has a good defense. Ramesh Ponnuru less so. And Henry Farrell is glad to see newspaper columnists engaging -- and actually challenging -- each other.


Candidates on Second Amendment Case:

Yesterday, Senator Fred Thompson issued a statement on the Supreme Court's decision to grant certiorari in the District of Columbia gun ban case. It reads, in part:

I’ve always understood the Second Amendment to mean what it says – it guarantees a citizen the right to “keep and bear” firearms, and that’s why I’ve been supportive of the National Rifle Association’s efforts to have the DC law overturned.

In general, lawful gun ownership is a pretty simple matter. The Founders established gun-owner rights so that citizens would possess and be able to exercise the universal right of self-defense. Guns enable their owners to protect themselves from robbery and assault more successfully and more safely than they otherwise would be able to. The danger of laws like the D.C. handgun ban is that they limit the availability of legal guns to people who want to use them for legitimate reasons, such as self-defense (let alone hunting, sport shooting, collecting), while doing nothing to prevent criminals from acquiring guns.

The D.C. handgun ban, like all handgun bans is necessarily ineffectual. It takes the guns that would be used for self protection out of the hands of law-abiding citizens, while doing practically nothing to prevent criminals from obtaining guns to use to commit crimes. Even the federal judges in the D.C. case knew about the flourishing black market for guns in our nation’s capital that leaves the criminals armed and the law-abiding defenseless. This is unacceptable.

The Second Amendment does more than guarantee to all Americans an unalienable right to defend one’s self. William Blackstone, the 18th century English legal commentator whose works were well-read and relied on by the Framers of our Constitution, observed that the right to keep and bear firearms arises from “the natural right of resistance and self-preservation.” This view, reflected in the Second Amendment, promotes both self-defense and liberty. It is not surprising then that the generation that had thrown off the yoke of British tyranny less than a decade earlier included the Second Amendment in the Constitution and meant for it to enable the people to protect themselves and their liberties.

Governor Mitt Romney also issued a statement, which reads in full:

It is my hope that the Supreme Court will reaffirm the individual right to keep and bear arms as enshrined in the Bill of Rights and protect law abiding gun owners everywhere. To further guard this fundamental liberty, as President, I will take care to appoint judges who will not legislate from the bench but will instead strictly interpret the Constitution.

If Mayor Rudy Giuliani issued a statement, I could not find it on his website. [UPDATE: I must've not looked very hard, because more than one commenter found this statement: "I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."]

I could not find a statement on the Senator Barack Obama or Senator Hilary Clinton campaign sites either. Note: If these or other candidates issued statements on the cert. grant, I'll post links to those as well. Just e-mail them to me, or note them in the comments.


To Infinity, and Beyond:

A recent conversation reminded me that many of my lawyer friends don't know these really cool mathematical items, but enjoy them when they learn about them. I thought, then, that I'd quickly go through them; I'm no math maven these days, but I think I can get them right, substantively even if not with the level of formal precision that hard-core math people might prefer.

Here's the first question: Are there more positive integers (1, 2, 3, 4, 5, ...) or more integer squares (1, 4, 9, 16, 25, ...)? The answer: The two sets are of the same size.

Counterintuitive, some may say: After all, positive integers include all the squares, plus all the nonsquares, as well. In any interval from 1 to n, when n>1, there are more integers than squares; what's more, the ratio increases as n grows. In 1 to a million, for instance, there are a thousand times more integers than squares.

Yet this is quite true, under the standard mathematical definition of equal size. Let's define two sets as equal if there's a one-to-one mapping between them, so that each number in one set corresponds to precisely one number in the other. The mapping here is simple: Map any integer n to n squared, which is to say 1 to 1, 2 to 4, 3 to 9, 4 to 16, 5 to 25, and so on. Every number in the positive integers maps to precisely one square, and vice versa. The two sets are equal.

In fact, as one can easily prove through a similar approach, any two infinite subsets of the positive integers are equal. In fact, this may lead you to replace your old intuition (lots more integers than squares) with a new one (hey, both sets are infinite, and infinity = infinity). But not so fast! Two questions for you: Are there more positive integers or positive rational numbers (numbers that are the ratio of two integers, such as 2/7 or 549/100)? And are there more positive integers or real numbers? More on that soon.


"Handguns Are Used in Most US Assaults and Robberies,"

reports a BBC caption. Uh, no: According to the Justice Department's National Crime Victimization Survey (2005 data), table 66, handguns are used in 5.4% of U.S. assaults and 26.3% of robberies.

Thanks to Charles Curley for the pointer. I've e-mailed BBC with the correction; please let me know if you see them making it.

UPDATE: Even if one uses the Uniform Crime Reports data, which is generally thought to be less reliable because it focuses only on crimes reported to the police, only 42.2% of all robberies involved firearms generally (likely nearly all handguns, but still not "most" robberies), and only 21.9% of all aggravated assaults involved firearms generally, even though "aggravated assault" is a kind of assault that is especially likely to use a deadly weapon — the statistics for all assaults would surely be far lower. (I cite 2006 data here, but the 2003 data is comparable.)

I also should have pointed out that the error isn't just in the caption, but also in the article itself, which says "Handguns are used in two-thirds of robberies and assaults and in half of murders in the US, according to statistics from the Federal Bureau of Investigations." The murder statistics are about right, but, as I note above, the robbery and assault numbers are flatly wrong.

FURTHER UPDATE: The BBC has revised the page to eliminate these errors; the original is still available in the google cache.


Radio Debate on the Second Amendment:

From 10:06 to 11 Pacific this morning, I'll be on KPCC-FM (89.3), a local public radio station, talking about the Second Amendment with the host, Larry Mantle, and Erwin Chemerinsky, who'll be on the other side. (Someone else will be filling in for Erwin after the half hour.)

The show will be taking listener calls, so if you'd like to call (at 866-893-KPCC [5722]), please do. The program is also available on live streaming audio.


The Second Amendment as Teaching Tool in Constitutional Law Classes:

The Supreme Court is about to fill in (whether rightly or wrongly) one of the last blank spots on the constitutional map. This means law professors are about to lose one of the few areas where they can get their students to discuss an exciting constitutional rights issue by talking about text, structure, history, and more, with a minimum of distraction from What The Justices Have Told Us. Most Constitutional Law courses are overwhelmingly (and understandably, though not always entirely fortunately) about the Supreme Court Reports, not about the Constitution as a document. Until now, the Second Amendment has offered a great opportunity for a different approach.

In light of this, I thought I'd link to "The Second Amendment as Teaching Tool in Constitutional Law Classes," an article that I put together in 1998 -- it's a joint piece, with sections from Bob Cottrol, Sandy Levinson, Scot Powe, pre-InstaPundit Glenn Harlan Reynolds, and me. I hope it will be of interest even to non-conlawprofs, but I especially hope that some constitutional law professors take our advice in this coming semester.


Why You Shouldn't Go to Law School: Paul Gowder makes the case here. I think Paul gives short thrift to practicing criminal law, though. You won't make a ton of money as a prosecutor or defense attorney, but it avoids a lot of the problems he mentions.

  UPDATE: I should add, in response to some of the thoughtful comments, that I gather Paul is deliberately stacking the deck to provide a counterpoint to some misunderstandings about practicing law held by a number of law school applicants. Some applicants imagine that a law degree will open the door to practicing international human rights law before the Supreme Court at a prestigious firm that pays them a $1 million a year salary plus free car service at 5pm when the workday is over. The reality is different, and I gather Paul wants those students to know it. The real lesson comes at the end of the original post: "Make this decision very carefully. Don't just drift into it because you're not sure what else to do with a humanities degree."

  ANOTHER UPDATE: Michael Froomkin comments here.

Tuesday, November 20, 2007

One Last Ron Paul Post:

Several Paul supporters have pointed me to the Paul campaign's official statement on racism, which they say makes it clear that Paul is against racism, and doesn't want the support of racists. Color me unimpressed and unpersuaded, at least on the latter point. Here is the statement, with my comments in bold:

A nation that once prided itself on a sense of rugged individualism has become uncomfortably obsessed with racial group identities.

Just recently? No obsession with "racial group identities" in the Jim Crow South? Was African slavery "rugged individualism?" Whites, in general, are actually much less interested in their "racial group identities" these days, aren't they?

The collectivist mindset is at the heart of racism.

Okay, I'll buy that.

Government as an institution is particularly ill-suited to combat bigotry. Bigotry at its essence is a problem of the heart, and we cannot change people's hearts by passing more laws and regulations.

The primary issue for public policy isn't whether "bigotry" can or should be stopped by government, it's whether "discrimination" (acting on bigotry with regard to employment, housing, etc.) can and should be stopped by government.

It is the federal government that most divides us by race, class, religion, and gender. Through its taxes, restrictive regulations, corporate subsidies, racial set-asides, and welfare programs, government plays far too large a role in determining who succeeds and who fails. Government "benevolence" crowds out genuine goodwill by institutionalizing group thinking, thus making each group suspicious that others are receiving more of the government loot. This leads to resentment and hostility among us. (emphasis added)

Wait, I thought "we cannot change people's hearts by passing more laws and regulations!" So the government can only create bigotry, but never combat it?

And come on, the idea that the federal government "most divides us" is absurd. I don't know how to measure the precise effect of government on harmony among Americans, but I do know that historically there is a positive correlation between a small federal government and high levels of bigotry in society. I don't think that this is a causal correlation, but it's also true that, historically, small federal government hardly prevented racism and other forms of bigotry, and that large and growing federal government has been consistent with a decline in such bigotry.

Racism is simply an ugly form of collectivism, the mindset that views humans strictly as members of groups rather than as individuals. Racists believe that all individuals who share superficial physical characteristics are alike: as collectivists, racists think only in terms of groups. By encouraging Americans to adopt a group mentality, the advocates of so-called "diversity" actually perpetuate racism.

So far, Paul has condemned racism in general, but the only specific categories of racialist thinking he has criticized are racial set-asides, and advocates of "so-called 'diversity.'"

The true antidote to racism is liberty. Liberty means having a limited, constitutional government devoted to the protection of individual rights rather than group claims. Liberty means free-market capitalism, which rewards individual achievement and competence - not skin color, gender, or ethnicity.

This wording technically would apply to claims of white European males making "group claims" against the government, but given that in practice it's only non white European males who are currently the beneficiaries of group claims, Paul is continuing to attack only left-wing racialists, and not more traditional manifestations of racism.

In a free society, every citizen gains a sense of himself as an individual, rather than developing a group or victim mentality. This leads to a sense of individual responsibility and personal pride, making skin color irrelevant. Racism will endure until we stop thinking in terms of groups and begin thinking in terms of individual liberty.

In short, at best this statement reveals a naive faith in the idea that government is the root of all problems, as in the old joke, "How many libertarians does it take to screw in a light bulb? None, the market will take care of it!" Don't like racism? Reduce the federal government and it will go away!

At worst, by completely ignoring the historical role of racism in American society, and the diminished but not insubstantial role racism by whites continues to play in our society, and focusing criticism only on advocates of "diversity," (even, apparently, when they advocate only voluntary, non-governmental action to achieve diversity), the Paul campaign is appealing to the Pat Buchanan (and beyond) wing of the "Old Right", while trying to preserve some plausible deniability on race to its more tolerant libertarian constituency.

That's not to say that personally Paul isn't really against racism; in the absence of evidence to the contrary, I assume that he is. Rather, the point is that his campaign seems to be taking the same unfortunate position that Goldwater did in 1964; condemning racism in general on principled libertarian grounds, but providing winks and nods that support from racists for racist reasons would be welcome.

And now, back to my hiatus.

UPDATE: Here's a transcript of Paul condemning the 1964 Civil Rights Act. Interestingly, Paul doesn't manage to slip in any kind words for the Act's prohibition on discrimination by the states, a prohibition all principled libertarians should support, and, for that matter, that even Goldwater, with his strong suspicion of federal power, supported. Paul's condemnation of "forced integration" under the act is rather ambiguous; is he talking only about government imposition on private parties, or about the federal government's role in prohibiting state and local government discrimination, too?

FURTHER UPDATE: A similar, somewhat more detailed critique by Dale Franks.

And, from Alabama history professor, David Beito, here are clips of Ron Paul speaking in a debate before a primarily minority audience. As David points out, Paul deserves praise for pointing out the destructive effects of the drug war on inner-city communities.

The Second Amendment and the Living Constitution:

Today also seemed like a good day to reprint my 2002 item on the Second Amendment and the living Constitution:

[Some ask]: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion ... the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an poll from [2002], 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll [from 2002] found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.


Reflections on Ron Paul:

Various people have asked me what I think of Ron Paul's presidential campaign, and whether it will be good for libertarianism. Here's my take:

Ron Paul deserves credit for his strong commitment to limited government on many issues, including taxes, regulation, federal spending, and federalism-based limits on federal government power. Nonetheless, I am skeptical that his candidacy will provide much of a boost to libertarianism. There are also a number of major nonlibertarian elements to Paul's issue positions, some of which are extremely disturbing. The worst is his highly statist position on immigration. I should also note that I strongly disagree with Paul's foreign policy positions. But I'm not going to focus on those issues in this post, because I think libertarianism leaves room for extensive disagreement in that field.

I. Why Ron Paul's Candidacy Won't Provide Much Help to Libertarianism in the Long Run.

The big problem with claims that Paul's candidacy will provide a major boost to libertarian prospects is that he has virtually no chance of winning the Republican nomination or even coming close to doing so. Virtually all polls have Paul running under 10%. Despite the understandable enthusiasm of Paul's supporters, I doubt that he will even come close to winning a single primary, let alone the nomination. I don't see how libertarian ideas are helped by becoming associated with a presidential campaign doomed to abject failure. To the contrary, if libertarianism more generally becomes closely associated with Paul, his virtually inevitable crushing defeat will be viewed as a major setback for all of us.

Some Paul advocates compare him to Barry Goldwater or George McGovern, presidential candidates who advanced their ideology's longterm prospects despite suffering overwhelming electoral defeat. The big difference between Paul and these predecessors is that they managed to win control of their respective political parties, even though they went on to lose in the general election. Paul, by contrast, has no realistic chance of taking control of the Republican Party.

II. How Libertarian is Paul?

Even if Paul has no chance of winning and little chance of providing a major boost to libertarian prospects, it might be reasonable to support him as a protest candidate, in order to express support for libertarian views for its own sake. I might be willing to go along with this view if it were not for the fact that some of Paul's major issue positions are distinctly nonlibertarian.

As the Club for Growth describes here, Ron Paul has opposed virtually all free trade agreements. Few ideas are more fundamental to libertarianism than free trade. As the Club has documented, Paul also has opposed school voucher programs. In both of these cases, in fairness, Paul claims that his position is based on the idea that some other approach - unilateral free trade or home schooling - is even more libertarian than what he opposes. Even if he is correct on these points, I see no libertarian virtue in supporting the far less libertarian status quo against free trade agreements and school vouchers respectively. Even if trade agreements and vouchers are not the optimal libertarian policies, they are surely superior to the status quo of tariffs and government monopoly schooling.

Perhaps worst of all, Paul has bought into the conservative nativist line on immigration. He not only favors a massive crackdown on illegal immigration but even seems to endorse the view that immigration should be "reduced, not expanded" whether legal or not. To my mind, the freedom to choose where you live and the right to move to a freer and more prosperous society are among the most important of all libertarian principles. From a libertarian perspective, our relative openness to immigration is one of the most admirable aspects of America.

Unlike in the case of free trade and school choice, Paul doesn't even pretend to argue that his position is based on the idea that there is some other policy that will be even more libertarian than the one he opposes. Instead, he clearly endorses the big goverment option of a "allocat[ing] far more resources, both in terms of money and manpower" to cracking down on illegal immigration and perhaps reducing legal immigration as well.

Lastly, like David Bernstein, I am troubled by Paul's refusal to repudiate the Stormfront neo-Nazis, racists, 9/11 "Truthers," and other assorted wackos who have endorsed him. Paul is not responsible for the views of these people, and I do not believe that he personally agrees with them. However, his apparent unwillingness to distance himself from them suggests that he is insensitive to the despicable nature of their views, and the significant damage that association with them could do not only to his campaign, but to libertarian causes more generally.

On some of the above issues, I might be willing to swallow Paul's shortcomings if he had a real chance of winning. A successful campaign necessarily requires compromise, and I'm not naive enough to believe that I can find a viable candidate that I agree with on everything. A libertarian protest candidate, however, must be judged by higher standards. If I am to support a candidate not because he is the lesser evil among those with a chance of winning, but as a statement of libertarian principle, he better actually reflect those principles. By that standard, Paul clearly falls short.


"Necessary to the Security of a Free State":

Apropos today's Supreme Court decision to hear the D.C. Second Amendment case, I thought I'd post the final version of my "Necessary to the Security of a Free State," 83 Notre Dame L. Rev. 1 (2007), which is forthcoming in a week or two. Here's the Introduction (materially changed from the earlier version I posted some months ago):

“A well regulated Militia, being necessary to the security of a free State,” the Second Amendment says, “the right of the people to keep and bear Arms, shall not be infringed.” But what did the Framing generation understand “free State” to mean?

Some say it meant a “state of the union, free from federal oppression.” As one D.C. Circuit judge put it [dissenting in the case that the Court has just agreed to hear -EV], “The Amendment was drafted in response to the perceived threat to the ‘free[dom]’ of the ‘State[s]’ posed by a national standing army controlled by the federal government.” Or as a lawyer for one leading pro-gun-control group wrote, “Presumably, the term ‘free State’ is a reference to the states as entities of governmental authority. Moreover, the reference to the ‘security’ of a free State must have something to do with the need to defend the state as an entity of government.”

This reading would tend to support the states’ rights view, and is probably among the strongest intuitive foundations for the view—after all, “State” appears right there in the text, seemingly referring to each state’s needs and interests. The reading would suggest the right might cover only those whom each state explicitly chose as its defensive force, perhaps a state-selected National Guard. And it would suggest the Amendment doesn’t apply outside states, for instance in the District of Columbia: “‘the District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it’” [citing the D.C. Circuit dissent].

But if “free State” was understood to mean “free country, free of despotism,” that would tend to support the individual rights view of the Amendment. “[T]he right of the people” would then more easily be read as referring to a right of the people as free individuals, even if a right justified partly by public interests, much as “the right of the people” is understood in the First and Fourth Amendments. The right would cover people regardless of whether they were selected for a state-chosen defensive force, since the right would not be focused on preserving the states’ independence. And it would apply to all Americans, in states or in D.C. [citing the D.C. Circuit majority].

We see a similar controversy about the change from James Madison’s original proposal, which spoke of “security of a free country,” to the final “security of a free State.” Some assume the change was a deliberate substantive shift towards a states’ rights provision, and point in support to the Constitution’s general use of “state” to mean state of the union (except where “foreign State” is used to mean “foreign country”). Others assume the change was purely stylistic, and thus did not reflect a shift to a states’ rights view; they sometimes point for evidence to the absence of recorded controversy about the change.

This Article makes a simple claim: there’s no need to assume. There is ample evidence about the original meaning of the term “free state.” “Free state” was used often in Framing-era and pre-Framing writings, especially those writings that are known to have influenced the Framers: Blackstone’s Commentaries, Montesquieu’s Spirit of Laws, Hume’s essays, Trenchard and Gordon’s Cato’s Letters, and works by over half the authors on Donald Lutz’s list of thirty-six authors most cited by American political writers from 1760 to 1805. It was also used by many leading American writers, including John Adams in 1787, James Madison in 1785 and the Continental Congress in 1774.

Those sources, which surprisingly have not been canvassed by the Second Amendment literature, give us a clear sense of what the phrase “free state” meant at the time. In eighteenth-century political discourse, “free state” was a commonly used political term of art, meaning “free country,” which is to say the opposite of a despotism.

Political theory of the era often divided the world into despotisms and free states (either republics or constitutional monarchies). Free states had certain properties as a result of their being free, and were susceptible to certain threats of reverting to despotism. To remain a free state, the free state had to take these threats into account, and to structure its institutions in a particular way.

“State” simply meant country; and “free” almost always meant free from despotism, rather than from some other country, and never from some larger entity in a federal structure. That is how the phrase was used in the sources that the Framers read. And there is no reason to think that the Framers departed from this well-established meaning, and used the phrase to mean something different from what it meant to Blackstone, Montesquieu, the Continental Congress, Madison, Adams, or others.

Even given this finding, of course, many important arguments about the Second Amendment remain. But when we consider those arguments, we should recognize that the phrase “a free State” was not understood as having to do with states’ rights as such. Rather, it referred to preserving the liberty of the new country that the Constitution was establishing.


Justice Kennedy and the Second Amendment: What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?

  As a general rule, Justice Kennedy tends to construe the Bill of Rights so its protections apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy often finds that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)

  What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.

  UPDATE: I have edited the post a bit for style.

Exciting Stem Cell News:

Two publications (Science and Cell) published papers today showing that scientists have succeeded in reprogramming human adult cells to behave much like human embryonic stem cells (hESCs). Following on findings published several months using mouse rather than human cells, the researchers responsible for today's results were able to spur the reprogramming by inserting four genes into the adult cells.

The big question is whether this new technique will quell the stem cell research controversy, which arises largely from the fact that the stem cells scientists believe have the greatest medical potential are today derived from 5-day old embryos. The answer is "maybe." Scientists interviewed in today's New York Times article were ebullient about the results, but it is worth remembering that there have been two major scientific discoveries in the last 18 months that promised to end the debate and then quickly faded from public view. In the summer of 2006, scientist Robert Lanza showed that it was possible to produce hESC lines without destroying embryos by carefully removing single cells from many 8-cell embryos. Although long term effects are unknown, we know that removing a single cell from an embryo at that stage does not prevent it from developing. This technique is routinely used to obtain genetic material for preimplantation genetic testing, and the embryos (less one cell) are successfully used for implantation by in vitro fertility clinics. In January of this year, scientists from Harvard and Wake Forest Universities reported that they had discovered stem cells in amniotic fluid that possessed many traits of hESCs.

I am optimistic about today's discovery, but three questions remained to be answered, two scientific and one philosophical.

The scientific questions: First, will further research show that these reprogrammed cells actually have all the features of hESCs that make the latter so promising? This means they not only must be able to create all the body's cell types, but they must be able to proliferate as rapidly and maintain their unspecialized characteristics in culture as well as hESCs do. Second, will the reprogrammed cells create cancers or other gentic abnormalities? The work done using mouse cells earlier this year suggests the answer is probably yes at the moment, although improvements in the technique might solve this problem. If this problem cannot be overcome, reprogrammed cells might be just as useful as hESCs for some research purposes but not suitable as the basis for stem cell preparations that could be used as treatments for patients.

The philosophical question: Will opponents of embryo research embrace the concept of reprogramming cells to their embryonic state? The technology suggests it might one day be possible to use a cell reprogrammed in this way to create an entire person, in the same way that an implanted embryo can develop into a person. Given this possibility, will people who believe embryos have the same moral value as persons and thus should not be used for experimentation believe that reprogrammed cells also have the same moral value as persons and thus also should not be used for experimentation? There is a substantial difference between an embryo and and embryonic stem cell, but not everyone who favors the protection of embryos thinks this difference is dispositive of the question. When Robert Lanza demonstrated the possibility of using single cells from a 8-cell embryos to create cell lines, some opponents of embryo research (including Senator Sam Brownback) protested on the ground that the single cell in question deserved protection. More discussion of the Lanza technique and the response to it can be found in Stem Cell Century: Law and Policy for a Breakthrough Technology).


Some background on the D.C. handgun and self-defense bans:

1. Since the enactment of the 1976 D.C. ban on handguns and on home self-defense with any gun, handgun bans have been almost universally rejected by the American body politic. Indeed, 45 states now have laws to prevent the local enactment of laws like the D.C. ban. (Court, capital and handgun. Ft. Worth Star-Telegram.) Accordingly, under a "living Constitution" theory, the case against bans on handguns and on self-defense with firearms is very strong.

2. The D.C. ban is manifestation of the bigotry and incompetence which pervade much of the D.C. municipal government. (A Capital Crime. America's 1st Freedom.)

3. The case for handgun prohibition is very weak, once its premises are carefully examined. (Peril or Protection? The Risks and Benefits of Handgun Prohibition. 12 St. Louis University Public Law Review 344 (1993).)

4. Although the Court has not issued a major Second Amendment decision since Miller in 1939, the Supreme Court has mentioned or discussed the Second Amendment in thirty-five other cases, almost always in a context which requires an individual rights interpretation. (The Supreme Court's Thirty-five Other Gun Cases. 18 St. Louis University Public Law Review 99 (1999).)

5. The interpretation of state constitution right-to-arms clauses strongly points to an individual rights interpretation of the Second Amendment. Over the last four decades, voters in many states have added or strengthened state constitution right to arms clauses, always doing so by overwhelming majorities. These state actions affirm the vitality and importance of the right to arms under a "living Constitution" theory. (What State Constitutions Teach about the Second Amendment, 29 Northern Kentucky Law Review 845 (2002). Cited in Mosby v. Devine, 851 A.2d 1031, 1040 (R.I. 2004), majority opinion by Chief Justice Williams; State v. Hamdan, 264 Wis.2d 433, 467 n. 23, 665 N.W.2d 785, 802 n. 23 (Wisc. 2003), majority opinion by Justice David T. Prosser.)

6. The claim that a gun in the home of an ordinary person is a terrible danger which clearly outweighs the protective value of the gun is empirically false. (The Fallacy of '43 to 1'. National Review Online.)

7. The Brady Campaign claims that it does not support handgun prohibition, and that it does support self-defense by law-abiding gun-owners. Yet the Brady Campaign has fought vigorously in Congress against attempts to reform the D.C. handgun and self-defense bans, has fought in the instant case to preserve the bans, and fought (under one of its former names, the National Council to Control Handguns) to preserve the handgun and self-defense bans in D.C. Superior Court and the D.C. Court of Appeals in the 1976-78 case of McIntosh v. Washington.


"Wounded Soldier: Military Wants Part Of [Enlistment] Bonus Back":

Yow! Here's the story. My quick research seems to confirm that the military does have this sort of policy, on the theory that the bonus is an advance payment for a full term of service and the soldier isn't entitled to keep it unless he completes the full term -- even when the failure to complete the term is a result of a combat wound.

I should note, since this is a legal blog, that the military may well have a right under the terms of the enlistment contract to take back the bonus. It just strikes me as a scuzzy thing to do. Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Enlistment Bonuses for Soldiers Who Are Discharged Because of Combat Injuries:
  2. "Wounded Soldier: Military Wants Part Of [Enlistment] Bonus Back":

Sources on the Second Amendment:

Since the Second Amendment is even more in the news today than usual, I thought I'd repost a link to my Sources on the Second Amendment, a Web page that includes:

  1. The text of related contemporaneous right-to-bear-arms provisions

  2. Calls for the right to keep and bear arms from state ratification conventions

  3. "The right of the people" in other Bill of Rights provisions

  4. Some other contemporaneous constitutional provisions with a similar two-clause structure

  5. Leading 18th- and 19th-century commentary on the right to bear arms

  6. Excerpts from Supreme Court cases that mention the right

  7. Relevant statutes, such as the Militia Act of 1792 and the currently effective Militia Act

Here also are my latest and best-formatted lists of state constitutional rights to keep and bear arms, current and past, sorted by state and by date, and categorized by type.

Finally, here's my testimony on the Second Amendment to the Senate Subcommittee on the Constitution -- it's a bit date, since it doesn't include my research on the phrase "free state," but it should still be a helpful articulation of my views.


Opinion Preliminarily Enjoining SFSU Civility Code

is now online; for more on the matter, see here.


Supreme Court Grants Cert in Second Amendment Case: This was expected, but is still big news. The reformulated Question Presented is pretty specific:
"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

That Was Fast: November 8: Michael Mukasey is confirmed as Attorney General of the United States. November 19: The Justice Department announces that Rachel Paulose, the highly controversial U.S. Attorney for the District of Minnesota, is stepping down.

  Eric Black seems to have the inside scoop on the dynamics inside the U.S. Attorney's Office leading up to the resignation.

Monday, November 19, 2007

Ron Paul's Defenders:

You can find defenses of Ron Paul from my criticisms here, here, here, here, and here. Unfortunately, the authors mostly engage in juvenile rhetorical antics, and none of them manage to address my central point: why does Rep. Paul's campaign find it so difficult to simply issue a statement in Paul's name that he neither solicits nor welcomes the support of the likes of Stormfront? And why do so many of his supporters think it's such an imposition to ask this of him? Then again, given that Paul's blog defenders come from,, and, the question may answer itself--not that these groups are "Nazi" in ideology, but they're not going to be winning any awards from the ADL or NAACP any time soon, either.

OTOH, a friend of mine, who is decidedly liberal (in the broad sense) on race, writes:

In my personal experience here in the hear Old Confederacy, I see no evidence of Nazi participation on the ground in the Paul campaign. By the same token, I have a lot of young, thoughtful, and highly energized supporters. This is the best thing to happen to libertarianism in generations. Frankly before Paul came along, I thought that our movement was dying off.

I wish you paid more attention to his central role in our revival as a movement. Can you imagine that Newsweek, Time, New York Times, etc. would have written so many positive and serious articles about the rise of libertarianism without Paul? Paul is now getting 8 percent in New Hampshire. Compare that with Ed Clark’s 1 percent.

Also, it bears repeating here that Paul has been extremely forthright in his condemnation of racism and, unlike any other candidate, has explicitly condemned the racist aspects of the drug war, police brutality, and capital punishment. Where are Thompson and Giuliani on those issues? Neither bothered to attend the Tavis Smiley debate organized debate while Paul did and even got a positive a response from the crowd. Shouldn’t that count in Paul's favor that he has the courage to address these issues and just as equally count against his opponents?

Let me also note that the poll data indicates that Paul is far more likely to get black support than any other GOP candidate, quite a significant accomplishment given the resistance of blacks to the GOP.... If you look at the Paul youtubes you will see a fair amount of black faces.

Paul certainly has the potential to be the best thing that has happened to libertarianism as a political movement in a long time. He also has the potential to be the worst thing, if, as he gets more public exposure libertarianism gets associated in the public mind with 9/11 truther, southern irredentists, "white nationalists," and so forth.

"Pretrial Release of Felony Defendants in State Courts":

A very interesting new report from the U.S. Department of Justice, though limited to the top 75 largest counties (and covering 1990-2004).

An example of the kind of data you can find: When the most serious arrest charge was murder, 45% were denied bail, and 35% were required to provide bail of $50,000 or more; 19% were actually released. For the next most serious charge, rape, 9% were denied bail, and 25% were required to provide bail of $50,000 or more; 53% were actually released. There's much more interesting material in that report, and in the supporting data files.


Federal Appellate Clerkship Statistics:

Federal Appellate Judicial Clerks 2008 reports some very interesting data about federal appellate clerkships. Note that the site has information only about 452 clerkships, and between active judges (165, with 3 or 4 clerks each) and senior judges (104, with 0 to 3 clerks each, I think), there are considerably more jobs out there than that. Still, the data is the best I've seen, and strikes me as likely at least reasonably representative. Particularly interesting tidbits:

1. The Long(ish) Tail: Though 77.2% of the clerks come from the top 18 schools (top 18 rather than top 20 because the top 18 has been unusually stable in the U.S. News rankings over the years), that means that 22.8% come from below the top 18, 13.1% from below the top 30, and 8.1% from below the top 50.

2. Yale: 26.5% of the Yale class is clerking for circuit judges; that doesn't even count the district court clerks. The runners-up are way behind (Stanford at 15.2%, Chicago at 13%, and Harvard at 9.9%).

3. Successes: Northwestern, #5 on the list of most appellate clerks placed (as a percentage of the class), does considerably better than its U.S. News ranking (#12). Same for Chicago (#3 / #6), Duke (#6 / #10), UCLA (#9 / #15), Vanderbilt (#11 / #16), Texas (#12 / #18), and Notre Dame (#14 / #28). I exclude from this list schools which placed 3 or fewer clerks; if you want to see them (e.g., Richmond [U.S. News #77], which placed a higher percentage of its class than Cornell [U.S. News #13] and USC [U.S. News #16]), go to the site.

4. UCLA: Did I mention how well we did? In 2008-2009, 18 federal court of appeals clerks will be from UCLA, which amounts to 5.4% of our class (note that some of them will be from classes other than the class of 2008, but likewise some of our 2008 graduates will likely get clerkships for future years). Woohoo! Not the percentage of Yale, Stanford, Chicago, or Harvard, but within 1.5% of everyone else, and #9 in the rankings (maybe tied for #8, or at least very nearly so, with Michigan).

5. Notes: (A) Much of this may be based on law school culture; some excellent law schools who routinely place their graduates in excellent jobs might simply not urge their graduates to get clerkships as much as some other schools do. (B) There is some random variation in these numbers from year to year. (C) The numbers may change if other schools report more data to this site. So take these statistics for whatever you feel they are worth.


Assessing Presidential Candidates:

Like David Bernstein, I doubt I will pick a particular presidential candidate to support. In my view, assessing candidates is a far more difficult business than many people seem to suppose. In looking over the candidate's record, it's necessary to separate out those positions that he or she took because of genuine commitment from those adopted because of the political constraints the candidate was under at the time. Consider Mitt Romney's socially liberal/pro big government (on economic issues) record as governor of Massachusetts. How much of this represented Romney's true convictions, and how much was the liberal Massachusetts political environment? It's very difficult to tell. If Romney's past positions were primarily a product of the political environment he was in, they may be poor guides to how he will perform as president in a very different setting.

Like co-blogger Jonathan Adler, I'm impressed with some of Fred Thompson's statements on federalism. However, I wonder how much of it he really means and how much represents the fact that he spent his political career as a senator from a conservative state and then as a Republican presidential candidate (settings where supporting federalism - especially in a vague general way - carries few risks, and at least some political benefits). Back in 2000, candidate George W. Bush also made positive noises about federalism, only to support massive expansions of federal power once he got into office. Thompson is probably better in this respect than Bush (I suspect); but it's hard to tell by how much. In any event, being better than Bush on federalism is a very low standard of comparison.

Ultimately, however, the key lesson of libertarianism is that we don't want a system where we have to place heavy reliance on the good intentions of individual politicians. Such reliance is all too likely to be misplaced. Instead, our ultimate objective must be to reimpose strong limits on government power so as to minimize the harm that politicians of any stripe can cause.

As I see it, my main comparative advantage as a blogger is not to tell you to support candidate X vs. candidate Y, but rather to help promote and develop libertarian ideas as thoughtfully and effectively as I can. If those ideas become widely enough accepted, even the most unprincipled of politicians will have to reckon with them out of self-interest. If they don't, even candidates personally sympathetic to liberty will have to support big government to a large extent in order to get themselves elected. The world I hope one day to live in is one where the outcome of presidential elections matters a lot less than it does now because government - especially the federal government - doesn't wield so much power.

None of this means that we should be completely indifferent to electoral outcomes. Some candidates are indeed a lesser evil than others. However, I prefer to focus most of my energy on analyzing broader systemic issues rather than on the immediate electoral politics of the moment. In the long run, the tide of opinion on the former is likely to be far more important than the latter.


"The Maryland Perspective" on Federal Law: You've probably heard of the "Chicago School" of legal thought. But did you know that there is also a "Maryland perspective" on the law? In today's Baltimore Sun, the editors support the decision of Maryland Senators Mikulski and Cardin to block the judicial nomination of the current U.S. Attorney for Maryland, Rod Rosenstein, to the Fourth Circuit. The editorial offers a few reasons, but the key point seems to be that Mr. Rosenstein lacks a true "Maryland perspective" on federal law:
  Sens. Barbara A. Mikulski and Benjamin L. Cardin notified the White House as recently as September that they would oppose a Rosenstein nomination . . . because the nominee lacks the critical qualification of a long history in Maryland's legal community. A native of Philadelphia, Mr. Rosenstein was just admitted to the Maryland bar in 2002. . . .
  [T]he Marylanders are also fighting, as they have since the beginning of Mr. Bush's term, to retain genuine Maryland representation in a seat on an appeals court regarded as among the most conservative in the nation.
  This also seems a worthy cause. Federal appeals courts are playing an increasingly important role in interpreting federal and constitutional law. The Maryland perspective, in a group mostly dominated by Southern states, should be heard.
  Can any one explain this "Maryland perspective" of the law? Is it genetic? Are there classes you can take to learn it? Books you can read? Can it be acquired quickly, or must it age like a fine wine during decades of residence? Or is it supposed to be a proxy for political views, with the idea being that a true Marylander isn't particularly conservative? (Oh, and yes, I'm fully aware of the history of state-by-state representation on the federal court of appeals. I think it's important, too. I just think it's amusing that the editors would take a historical practice designed to ensure equal treatment and discuss it as if it were some kind of jurisprudential school.)

  Thanks to Howard for the link.

61 Columbia Professors Dissent

from the 70 Columbia Professors' statement criticizing Lee Bollinger; here's the 61 professors' statement:

Statement of Dissent From CU-FAC Statement

A group of faculty members in the Arts and Sciences has been circulating for signature a "statement of concern" to be presented to the Arts and Sciences Faculty meeting on November 13. The main accusation in the statement is that the university administration has failed to make a vigorous defense of academic freedom. Four specific issues are singled out. One of these relates to budgetary and enrollment decisions pertaining to the Arts and Sciences, about which which most of us have no business rendering judgment. The remaining three, however, deal with academic affairs relevant to the university as a whole:

1. That the administration has failed to make clear that interventions by outside groups "will not be tolerated": We agree that tenure reviews must be conducted exclusively by peer academics within the university and at other academic institutions. However, the university has responsibilities to its students, alumni, donors, and outside community. When nonacademics and outsiders encounter or hear about what they consider inappropriate forms of teaching, allegations of intimidation or harassment, or the distortion of basic historical or scientific facts, they are justified in expressing, and entitled by the First Amendment to express, their objections. No university administration has the power to prevent such expression.

2. That President Bollinger's introductory remarks to Ahmadinejad “allied the university with the Bush administration’s war in Iraq”: As the publicly available transcript confirms, these remarks addressed sequentially: 1) Holocaust denial; 2) Ahmadinejad's stated intent to destroy Israel; 3) Iran's funding of terrorism; 4) Iran's proxy war against US troops in Iraq; and 5) Iran's nuclear program. Only the fourth item refers to the war in Iraq, and only in the context of Iran's role in financing and arming terrorist attacks against our troops.

3. That "the President has publicly taken partisan political positions concerning the politics of the Middle East, without apparent expertise in this area or consultation with faculty who teach and undertake research in this area” : We follow President Bollinger’s public statements closely. The only one that may be characterized as concerning the politics of the Middle East is his denunciation of the British University and College Union’s proposed boycott of Israeli academics, which he described as “antithetical to the fundamental values of the academy." This statement is actually not about the political problems of the Middle East; it is precisely what President Bollinger is accused of not providing: a vigorous defense of academic freedom, based on his recognition that denying such freedom to any individual or group endangers the entire academic enterprise.

We the undersigned therefore dissent from the CU-FAC statement.

Efrat Aharonovich / Kenneth Altman / Elizabeth Anisfeld / Paul S. Appelbaum / Marc S. Arkovitz / Jeffrey A. Ascherman / Mitchell C. Benson / Mitchell F. Berman / Bernard Berofsky / Nehama R. Bersohn / Joan Birman / Adam Heath Cannon / Charles Calomiris / Mark Cane / Myron L. Cohen / Jonathan David / Len Druyan / Barry A. Farber / Awi Federgruen / Scott A. Fink / Philip Genty / Michael D. Gershon / Michael E. Goldberg / Robert R. Goodman / Victor R. Grann / Linda Granowetter / Jonathan L. Gross / Jeffrey Helzner / Ralph Holloway / Barry Honig / Allen I. Hyman / Judith S. Jacobson / Sandra Kahn / Eric R. Kandel / Ran Kivetz / Oscar Lebwohl / Jonathan Levav / Moshe Levison / Nahum Melumad / Elizabeth Midlarsky / Abraham Monk / Alfred I. Neugut / Walter Neumann / Peter Ozsvath / Evan Picoult / Ruth Raphaeli-Slivko / Irina Reyfman / Jay Rothschild / Samuel Schacher / Alan F. Segal / Alan A. Seplowitz / Neil S. Shachter / Howard Shuman / Ethel S. Siris / Mervyn W. Susser / Robert N. Taub / Olivier Toubia / Warren D. Widmann / Eric D. Zarahn / Assaf Zeevi / Thomas D. Zweifel [EV: line breaks between signatures replaced with slashes]


Which Law Schools Rank Below the Undergraduate Institutions with Which They're Affiliated?

Paul Caron has the data, based on the U.S. News rankings; this complements his earlier post on law schools that outrank their undergraduate institutions.

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?

Prof. Glenn Reynolds (InstaPundit) on How Courts Should Address Individual Right-to-Keep-and-Bear-Arms Claims,

in Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation" (forthcoming in the Tennessee Law Review).

This is a very important issue, whether or not the Supreme Court holds that the Second Amendment secures an individual right — after all, at least 40 state constitutions secure an individual right to bear arms, and they'll remain relevant with regard to those states' gun control laws regardless of the Court's Second Amendment decisions; and Glenn is one of the nation's leading right-to-bear-arms scholars. If you're interested in the subject, I highly recommend his piece, which also has the merit of being only 12 pages long. For a link to the article to which Glenn is responding, see here.


Sunday, November 18, 2007

Republican Candidates Battle for the Law Professor Vote:

Here's the tally so far; a surprisingly large percentage of well-known conservative professors have signed up with a campaign.

Rudy Giuliani: Lillian Bevier, Steven Calabresi, Ronald Cass, Charles Fried, John McGinnis, Daniel Rodriguez, George Priest, Nicholas Quinn Rosencranz, Ron Rotunda

Fred Thompson: Michael Abramowicz, Jonathan Adler, John Baker, Michael Dimino, Viet Dinh, John Duffy, Brian Fitzpatrick, Rick Garnett, Orin Kerr, Caleb Nelson, Eugene Volokh, Todd Zywicki

Mitt Romney (technically an advisory committee on the Constitution and the Courts): Michelle Boardman, Mary Anne Glendon, Alan Ferrell, Douglas Kmiec, Stephen Presser, Brad Smith

John McCain: If law professors are organizing themselves on behalf of McCain, it's not easy to find on the web, though my colleague (and former head of the FTC) Tim Muris is a bigwig in the campaign.

Careful readers will note that Thompson thus far has an overwhelming edge among Volokh Conspiracy bloggers (no, we haven't discussed this among ourselves, and I'm pretty certain there won't be a blog endorsement). I find it especially interesting that Romney, who was pro-choice until recently, seem especially popular among the "serious Catholic" law professors.

As for me, I can't say I have a strong preference, and I find that, as usual for someone like me who is very libertarian and highly skeptical of politicians, the choice is a choice among lesser evils, to wit: Thompson's "Lawyers for Thompson" site attacks Giuliani for being pro-choice and pro-gay rights, which are among Giuliani's greatest virtues as a candidate. I thought Giuliani was about as good a mayor as New York is going to get, but I can't forget that he abused his prosecutorial office for political gain as U.S. attorney in the 1980s, and he is probably the least likely of all the major candidates in both parties to rethink the drug war. At least Giuliani has stayed true to his liberal positions on social issues; Romney's sudden conversion to pro-life conservatism suggests that either his current or his former views were purely opportunistic. And then there's McCain-Feingold.

Ron Paul is a tempting protest vote, and I did support him in 1988 when he ran as a Libertarian, but he strikes me as running less of a "libertarian" campaign than a pacifist, populist campaign that does have some appeal to young and idealistic libertarians, but has too much appeal to the old, paranoid, and racist pseudo-conservatives. There seems to be a right-wing version of the Popular Front mentality among many Paul supporters: just like it was okay for Social Democrats to ally with Stalinists for "Progressive" ends in the old days, it's okay to ally with 9/11 and various other conspiracy theorists, southern secessionists, Nazis and fascists, anti-Semites and racists, against the common enemy of the modern "welfare-warfare" state. Count me out!

So I have no strong preference among the Republican candidates at this point. Even if I did, I can't imagine why anyone would care enough to bother putting my name on a list, but then partisan politics isn't my thing.

UPDATE: Not surprisingly, I've heard from some Paul supporters urging me to reconsider. Also not surprisingly, none of them have provided any indication that my description of the Paul coalition is inaccurate, or that Paul has gone out of his way to discourage support from the conspiracy-mongers and "white nationalists."


Harold Berman, RIP:

I just learned that the extraordinary legal historian Harold Berman just passed away. The New York Times obituary is here. Donald Boudreaux's thoughtful appreciation is here. Berman's magnum opus Law and Revolution was one of a handful of books that truly transformed my thinking about law. It is one of those books that once you read it, it is almost impossible to ever again think about law and especially legal history the same. His insights about the nature of the common law and the spontaneous emergence of the rule of law and personal liberty from the polycentric legal order of the Middle Ages exerted an immense influence on my own scholarship (as probably most evidenced in my article on the "Rise and Fall of the Efficiency of the Common Law"). His work on the intellectual history of the common law is quite extraordinary as well.

One remarkable personal story involving Professor Berman. During the Fall 2001 semester Peter Boettke and I co-taught a class on "The Rule of Law, Freedom, and Prosperity." Professor Berman guest lectured in our class on September 10, 2001. He gave a great lecture and we had a truly memorable conversation over dinner that evening at a now-defunct Vietnamese restaurant in Clarendon (The Queen Bee). He told some fascinating stories about his experiences in the Soviet Union and some of the GMU Economics grad students scandalized him with radical interpretations of his work. An amazing evening. Then we all woke up the next morning to the tragedy of September 11. I believe that Professor Berman finally hired a driver a day or two later to drive him to Richmond, where he and his wife eventually caught a train to Atlanta, finally arriving home three days later. An amazing story.

A true gentleman and an extraordinary scholar. Men (and scholars) like him come along rarely, and I'm glad I had the opportunity to meet him and to learn from his work.


A Danger of Using Foreign Law to Interpret US Law:

The use of foreign law to interpret the US Constitution is a complex subject that too often gets caught up in sound bites. Although at this point, the Supreme Court's use of foreign law in this way has been extremely limited, I have several concerns about proposals to increase that reliance. In this post, I'll just briefly mention one that hasn't gotten enough attention: the Court's lack of relevant expertise.

For a Supreme Court made up of generalists, even keeping up with all the US law that the Court has to deal with is a full-time job, one that the justices often fail at. But at least a justice addressing an issue of American law that he is unfamiliar with has the advantage of dealing with a body of law embedded in a broader legal system that he has at least some understanding of. By contrast, few if any justices have extensive knowledge of foreign legal systems. As a result, justices interpreting foreign law are likely to misunderstand the context of that law, and also to misunderstand relevant differences and similarities between the US and the foreign jurisdiction in question. Thus, even if it is theoretically possible for the Court to mine valuable insights from foreign law, it is unlikely that the real-world Court will actually be able to do so. This lack of expertise may help explain why those justices who do rely on foreign law never seem to do a systematic survey of the relevant foreign precedents, but instead simply pick a few examples that seem to support their position. To take an example from an area of law I'm familiar with, Justice Stephen Breyer sometimes relies on foreign law to justify his positions on federalism issues, as in his famous dissent in Printz v. United States. However, he has never confronted the fact that many federal systems in other democracies (e.g. - Germany) have fairly extensive judicial review of federalism issues, with judges using their power to limit the authority of the central government. Breyer, of course, has taken the position that the US judiciary should virtually never restrict federal government power on federalism grounds. Similarly justices such as Breyer and others who endorse the Court's abortion precedents routinely ignore the fact that most other nations impose more extensive constraints on abortion than would be permitted under US Supreme Court precedent.

These two examples are drawn from the work of liberal justices. However, I doubt that the conservative justices would be much better if they too started to rely on foreign law to buttress their positions in constitutional cases.