Saturday, December 8, 2007

Today is "Pretend to be a Time Traveler Day."--

It's "Pretend to be a Time Traveler Day" on Saturday, Dec. 8. Here are some suggestions to celebrate the traditional holiday:

Remember, dystopian future travelers are very startled that they've gone back in time. Some starters:

- If you go the "prisoner who's escaped the future" try shaving your head and putting a barcode on the back of your neck. Then stagger around and stare at the sky, as if you've never seen it before.

- Walk up to random people and say "WHAT YEAR IS THIS?" and when they tell you, get quiet and then say "Then there's still time!" and run off.

- Stand in front of a statue (any statue, really), fall to your knees, and yell "NOOOOOOOOO"

- Stare at newspaper headlines and look astonished.

- Take some trinket with you (it can be anything really), hand it to some stranger, along with a phone number and say "In thirty years dial this number. You'll know what to do after that." Then slip away.

My favorite time traveler story in the last year was the 2-part South Park episode in which Cartman can't wait for the Wii game player to come out.

O'Connor Bobblehead auction

ending today.

Friday, December 7, 2007

When Foreign Libel and Hate Speech Laws Threaten the Free Speech Rights of Americans:

International law writer Andrew McCarthy has an interesting blog post discussing the ways in which the extremely broad libel and hate speech laws of some foreign nations can be used to undermine free speech rights in the US. For more detail, see his August article on the subject. As McCarthy explains, some states have very broad libel laws that make it easy for public figures to sue their critics even if there is no real proof that the latter have made any false statements about the plaintiff. In addition, some of these nations, including Britain, have very low standards for establishing jurisdiction in libel cases; in some cases it's enough that a few copies of the defendant's book or article have been sold in Britain even if the work was originally published elsewhere.

I. A Growing Threat to Freedom of Speech.

McCarthy discusses several recent cases where radical Islamists have tried to use British libel law to intimidate US journalists and academics. However, the problem goes far beyond these particular cases. Indeed, the most famous case where British libel law was used against an American author was the 1999 lawsuit by British Holocaust denier David Irving against historian Deborah Lipstadt, who had harshly (though accurately) criticized Irving's writings on the Holocaust in one of her books. Although Lipstadt ultimately prevailed, her supporters had to spend hundreds of thousands of dollars on legal fees to fend of a lawsuit that would have been a no-brainer dismissal under the First Amendment in this country.

A similar, though so far less virulent, threat is posed by some foreign states that combine lax jurisdictional standards with expansive hate speech laws that can also be used to punish speech by American writers that is legal in the United States. Even more far-reaching are efforts to establish broad hate speech norms under international law, including the ongoing attempt to create an international law norm against "defamation of religion." John McGinnis and I discuss other similar efforts in this article (pp. 1219-21).

In the case of both libel and hate speech law, foreign states often use it to suppress speech that goes far beyond extreme racist or obviously libelous utterances. For example, hate speech laws in several European states were used to censor the writings of Oriana Fallaci, the late Italian writer who wrote several books attacking radical Islamism (see the discussion of this case and others like it in my article with McGinnis).

II. What is to be Done?

That is the key question famously posed by Lenin, who knew a thing or two about suppressing free speech himself. One relatively easy step is to continue to resist efforts to use international hate speech law to override American law. More generally, we should resist all efforts to impose international law on the US that has not been duly ratified by our domestic lawmaking processes. In the case of international law that violates the Constitution, that means that the US can only be bound by it if it is incorporated into a constitutional amendment.

Determining what to do about expansive libel or hate speech judgments entered against American citizens in foreign states is much harder. One response is to pressure those states' governments to change their laws. We should indeed do this when possible, but realistically such efforts are likely to be overshadowed by competing foreign policy priorities.

McCarthy and others propose the creation of a US legal cause of action against plaintiffs who use foreign libel law to attack the free speech rights of Americans. To my mind, this approach deserves serious consideration. As a tentative proposal, I suggest that Congress consider the possibility of creating a federal cause of action for US citizens who have been victimized by a foreign libel or hate speech lawsuit attacking speech that would be legal in the United States under the First Amendment. The US writer should be able to recover any damages that the foreign court forced him or her to pay, plus legal fees, plus perhaps some amount of punitive damages in order to promote the goal of deterrence. Judgments under the proposed statute should be payable out of any assets that the defendant may have within the jurisdiction of the United States. I stress that this proposal is highly tentative and that I haven't even come close to working out all the details. Still, something like it may be the right approach to this problem.

Defraud the UN and Still Get Paid:

Kamil Idris, Secretary-General of the World Intellectual Property Organization (WIPO), apparently falsified his age and experience to advance his career. As a consequence, he will leave his UN post a year early, but he will still receive one more year of his $300K+ salary and a full pension, according to this report (see also here).

Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?: This is two weeks old, but it's still really interesting. Below you'll find a video of a Utah police officer who pulls over a man for speeding. When the driver refuses to sign the ticket, the officer orders him out of the car. The officer orders the man to put his hands behind his back, and pulls out a taser. The man refuses, says, "What the heck is wrong with you?", and then starts to back and turn away as he puts his hands in his pockets. At that point, the officer (who appears to be alone) tasers the man (at about the 2:35 mark).

  If you're interested, watch the first three minutes of the video and then vote in the poll immediately below. Here's the video:

Was the Officer's decision to use the Taser a reasonable use of force?
Yes, it was a reasonable use of force.
No, it was an unreasonable use of force.
I'm not sure.
Free polls from

More media coverage of the case here. Link via unfogged.

Related Posts (on one page):

  1. More on the Taser Video -- A Response to Scott Greenfield:
  2. More Thoughts on the Utah Tasering Video:
  3. Officer Tasers Man During Traffic Stop -- Reasonable Use of Force or Not?:
[Kingsley Browne, guest-blogging, December 7, 2007 at 5:15pm] Trackbacks
Co-ed Combat – Closing Thoughts:

I would like to thank Eugene again for inviting me to guest-blog and the readers who have provided thoughtful comments.

In these posts, I have touched upon some of the problems created by sexual integration of combat forces. There are many others that I cover in my book, including the tendency of men to protect women; the double standards often applied to women, which probably result, at least in part, from this same male protective impulse; the disruptive effect of sexual relationships and sexual attraction on group cohesion; and issues relating to female prisoners of war.

A common response to the issues that I raise here and in my book is that, yes, these are problems but they can be worked around; the military will “manage” these challenges with more leadership, more training, and more discipline. One could as easily say, however, that during the Battle of the Bulge GIs “managed” one of the coldest winters on record even with the challenge of inadequate clothing. But clearly both the soldiers and the war effort would have been better off if they had not been compelled to manage that particular challenge.

In deciding on rules about combat integration, the ultimate question can’t be how to maximize women’s opportunities. Instead, it has to be how to maximize the military’s power to defeat the enemy. Clausewitz wrote that “everything in war is very simple, but the simplest thing is difficult.” Mixing the sexes together in an integrated combat force adds substantially to what he described as the “friction” of war. The combat environment is difficult enough; we do no one any favors by making it even more so.

[Kingsley Browne, guest-blogging, December 7, 2007 at 4:56pm] Trackbacks
Co-ed Combat – Responses to Comments:

In my last post, I said that my next post would be my concluding one. However, I thought that it might be worthwhile separately addressing a few recurring points from the comments.

THE RACE ANALOGY: Several commenters suggested that the arguments made in my posts are illegitimate if they would be unacceptable if “race” were substituted for “sex.” Acceptance of that argument would lead to the conclusion that the Women’s National Basketball Association, sex-segregated bathrooms, and women’s colleges are examples of apartheid.

The fact is that race and sex are different as categories. Although both of them have underlying biological bases, racial segregation in the military had nothing to do with the biology of race and everything to do with the social meaning placed upon race. Despite arguments to the contrary, however, sex is not just a social construct, and sex differences relevant to military service exist irrespective of what we think about them.

THE INDIVIDUAL-TESTING ARGUMENT: Several comments suggested that everyone should be given the same tests and any individual who can satisfy them – irrespective of sex – should be able to join. While that approach could work with strength, as I pointed out in one of my early posts, it works less well for psychological attributes. Moreover, some of the concerns about women in combat arise from the mere fact of women’s “femaleness” as opposed to any particular individual traits.

Few people seem to be incensed by the military’s use of age restrictions. If you are over 27 and try to join the Marines or Air Force, or if you are over 35 and try to join the Navy, or if you are over 42 and try to join the Army, you are extremely unlikely to be successful. Yet the same individualistic arguments can be made about people who are over the age limit as can be made about sex. After all, some people who are too old for enlistment no doubt would be more valuable to the military than some younger people whom the military would be happy to have. Of course, this could just mean that the age restrictions are ill-advised, too.

CITATION TO AUTHORITY: A number of people expressed regret (or more) that I did not cite authority for assertions in these posts. When I started writing my entries, I had to make a judgment about whether to cite to the relevant literature. I decided, for better or worse, not to, for a variety of reasons. First, assuming that I did not provide authority for every assertion, there was the difficulty in drawing the line between assertions for which I would provide authority and those for which I would not. Second, not all (or perhaps even most) readers of blogs expect or want to read heavily sourced, academic style writings, and I assumed that people seriously interested in the underlying research would go to my book (and, of course, I hoped that they would buy it for themselves, as well as for everyone on their Christmas card list).

Perhaps the most fundamental reason for not citing to the relevant literature is that a one-sentence assertion in a blog post might be summarizing several pages of my book, which in turn might be citing numerous authorities. To give one example, in my post on cohesion and trust I stated: “Formation of, and functioning in, large cohesive groups is easier for men than for women, and men are more accepting of hierarchy than women are.” I was criticized for “bald assertion” in making this point, and, of course, the assertion was “bald,” if that means that I cited no authority for it. However, that one sentence summarized about five pages from my book that contained nineteen footnotes that cited to over twenty separate sources, most from the psychological literature. That does not mean that my inferences and conclusions are correct, of course, but it does mean that I didn’t make them up out of whole cloth.

SCOTUS Takes Another GWOT Habeas Case: SCOTUSblog reports:
The Supreme Court agreed on Friday to rule on claims by two U.S. citizens being held by the U.S. military in Iraq that they have a right to challenge their detention there and future transfer to Iraqi authorities — one of them to be tried, the other to be executed for a prior Iraqi conviction. The cases, drawing the Court more deeply into defining the rights of detainees, will be heard together, probably in March. The cases are Munaf v. Geren (06-1666) and Geren v. Omar (07-394). The D.C. Circuit reached different results on the two; both, however, involve interpretation of the scope of the Court’s 1948 decision in Hirota v. MacArthur. That decision barred U.S. courts from ruling on overseas detention of Japanese nationals by U.S. military forces serving as part of a multi-national force.
[Kingsley Browne, guest-blogging, December 7, 2007 at 1:00pm] Trackbacks
Co-ed Combat -- Pregnancy and Single Motherhood

I’ve discussed so far a variety of differences between men and women that affect their relative aptitude for combat roles. Another distinction between men and women that has significant effects on military readiness is that only women can become pregnant.

Approximately ten percent of military women are pregnant at any one time. During the Gulf War, pregnancy was the leading cause of women’s being shipped back early to the United States. When the destroyer tender USS Acadia returned from an eight-month deployment during the Gulf War, thirty-six of the 360 women on board had been transferred off the ship because of pregnancy. The Acadia was the ship most prominently called “the Love Boat,” but it is just one of many that have had that label attached to them.

A comprehensive study for the Navy of female shipboard personnel found an overall pregnancy rate of 19 percent per year. The highest pregnancy rate (27 percent) was on submarine tenders, the class of ships with the largest percentage of women.

With the unprecedented use of female personnel in Iraq and Afghanistan, one would think that the services would like to know what their losses are from pregnancy. According to a spokesman for Central Command, however, “We’re definitely not tracking it.” A Pentagon spokeswoman said that the Army does release information on how many women choose to leave the service because of pregnancy but not information on those who leave the war theater, implying that the information is tracked, simply not released. Only “general numbers” are released, she said, “to protect the rights of women, soldiers and the organization,” although it is not clear how anyone’s “rights” would be infringed by release of statistical information about pregnancy losses.

When it comes time to deploy, women fail to do so at three to four times the rate for men, the difference being largely due to pregnancy. Once a soldier is confirmed to be pregnant she becomes ‘non-deployable’ and will remain so for up to a year. After deployment, many women must be sent back home because of pregnancy.

A Navy study found that a quarter of women (compared with a tenth of men) were lost from ships for unplanned reasons. Large numbers of military pregnancies that are carried to term are unplanned (over 60 percent of those among junior enlisted personnel).

Pregnancy in the later stages means total absence of the woman – who may or may not be replaced – but even in the earlier stages it results in substantial limitations on a woman’s ability to contribute to her unit. One Army MOS in which there are many women is “fueler.” Fuelers are responsible for fueling vehicles and are critical to their units. Unfortunately, however, female fuelers are medically restricted from working in that job because of chemical exposure from the date their pregnancy is diagnosed. As the Army was preparing for Operation Iraqi Freedom, it had to impose a cap on the number of deployed women who could be allocated to that MOS, and it had to move men from other specialties into the fueler job, creating shortages elsewhere.

Women cannot serve at sea after their twentieth week of pregnancy, and even before that they must be removed from ships unless they are within six hours of a facility “capable of evaluating and stabilizing obstetric emergencies.” After giving birth, mothers are excused from sea duty for a year.

Women’s ability to avoid deployment by becoming pregnant is a constant source of resentment among men. Intentionally injuring oneself to avoid deployment is a court-martial offense; intentionally becoming pregnant to avoid deployment brings no penalty at all, nor does becoming pregnant to avoid deployment, missing the deployment, and then aborting the pregnancy – a pattern that creates even intensified resentment. This latter phenomenon is almost certainly something that the military does not track, so it is hard to know how widespread it is, but while I was researching my book, several people (all Navy officers) spontaneously mentioned it to me.

Single parenthood is also a much greater problem among women than men. Although in raw numbers there are more single fathers than single mothers (because of the overwhelming disproportion of men in the military), the proportion of women who are single parents is much higher.

Comparison of the numbers of single mothers and fathers is meaningful only if “single parenthood” means the same thing for mothers and fathers, whereas it clearly does not. A Navy survey that inquired into the nature of custody arrangements found that 76 percent of single mothers had sole custody of the child, whereas only 16 percent of men did. While only 8 percent of single mothers had “joint custody (less than half the time),” 63 percent of fathers did. These are very different parental patterns, and they have substantially different effects on deployability – differences that are obscured by simply labeling the involved personnel “single parents.”

The military recognizes the incompatibility of single parenthood and military service. Army regulations, for example, bar single parents from enlisting, stating that “the Army’s mission and unit readiness are not consistent with being a sole parent.” The problem comes about when individuals already in the service become single parents. Single parents are required to file “Family Care Plans,” identifying someone who will be able to take over parental responsibilities in the event of deployment, but if that arrangement falls through — or if the requirement is not complied with — then there can be a significant problem.

During the Gulf War, a number of military women with young children were transferred back to the United States because of the stress of being away from their children. Because of the longer deployments involved in the current conflicts, one doubts that this is a lesser problem today. Reliable data are not available (and perhaps do not exist), however, as the military has an obviously strong interest in not widely advertising the possibility of the return home for parents who miss their children.

My next post will be my last, and I will provide a few closing thoughts.

Reaction to the Recent Subprime Market Rate Freeze: The housing market is generally David's corner, but I thought this article on the reaction to the recent agreement to freeze certain subprime loan interest rates was worth pointing out. An excerpt:
  Politicians need to appeal not only to people at risk of losing their homes but also to those such as Ben Sullivan, who sees the agreement as a undeserved bailout. After the 2001 technology stock bust, many people lost significant value in their retirement plans, Sullivan said. "No one was offering to pay for their 401(k) losses. Why should they do it for their housing losses?" said the 28-year-old commercial banker.
  Sullivan lived in the District for years and watched as his friends flipped condominiums and investment properties. "I think we shouldn't be bailing out the homeowners that got greedy buying homes they couldn't afford," said Sullivan, who moved to Atlanta nine months ago.
Where Are Islam's Silent Moderates?

Ayaan Hirsi Ali has a powerful op-ed in today's NYT lamenting the lack of public outrage within the Muslim community over clear injustices within the Muslim world.

It is often said that Islam has been “hijacked” by a small extremist group of radical fundamentalists. The vast majority of Muslims are said to be moderates.

But where are the moderates? Where are the Muslim voices raised over the terrible injustice of incidents like these? How many Muslims are willing to stand up and say, in the case of the girl from Qatif, that this manner of justice is appalling, brutal and bigoted — and that no matter who said it was the right thing to do, and how long ago it was said, this should no longer be done?

Usually, Muslim groups like the Organization of the Islamic Conference are quick to defend any affront to the image of Islam. The organization, which represents 57 Muslim states, sent four ambassadors to the leader of my political party in the Netherlands asking him to expel me from Parliament after I gave a newspaper interview in 2003 noting that by Western standards some of the Prophet Muhammad’s behavior would be unconscionable. A few years later, Muslim ambassadors to Denmark protested the cartoons of Muhammad and demanded that their perpetrators be prosecuted.

But while the incidents in Saudi Arabia, Sudan and India have done more to damage the image of Islamic justice than a dozen cartoons depicting the Prophet Muhammad, the organizations that lined up to protest the hideous Danish offense to Islam are quiet now. . . .

When a “moderate” Muslim’s sense of compassion and conscience collides with matters prescribed by Allah, he should choose compassion. Unless that happens much more widely, a moderate Islam will remain wishful thinking.

Related Posts (on one page):

  1. Saudi Prince Pardons Rape Victim:
  2. Where Are Islam's Silent Moderates?
  3. Justice, Saudi Style:
Fired Creationist Sues Woods Hole:

The Boston Globe reports that Nathaniel Abraham is suing the Woods Hole Oceanographic Institution, alleging he was fired for his creationist beliefs. From what the Globe reports, it appears Abraham claims Woods Hole discriminated against him for his religious beliefs. Woods Hole allegedly fired Abraham, a biologist, after he refused to work on "evolutionary aspects" of an NIH research grant the institution received.

The lawsuit is the latest in a series of cases pitting creationists against scientists in academic settings. Last year, a University of Rhode Island student was awarded a doctorate in geosciences despite opposition after it became known that he was a creationist. Earlier this year, an Iowa State University astronomer claimed he was denied tenure because he did not believe in evolution.

Like these cases, the Abraham lawsuit pointedly raises the question: Can people work in a scientific field if they don't believe in its basic tenets?

"I have a cleaning woman who is a Seventh-day Adventist and neither of us feel any tension," said Michael Ruse, a philosopher of science at Florida State University who has written extensively on creationism and evolutionary biology. "Yet, what is a person doing in an evolutionary lab when they don't believe in evolution . . . and didn't tell anybody they didn't believe in evolution?" . . .

Eugenie C. Scott, executive director for the National Center for Science Education, which defends the teaching of evolution in public schools, said Abraham was clearly being disingenuous when he applied for the job because he was hired to work in the field of developmental biology.

"It is inconceivable that someone working in developmental biology at a major research institution would not be expected to deal intimately with evolution," she said. "A flight school hiring instructors wouldn't ask whether they accepted that the earth was spherical; they would assume it. Similarly, Woods Hole would have assumed that someone hired to work in developmental biology would accept that evolution occurred. It's part and parcel of the science these days."

I am not an expert in the law of religious discrimination, but it seems to me that even insofar as Abraham's views are protected from discrimination, belief in evolutionary theory would be a bona fide qualification for the specific research position he had at Woods Hole.

UPDATE: A reader forwarded a copy of the complaint. I've posted it here.


Thursday, December 6, 2007

Law to Punish Parents For Hosting Underage Drinking Leads To More Drinking When Parents Away: Story here. The cause and effect is speculative, but that's pretty much what I would have guessed.
How Bad is the Housing Slump out West? This Bad:

"The number of contracts [for new homes] signed in the fourth quarter fell the most in [luxury homebuilder] Tolls West region of Arizona, California, Colorado and Nevada, where orders tumbled 87 percent."

And, judging from its stock's performance, Toll is perceived to be one of the healthier builders.

Now that I'm a homeowner no "you're just a bitter renter" comments, okay? I can't say that owning a home has made me any more sanguine about the housing market's near-term prospects.

States Seek Airline Emission Limits:

Several states and environmental groups petitioned the U.S. Environmental Protection Agency seeking regulation of greenhouse gas emissions from the aviation industry. European nations have also sought to impose such limits. As the NYT reports, the industry already has substantial incentive to reduce its fuel use.

The petitioners suggested several steps to curb emissions, including the use of lighter and more efficient planes and the adoption of flight techniques that require less fuel. The aviation industry is already pursuing some such measures, because it is desperate to reduce its fuel costs. And the less fuel burned, the less greenhouse gas results.

“We have been as green as green can be,” said David Castelveter, a spokesman for the Air Transport Association, the trade group of the big carriers.

Mr. Castelveter said that his industry was not troubled by the E.P.A.’s looking into the issue and that efficiency had risen sharply over the last seven years. Among other steps, the airlines are matching passenger load to the number of seats, with the result that they are often flying smaller planes.

The petitions also suggest using alternative jet fuels. That idea is in its infancy, but Japanese researchers are pursuing fuels that can be made from plants instead of oil.

The article further notes that some ways of increasing airplane fuel efficiency can increase airport capacity, potentially increasing the overall amount of air travel and aggregate emissions.

For more on the issue, and links to the petitions, see here.

"The Real Problem With Law Teaching Fellowships": Mike Madison weighs in on that question at And don't miss the comments, by Mark McKenna, Matthew Sag, and Michael Risch.
The Fourth Amendment Comes Out At Night, Minnesota Supreme Court Holds: Today the Minnesota Supreme Court held in State v. Jackson that the police violate the Fourth Amendment if they execute a search warrant at night without getting special permission based on a request with specific facts to execute the search at night. (See also the related case handed down today, State v. Jordan.) I don't think I've ever seen anything quite like this. [See update at the end of the post; it turns out there is at least some authority in this direction, even if no court has taken it this far.] The hour of execution of a search is generally left to statute, and the few constitutional cases on this issue involve warrants that specify on their face that they must be executed in the day but are instead executed at night. In this case, by contrast, the warrant specifically authorized a search at night. After the Supreme Court's decision in United States v. Grubbs, the Court's approach strikes me as pretty far out of step with Fourth Amendment caselaw.

  The basic reasoning of the case is that there is a "period of nighttime repose" at which time there are special interests to be protected inside the home that a normal search warrant does not address:
We believe that at certain times it will be readily apparent what is protected during this period of nighttime repose. For example, if the police search an unlit home at 3 a.m. without proper nighttime authorization, they run considerable risk of violating the occupants’ interest in being free from intrusion during a nighttime period of repose. But if the police search a home at 8:30 p.m. on the summer solstice when the doors are open and a party is underway at a home, they are much less likely to run the risk of seriously violating the occupants’ interest in being free from such intrusion. These examples illustrate a key aspect that we recognize and acknowledge about the interest we have articulated, especially at its beginning and end. This definition is a bit nebulous and necessarily encompasses what Justice Robert Jackson might refer to as a “zone of twilight,” within which the right to protection is less certain and will depend “on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
  The Court concludes that in this case, the search warrant was executed during the aforementioned "period of nighttime repose":
Having previously defined the interests that the limitation on nighttime searches is designed to protect, we now examine the facts of this case to determine if Jackson’s constitutional rights were violated. The police entered Jackson’s home at 9:25 p.m. on December 11 when it would have been dark for several hours. The record does not indicate that the police had any specific information about what was going on in the home before entering it at nighttime. Further, . . . we conclude that the nighttime entry into Jackson’s home cannot be rendered constitutionally sound by the fact that the police happened to find Jackson and her children awake, fully clothed, and sitting at the kitchen table upon entering the home. Therefore, we conclude that the police violated Jackson’s right to be free from unreasonable searches and seizures guaranteed by the United States Constitution when, without information indicating that Jackson had not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the wintertime—December 11—with a search warrant that invalidly authorized a nighttime entry. In reaching this conclusion we need not decide the exact time when Jackson’s constitutionally protected period of nighttime repose began and ended. Rather, we need only conclude that the search of her home fell within the protected time period.
  I find this reasoning extremely weak. I don't think I've ever come across cases suggesting that there is a special constitutional rule for nighttime searches beyond probable cause and particularity. The federal circuit court cases the Court mentions dealt with daytime warrrants executed at night; the Fourth Amendment defect was that the warrants by their terms prohibited the nighttime entry. This case is different, as the warrant itself authorized nighttime entry. Further, it's interesting to note by comparison that the Federal Rule 41 that governs search warrants defines the "day time" for executing search warrants as 6:00 am to 10:00 pm, see Rule 41(a)(2)(B). In the federal system, then, this warrant would have been deemed executed in the day time rather than at night. (Minnesota has a different definition; the statute defines the daytime as being from 7am to 8pm.).

  More broadly, I find it hard to believe that there is some sort of free floating "period of nighttime repose" doctrine out there that the Minnesota court has discovered that makes searches problematic based on a test the Court seems unable to define. As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law, I find it hard to believe that the U.S. Supreme Court would go along with this new approach. The Minnesota court was of course free to construe the Minnesota warrant statute to require this result, as it did here. But going out on a limb and adding the federal constitutional holding was pretty clearly unwarranted (pun intended).

  Anyway, there's a possible "adequate and independent state ground" (AISG) problem that might interfere with Supreme Court review: The Minnesota court also based its ruling on the Minnesota warrant statute, and although it looks like it's a dependent claim (the arguments for the two are essentially identical), that's a possible reason the Supreme Court might not take the case. If the Supreme Court can get its hands on the Fourth Amendment part, however, I would expect them to be interested in the case.

  Thanks to Ted Sampsell-Jones for the link.

  :UPDATE: Further research and some helpful comments indicate that there is authority suggesting that the timing of the search is relevant to its reasonableness; there is also a dissent by Thurgood Marshall (joined by Brennan and Douglas) suggesting in dicta that a rule something like what the Minnesota court creates would be a good idea. On the other hand, the Minnesota court seems to be the first to haven taken the ball and run with it; it's also in direct tension with what federal courts have done, and in particular with Fourth Circuit's decision in United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006).
Federal Court Deference to Lower Court Determinations of State Law: Here's a legal puzzle for you. The Supreme Court often says that when an issue of state law arises, the Supreme Court should generally defer to the construction of the state law held by the circuit court that includes the state. We saw this most recently in the pledge of allegiance case, Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 16 (2004), where the Court stated that "[o]ur custom on questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the Circuit in which the State is located."

  The Supreme Court has based this rule on institutional competence concerns: circuit court judges are more likely to know and understand state law of local states than are Supreme Court Justices over in Washington, DC. See, e.g., Propper v. Clark, 337 U.S. 472, 486-487 (1949)("In dealing with issues of state law that enter into judgments of federal courts, we are hesitant to overrule decisions by federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable.").

  So far, so good. But now add in Salve Regina College v. Russell, 499 U.S. 22 (1991), a case on whether circuit courts should defer to district court interpretations of state law. In Russell, the Supreme Court held that circuit courts must not defer to district court determinations of state law; review must be de novo. The Supreme Court reasoned that trial judges have little time to give each case, while circuit courts are staffed by legal eagles who are really good at legal research, federal or state. The Court rejected the notion that district court judges from a state are more likely to understand state law than the appellate judges, who usually won't be from that state. The Court found this argument "to be founded fatally on overbroad generalizations":
[T]he bases of state law are as equally communicable to the appellate judges as they are to the district judge. To the extent that the available state law on a controlling issue is so unsettled as to admit of no reasoned divination, we can see no sense in which a district judge's prior exposure or nonexposure to the state judiciary can be said to facilitate the rule of reason.
The Court also added a constitutional argument, that the position was foreclosed by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

  So here's the question: Can you reconcile these two lines of cases? If so, how? Why should the Supreme Court defer to Circuit Courts but Circuit Courts not defer to District Courts? (Oh, and no, I'm not writing on this — I'm just curious.)
[Kingsley Browne, guest-blogging, December 6, 2007 at 2:50pm] Trackbacks
Co-ed Combat – Cohesion and Trust:

It is a truism that individuals don’t fight wars; groups do. That’s one reason that the Army’s “Army of One” campaign was so controversial. A group can be more or less than the sum of its parts, and the way members of groups interact can be at least as important as the traits of individual group members.

The importance of cohesion to military performance has long been recognized by authorities on warfare. Formation of, and functioning in, large cohesive groups is easier for men than for women, and men are more accepting of hierarchy than women are. Also, injection of women into male groups can undermine the cohesion and cooperation that is necessary to the group’s functioning. Sexual competition plays a large role, but it is not the only reason.

A number of studies have found that including women in military groups can adversely affect cohesion. Although in studies of troops in garrison women often are found to have a positive effect on cohesion, in field and deployment settings the effect tends to be negative, and the greater the danger, the greater the negative impact of women’s presence. Psychologist Leora Rosen found, for example, that the presence of women deployed in Somalia, where risk was relatively high, had more negative effects than in Haiti, where the risk was quite low.

One of the principal reasons for women’s adverse impact on cohesion is that men find it difficult to trust women in dangerous situations, no matter how much they might like and respect women generally. This is true of soldiers, police officers, and firefighters. Not only are men concerned that women will not be able to drag them out of danger if the need arises, but also that women will be insufficiently aggressive in the event of conflict.

Trust is the most important value to all kinds of groups – even ones not facing danger. Danger enhances the importance of trust, so that it is particularly important to cohesive combat groups.

The decision to trust is “fast and shallow.” That is, we don’t generally agonize about whether to trust somebody – instead, it comes to us fairly quickly based upon rules of thumb that we are largely unaware of. In that respect, it is much like sexual attraction: basically, you feel it or you don’t. Trust can wax or wane depending upon experience, but it is very difficult to overcome an initial lack of trust. Reasoned arguments about why you should trust somebody who strikes you intuitively as untrustworthy are not likely to be very effective.

To explain why men’s reluctance to trust women may be intractable, it is useful to analogize to men’s preferences in selecting mates. Psychologists have shown consistent patterns of male mate preferences, with men tending to place a premium on youth and beauty, which have been indicators of fertility over evolutionary time. This preference is found cross-culturally and is stable over time. Men having such a preference would have been at a reproductive advantage over men who found grey hair and wrinkles the ultimate turn-on.

Mating is not the only kind of association that would have had substantial fitness consequences over evolutionary time. Men’s choice of comrades for warfare and hunting would also have been highly consequential in our ancestral environment because of the danger involved and the dependence of individuals on their comrades. If so, then one would expect that men today might possess innate preferences for certain kinds of comrades for dangerous enterprises, and these would be comrades who display the traits that would have been markers of effective fighters in our past.

Certainly, we see such preferences acted out. Even in childhood, the farther boys roam from home, the stronger their preference for same-sex comrades. Men prefer friends who are physical risk-takers, and, as men face danger, their preference for all-male groups increases. Men tend to pick up on cues that would have been associated with combat effectiveness in the past (and in the present as well) – courage, strength, dominance, leadership – in short, masculinity.

A study of Korean War soldiers found that “masculinity” and “leadership” were the two most important traits of soldiers who were judged to be effective fighters. A related study found that men who had been rated as being effective fighters were independently rated by other soldiers as desirable combat comrades after a week’s exposure to each other, even though the men’s combat histories were not disclosed.

If men are innately predisposed toward trusting certain kinds of comrades, it may be extremely difficult – if not impossible – for women to trigger that trust in men. This effect would prevail even if warfare actually had changed so much that the traditional warrior virtues are no longer relevant.

In making gut-level decisions, the human mind tends to be attentive to the kinds of information available to us in our ancestral environment. So, good grades at a military academy or high scores on a personality test would be unlikely to engender trust even if they were in fact correlated with combat performance, in the same way that a woman’s appearance will be more important to the strength of a man’s sexual attraction to her than a certificate of fertility from a medical specialist. Intuitive judgments are not easy to change with reasoned argument.

Thus, there is reason to believe that some impediments to effective sexual integration are, in a sense, “hard-wired” into us. If so, the resistance of combat troops to sexual integration is not something that they are going to “grow out of.”

A recent survey at the Air Force Academy supports this view. A full 40 percent of cadets, both male and female, expressed the view that women will never be completely accepted in the military because of the physical and psychological differences between the sexes. Twenty percent of male cadets said that women shouldn’t even be at the Academy, which has been sexually integrated for over three decades. And, it might be noted, the Air Force is the service with the highest proportion of women.

Some respond to this line of argument by contending that a tendency of men not to trust women is “men’s problem,” not women’s. The issue is not, however, whose “fault” it is (and it is not clear that the concept of fault is even relevant here). Instead, the point is that this lack of trust – whatever its source – poses a risk to the effectiveness of military units. Thus, the lack of trust is a problem for both men and women, as well as for the military (and the nation) as a whole.

In addition to its effects on unit cohesion, sexual integration creates a number of manpower challenges, among them being the effects of pregnancy and motherhood, which are the subjects of my next post.

Petition for Certiorari in Pearson v. Callahan and the Fourth Amendment "Consent Once Removed" Doctrine: I am pleased to announce the filing of a new cert petition, Pearson v. Callahan, a matter I have worked on over the last few months. The Tenth Circuit decision below is Callahan v. Millard County. The Tenth Circuit's opinion is also attached to the petition along with the district court decision by then-Judge (now Professor) Paul Cassell.

  The cert petition concerns the "consent once removed" exception to the Fourth Amendment warrant requirement that has developed in the lower courts. According to the lower courts, this doctrine authorizes police to make a warrantless entry into a home when an undercover agent who has gained entry into the home by consent establishes probable cause to make an arrest inside and then invites the other officers to enter. (The doctrine is called "consent once removed" because a resident of the home consents to the first entry and then the invitee consents to the second entry.)

  Circuit courts have divided on this exception in the important case when the undercover is a confidential informant. The Sixth and Seventh Circuits have held that the doctrine applies and the warrantless entry is constitutional. The Tenth Circuit below disagreed with those circuits, concluding it does not apply and that the warrantless entry violates the Fourth Amendment. The Supreme Court has never addressed the "consent once removed" exception, and the petition seeks Supreme Court review to settle the issue in light of the lower court split.

  As this case involves pending litigation, I'll keep comments closed. Of course, those interested in the case are free to e-mail me at my account.
Why Flu Season Occurs in the Winter: The New York Times has the story here, summarizing the findings of this journal article (.pdf). Very cool.
Must Our Next President Be Scientifically Literate?

Laurence Krauss, a noted physicist at Case Western Reserve University, argues in today's WSJ that the next President must be scientifically literate, a standard some candidates could not meet.

Almost all of the major challenges we will face as a nation in this new century, from the environment, national security and economic competitiveness to energy strategies, have a scientific or technological basis. Can a president who is not comfortable thinking about science hope to lead instead of follow? Earlier Republican debates underscored this problem. In May, when candidates were asked if they believed in the theory of evolution, three candidates said no. In the next debate Mike Huckabee explained that he was running for president of the U.S., not writing the curriculum for an eighth-grade science book, and therefore the issue was unimportant.

Apparently many Americans agreed with him, according to polls taken shortly after the debate. But lack of interest in the scientific literacy of our next president does not mean that the issue is irrelevant. Popular ambivalence may rather reflect the fact that most Americans are scientifically illiterate. A 2006 National Science Foundation survey found that 25% of Americans did not know the earth goes around the sun.

Our president will thus have to act in part as an "educator in chief" as well as commander in chief. Someone who is not scientifically literate will find it difficult to fill this role. . . .

Even if the American public is not currently focused on these concerns, decisions made by the next U.S. president on issues such as climate change, energy research, stem cells and nuclear proliferation will have a global impact. We owe it to the next generation to take ownership of these issues now. In spite of the ambivalence reflected in some polls, there is a popular understanding that science and technology will be essential to meet the challenges we face as a society. When reports began to surface warning that the avian flu might become a threat to humans, for example, everyone from the president down called for studies to determine how quickly the virus might mutate from birds to human beings. No one suggested that "intelligent design," for example, could provide answers.

Krauss has joined with a group of prominent scientists calling for a presidential debate focused on science and technology issues, ScienceDebate2008.

Krauss' article does not make the erroneous claim that science "answers" pressing policy questions, a mistake others make (see here and here). Rather, he is arguing that scientific literacy is necessary to understand certain policy challenges, evaluate options, and develop solutions. A scientifically literate and technologically capable workforce is also important for American competitiveness. Whether a science-focused debate is necessary, the next administration should be comfortable consulting scientific expertise and recognizing the valuable role science can play in the development of public policy.


Wednesday, December 5, 2007

[Kingsley Browne, guest-blogging, December 5, 2007 at 9:18pm] Trackbacks
Co-ed Combat -- Combat Motivation:

With Eugene’s assistance, I have attempted to link all of these related posts together. We’ll see if I have been successful.

My last post discussed some average psychological differences between the sexes. This post will discuss potential effects of these and other differences.

The “free rider” problem is potentially huge in combat. It is entirely rational from a selfish perspective for a soldier to keep his head down out of the belief that any minuscule effect that his battlefield actions might have on the outcome of the battle is far outweighed by the potential loss of his life. What really needs to be explained is not the fact that there are free riders but rather that there are so few of them. The explanation lies, in part, in the fears and motivations of soldiers.

Men going into combat for the first time face an array of fears. Among them, of course, are the fear of being killed or seriously injured. Some commentators have also identified a fear of killing, although it’s not clear that “fear” is the proper word to describe the reluctance to kill often exhibited by western soldiers.

These fears – fear of death, fear of injury, and fear (or at least reluctance) to kill – are negatively motivating, and they are likely to affect men and women differently. Women’s greater fear of death and injury and greater aversion to physical risks are likely to affect their combat performance negatively. Just being in a war zone is considerably more stressful to women than to men. A study of male and female support troops in the Gulf War, none of whom had seen combat, found that women reported significantly more psychological stress than men, especially stress in anticipation of combat.

Empathy also has negative effects, as it not only engenders a reluctance to kill but is also associated with greater guilt for having killed. Some reports coming back from Iraq suggest that women are suffering higher levels, and a more severe form, of PTSD than men are.

Perhaps surprisingly, fear of injury and of death are not the greatest fears that soldiers face going into battle (especially for the first time). A recurrent feature of military memoirs is that fear of cowardice dwarfed the fear of injury and death. As Samuel Stouffer’s study of the American soldier in World War II found, showing cowardice in battle brought not just censure for cowardice itself; even more powerfully, “to fail to measure up as a soldier in courage and endurance was to risk the charge of not being a man.” The fear of not measuring up as a man is highly motivating, but it is not one that motivates women.

In thinking about the relative suitability of the sexes for combat, one might think about real-life situations in which individuals have a choice whether to engage in activities that involve a combination of relevant traits – such as fear, risk-taking, and physical aggressiveness. For example, who are the people who foil robberies, chase down purse snatchers and carjackers, and rescue others from criminal assaults? The answer is that these people are overwhelmingly men.

Combat Courage and “Defining Bravery Down”

If one of the primary motivators of men in combat is the need to prove their manhood and the need to maintain the respect of their comrades, one must ask what motivates women in combat? Surely, it is not the need to prove their manhood (or their womanhood, for that matter). As for respect of their comrades, women can maintain it at a much lower level of courage than men can, a fact that has substantial implications for the level of combat courage that one might expect to see from both women and men.

Aristotle wrote that “a man would be thought a coward if he had no more courage than a courageous woman.” That may seem a gratuitously chauvinistic comment, but it captures an important truth. How often does one even hear of a woman referred to as a coward? The dictionary defines “cowardice” as “disgraceful fear or timidity.” We do not decline to label women cowards because women do not display fear or timidity. Instead, we do so because we do not find women’s fear or timidity disgraceful in settings in which we would see disgrace in men.

Because of the strong norms of equality in combat groups, if lesser courage is expected – or at least accepted – from women, that fact is likely to define bravery down for all. In his book “Hero or Coward,” German military analyst Elmar Dinter observed:

We should never forget that the average soldier would really like to run away from the fighting. The group prevents him from doing this. If group morality allows for an “honourable” means of flight, it will be accepted gratefully.

Exactly this dynamic may have been in play in 2004 when a mixed-sex platoon of reservists refused a direct order to drive a fuel convoy, although the Army’s reticence about the incident compels one to rely on (perhaps unfair) speculation. The reservists argued that it was a “suicide mission” because their trucks were not armored. News reports did not indicate who the ringleaders of the mutiny were, although it came to light when a female specialist left a message on her mother’s voice mail asking her to “raise pure hell.”

One could easily see how the sex composition of the group could have contributed to the incident. Expressions of unwillingness by female soldiers would give cover to the men to go along. By supporting the women who did not want to take on the mission (if that is what happened), the male soldiers could convert in their minds a cowardly refusal to take on a dangerous mission into a brave – even honorable – willingness to accept discipline to “protect” the women. The mission may be aborted, but honor within the group would be preserved.

Even if women actually were as courageous as men, they are not expected to be. That lower expectation of their courage – irrespective of their actual levels of courage – would almost inevitably result in reduced combat performance.

My next post will discuss the effect of sexual integration on cohesion and trust.

Enviros Challenge Wind Farms in Texas:

A coalition of environmental groups is suing the Texas Land Commission and Public Utility Commission in an effort to stall two wind developments in the state.

The lawsuits threaten to delay or stop the two massive wind projects, which could place more than 600 turbines on 60,000 acres near Laguna Madre, south of Corpus Christi. . . .

The federal suit, filed in U.S. Western District Court in Austin, said the turbines could kill untold numbers of migratory birds and damage the bay. It seeks to overturn the decision by the Texas General Land office, which Patterson heads, to allow the projects to be built without environmental review or input from the public. The suit contends that the Federal Coastal Zone Management Act of 1972 and the Texas Coastal Management Program require a permit process for any energy generation facility on the coast, including wind farms.

Robert H. Jackson on Learned and Augustus Hand: Justice Robert Jackson and Judge Learned Hand are probably my two favorite judges, so I was particularly interested to see that Justice Jackson once gave a speech in 1951 on what made Learned Hand and his cousin Augustus Hand so outstanding. From the speech:
  I think that their attitude to the law and to the judicial office has been much more important than any cases they have decided or any opinions they have written. These men love the law. They were bred in that family tradition in Upstate New York, a geographical fact that I do not think should be held against them. Love of the law led them to Harvard — another thing I would not hold against them. But Harvard did not make the Hands. It is men like the Hands who have made Harvard. They believed in the law. That does not mean that they thought everything that happened to be law is right or enduring. They have not regarded it as a closed body of learning. But they believed in the law as the foundation of the whole structure of an ordered and free society.
  These men found their highest satisfaction in judicial work. It fulfilled their every ambition. They put all they had into it — they have not shirked even its drudgery. They wrote their opinions with no appeal for applause and sought only to merit the ultimate approval of their profession. They have not been looking over their shoulders to see whom they please. They have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one — the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.
  Good stuff. Of course, if Justice Jackson had blogged these thoughts today, he would have triggered a 150-comment thread questioning what he really meant about judges being like umpires, and whether that was really any sort of "test."

  Thanks to reader Constitutional Crisis for the link.
[Kingsley Browne, guest-blogging, December 5, 2007 at 5:10pm] Trackbacks
Co-ed Combat – Some Responses to Comments:

Many of the issues raised in the comments were thoroughly explored in the give-and-take there, so I will respond only to a few comments.

Several comments dealt with the issue of endurance, and it is an important one. One commenter cited a study purporting to show a female advantage at ultra-long distances. I do not have a copy of the article cited (my university’s electronic subscription to that journal begins in 1998), but the abstract indicates that men and women were matched for “56 km race time, age and training.” But matching for speed and training (presumably meaning aerobic capacity) means that the most fit women would be compared against less fit men. That is, if you take the top woman in terms of speed and aerobic capacity, you would compare her not to the top man but rather to a man who had the same speed and aerobic capacity as the top woman, who would generally be quite a distance from the top man.

The difference between being able to perform a task and being able to perform it over and over again (someone mentioned repeated combat sorties) can be very important in combat. That is the reason that women in the Israeli Defense Force are not eligible for combat assignments in the Armored Corps even though they do serve as tank instructors. Experience showed that the women could not load shells over sustained periods of time, which they do not have to do as instructors but may have to do in combat.

Several commenters remarked on the story about strength and the EP-3E pilot’s experience over the South China Sea. The point of that story was not that all military planes present equivalent strength demands but that strength demands can crop up when things go wrong, even if a job does not require strength when things go right (which is the same point made about the USS Samuel B. Roberts). Moreover, no matter how high-tech the aircraft, once you are shot down, you are essentially an under-armed infantryman whose obligations are to survive (and assist fellow crew members in doing so, perhaps by dragging them from the wreckage), evade pursuers, resist potential captors, and escape from captivity. The harrowing stories of many shot-down pilots suggest that physical fitness and strength can make the difference between freedom and captivity and between life and death.

The post concerning psychological sex differences drew very animated responses. Let me just say a little bit to clarify the point that I was making. When talking about physical sex differences, my point was that they are relatively easy to measure but there is not much overlap between the sexes. If that were the only issue raised by sexual integration, the sensible thing would be simply to provide sex-neutral tests of physical capacity and let the chips fall where they may – which would result in only a small number of women being deemed eligible for combat (and probably pressure for “gender-norming,” as well).

When talking about psychological sex differences related to combat, there is more overlap but these differences are also more difficult to measure. There are various psychological tests to measure such things as physical aggressiveness and risk-taking, and these tests routinely show substantial differences between men and women. Most authorities on combat behavior would agree that physical aggressiveness and willingness to take physical risks (not suicidal recklessness as some commenters suggested) are associated with combat effectiveness. If you look at settings in which differences in aggressiveness and risk-taking have real-life consequences – that is, when people are actually risking their lives, whether for heroic or criminal purposes – you see a much greater sex difference in actual behavior than is revealed by psychological testing.

Ideally, again, one would select just those individuals who have the mix of psychological traits that allows them to overcome fear in the face of mortal danger, to be willing to take the fight to the enemy if the mission demands it – risking their lives in the process – and to inflict lethal violence on the enemy when the situation calls for it. I’d be surprised to hear that anyone – even the most ardent supporter of sexual integration – believes that this description fits men and women equally.

That’s where the lack of predictability comes in. It is a staple of the combat-behavior literature that it is often a surprise who turns out to be an effective fighter (and who doesn’t). Because some people do very well in training but bomb out in actual combat, you can’t count on training to weed out those who won’t do well. If you believe that there is a substantially higher proportion of Xs in Group 1 than Group 2, but you cannot identify which ones are the Xs, it is rational to attempt to maximize the number of Xs by selecting from Group 1 rather than from Group 2.

One or more of the commenters made the valid point that women who want to serve in the combat arms are not going to be the “average woman.” That is true, but the men who serve in the combat arms are also not “average men.” There will be a selection bias operating in both groups, although no doubt the female combat volunteer would deviate more from the female average than the male combat volunteer would from the male average.

One of the problems with spreading my blog entries out over the course of a week is that it is tempting to conclude that each posting is claimed to present a sufficient reason – standing alone – to exclude women from combat. What I tried to do in my book, and what I hope to do with the posts on this blog taken as a whole, is to identify a number of difficulties presented by integration of women into combat roles. The ultimate question is whether the combined effect of these difficulties would predictably lead to a less-effective military.

Computer Crime Casebook Supplement: For readers who have (or may want) my Computer Crime Law casebook, I'm happy to announce that I have posted a free update to the casebook: Computer Crime Law 2008 Supplement (.pdf, 51 pgs). The update may also be of interest to those who don't have the book but are curious about recent cases in the field. Regular readers will be familiar with several of the cases, as I have mentioned a number of them here at the VC. (Oh, and I intentionally didn't mention every single recent decision; the idea was just to add the cases that have particular doctrinal or conceptual importance to the topics covered.)
Thoughts on the Oral Argument in Boumediene v. Bush: I just returned from this morning's oral argument in Boumediene v. Bush. Here are some thoughts on the argument and where the Court might go.

  Overall, I thought it was a frustrating argument. The problem, I think, is that 8 of the 9 Justices have already expressed a view on whether Guantanamo Bay is part of the United States for habeas purposes (5 yes, 3 no). So there wasn't much that was fresh to debate there. Then, once you get past that threshold question, you run into the uncertainty of knowing what to do next. It's easy for the Supreme Court to tell the D.C. Circuit that there habeas rights at Gitmo. But it's really hard to get into the adequacy of of the DC Circuit's proceedings when we don't really know what those proceedings are or what rights those proceedings might protect. Indeed, these were the prudential reasons why the Court initially lacked the needed four votes to grant cert.

  As a result of those difficulties, neither Waxman nor Clement seemed to get traction in their argument. There was a lot of individual venting by Justices with strong views. Justice Scalia took on Waxman, and Souter took on Clement, each Justice expressing their frustrations with the positions taken by the other side. But it wasn't clear if either of these exchanges were at all relevant to where the Court might go. (Waxman even made some subtle jokes about this, making clear that Scalia's questions expressed his concerns but not those shared by a majority of the Justices.)

  Justice Kennedy was unusually quiet. Justice Kennedy didn't say a word until Waxman's argument was about half over, and even then he didn't seem to take strong views on either side. He seemed to be most interested on what sort of proceedings would go on below in the D.C. Circuit or the District Court if the Supreme Court reversed; there was an interesting dicussion more generally around that same point in the argument about why the D.C. Circuit has been so unusually slow in deciding Guantanamo-related cases. But on the whole Justice Kennedy didn't seem particularly worked up about one side or the other.

  What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.

  UPDATE: You can now listen to the argument yourself via C-Span; Howard's post has the link. Also, Marty Lederman offers his quick take here.
[Kingsley Browne, guest-blogging, December 5, 2007 at 8:40am] Trackbacks
Co-ed Combat - Psychological Sex Differences:

Yesterday’s post dealt with physical differences between the sexes. It produced a lot of good comments that I will try to get to today or tomorrow. This morning’s post will look at a number of psychological differences. Although measurable sex differences in most psychological traits related to combat tend to be smaller than physical differences – so there is more overlap between the sexes – they are still substantial.

RISK PREFERENCE: From toddlerhood on, males have a greater preference than females for risk – especially, but not only, physical risk – a fact reflected in the substantially higher rate of accidental death among boys worldwide and the roughly twelve-fold sex difference in workplace deaths among adults in the U.S. A meta-analysis of 150 risk-taking studies covering subjects of all ages concluded that “males took risks even when it was clear that it was a bad idea,” while females “seemed to be disinclined to take risks even in fairly innocuous situations or when it was a good idea.”

FEAR LEVELS: Risk-taking and fear are intimately related, and females from infancy experience greater fear than males. Sex differences in fear and risk-perception have two components. Women are more likely to perceive risk in a situation than men are, and even when the sexes perceive the same level of risk, women have higher levels of fear.

Psychologist Anne Campbell has argued that sex differences in fear and risk-taking are a consequence of differences in selective pressures acting on the two sexes over evolutionary time. Women have stood to gain less than men from risk-taking, which among men is often related to reproductive competition. Moreover, women have more to lose in terms of reproductive fitness than men, because in primitive societies the death of the mother is a greater blow to the odds of a child’s survival than the death of a father. Indeed, the death of the mother often amounts to a death sentence for her children. Thus, Campbell argues, women’s minds have evolved to rate the costs of physical danger higher than men’s do.

PHYSICAL AGGRESSION AND DOMINANCE: As with risk-taking, sex differences in aggression and dominance appear early in development, being present from about two years of age. Among adults, the clearest evidence for sex differences comes from criminal activity, with men being incarcerated for violent offenses at a rate more than ten times that of women.

Men not only engage in more physical forms of attack, they also have more positive attitudes about aggression. They are more inclined to view it as an acceptable way of achieving one’s ends, and they experience less guilt and anxiety about having acted aggressively than women do.

NURTURANCE AND EMPATHY: Women score higher on most measures of empathy, which, to paraphrase a former president of the United States, consists of the ability to feel someone else’s pain. This greater empathy may be responsible for the heightened guilt and anxiety that women feel about acting aggressively.

The sexes also differ in the circumstances that attenuate empathy, as demonstrated by a recent study examining empathic responses with functional magnetic resonance imaging (fMRI) of the brain. Subjects watched two players playing a game, some players playing fairly and some unfairly. Players were then given electrical shocks.

When a player who had played fairly was shocked, both male and female subjects showed activation of brain areas that respond both to one’s own pain and to observation of pain in others. When an unfair player was shocked, however, the empathic response of male – but not female – subjects was substantially reduced. Areas of the brain associated with reward processing, on the other hand, showed enhanced activation in men, but not women, when the unfair player was shocked. These findings suggest that men’s empathy may be more easily “switched off” and that they may derive greater psychic satisfaction from inflicting harm on those perceived as deserving it.

PAIN TOLERANCE: Although it is commonly asserted that women have a higher tolerance for pain than men – a belief apparently resting on women’s endurance of painful childbirth – a large body of data refutes that argument. Instead, women generally withstand pain less well than men. A major review of pain studies found differences of over one-half a standard deviation for both pain threshold (the level at which a stimulus is perceived as painful) and pain tolerance (the level at which pain is no longer bearable).

Like sex differences in strength, these psychological sex differences – all of which are mediated by sex hormones – are individual differences that do not hold true for all members of their respective sexes. Moreover, the individually measured psychological differences are smaller than the physical differences described yesterday. Some women possess more physical courage and willingness to kill than some men.

Because of the overlap between the sexes, arguably combat personnel should be selected on the basis of these traits rather than using sex as a proxy. However, unlike strength, which can be easily and cheaply screened for, future courage under fire cannot be readily measured. A consistent theme in the combat-behavior literature is that one never knows who is going to be an effective soldier until the shooting starts, and the identity of the good fighters often turns out to be a surprise.

Because individualized predictions of combat performance are not a practical way to select personnel, at least on a wholesale basis, proxies such as sex are more necessary when it comes to predicting whether one has what it takes psychologically to be effective in combat than they are for strength.

My next post – I hope later today – will consider the effects of these psychological sex differences, as well as some others, on combat motivation.

Green Hannuka: From the Jerusalem Post, via Drudge:
  In a campaign that has spread like wildfire across the Internet, a group of Israeli environmentalists is encouraging Jews around the world to light at least one less candle this Hanukka to help the environment.
  The founders of the Green Hanukkia campaign found that every candle that burns completely produces 15 grams of carbon dioxide. If an estimated one million Israeli households light for eight days, they said, it would do significant damage to the atmosphere.
  On the other hand, maybe a miracle will happen and the atmosphere will not be damaged.

Tuesday, December 4, 2007

Harvard To Start VAP Program Geared Toward Practitioners: The Harvard Law Record reports:
  Dean Elena Kagan has initiated a new program to bring practicing lawyers to Harvard Law School and provide them an opportunity to start careers in academia. . . .
  The program, which is set to begin in the 2008-09 academic year, will bring practitioners who are interested in academia to Harvard for a two-year position, with the tentative title of "Visiting Assistant Professor." These positions will function much like the Climenko and Houston fellowship positions at Harvard Law and fellowships at other schools that are geared towards recent graduates.
  . . . According to Kagan, one of the reasons so few practitioners are hired by law schools these days is that very few people with substantial practice experience are actually putting themselves forward for entry-level academic positions. The market has shifted such that a much higher percentage of applicants are coming straight from law school or a fellowship.
  Part of this may be due to the difficulty of producing published scholarship while working as a practicing government, nonprofit, or private sector lawyer. "I think that's a shame," said Kagan. "We'd like to see people with more practice experience who also show scholarly potential."
If You've Ever Wondered About the Market Value of a picture of the Justices of the Rehnquist Court, signed by all nine Justices, you can find out in a day or so here.
Debate on Boumediene v. Bush: The Federalist Society has been hosting an interesting debate on Boumediene v. Bush, which will be argued at the Supreme Court tomorrow morning. Participants include Timothy Lynch, Brad Berenson, Andrew McBride, and Marty Lederman.
More on Law Firm Bonuses: Eugene links below to Saul Levmore's post on law firm bonuses, and I wanted to add a thought: I would think firms structure compensation that way because most applicants for biglaw associate positions have little information about firms and an uncertain commitment toward making partner.

  The lack of information about firms makes many applicants unusually sensitive to the very clear and measurable salary numbers. You may not know if you'll like one bigfirm over another, but you know that "160" is a higher number than "145." At the same time, once an associate has signed on, he or she may not have a clear incentive to be a top performer. Big firms often make very few partners, and the partner track is a decade long. In that environment, the promise of a financial reward for working hard and doing well may really influence an associate's willingness to bill all those extra hours.

  From the firm's standpoint, then, you would want to distribute compensation between salaries and bonuses. Put too much compensation into the bonus and it's harder to reach job applicants who may be unsure of the compensation package; put too much into the salary and you remove part of the incentive to keep billing. That's my guess, at least; I don't claim to have any remote expertise in this area, and I would assume it's the subject of a broad literature.

  UPDATE: Commenter "Patrick216" makes an interesting argument about bonuses and associate retention here.
Why Bonuses?

Saul Levmore (University of Chicago Law School Faculty Blog) has interesting thoughts on law firm associate bonuses and the reasons why they aren't just folded in to base salaries.

The Partisan Reaction to Clarence Thomas' Memoir:

Ohio Northern University law professor Scott Gerber, a leading academic expert on Clarence Thomas, has an excellent column on the highly partisan pattern of reactions to Clarence Thomas' recent memoir:

... [A]lmost all of the reaction to Justice Thomas's opinions and votes is partisan. As I detailed in First Principles, commentators are either "for" Justice Thomas or "against" him, in the crassest possible sense. The reaction to Justice Thomas's memoir, My Grandfather's Son, continues this disturbing trend. There are exceptions--David J. Garrow's review for Legal Times stands out among them--but they are few and far between.

Gerber provides some excellent examples of highly flawed commentary on Thomas' memoir from both the left and the right. I don't agree with everything Gerber says in the column, but he makes some telling points.

A few weeks ago, I blogged about the way in which people's views on the Clarence Thomas-Anita Hill controversy break down along predictable partisan lines, with nearly all conservatives certain that Thomas was telling the truth, and nearly all liberals just as strongly believing Hill. I suggested that this pattern betrays considerable partisan bias in judgment, since the actual facts of the Hill-Thomas dispute (a classic he said-she said) are murky enough to make it difficult to be sure who was telling the truth; quite possibly both were telling the truth on some points while exaggerating or misreporting others. Absent partisan bias, one would expect to see at least some liberals believing Thomas, some conservatives believing Hill, and a lot more people in both camps uncertain about the truth.

Unfortunately, there is a similar pattern in most commentators' reactions to Thomas' memoir and to his judicial opinions. One should be able to dislike the memoir or disagree with Thomas' jurisprudence without demonizing him. Similarly, one can agree with much of what he writes (as I do), without making absurd claims to the effect that he didn't benefit at all from affirmative action or asserting, as some conservatives have, that Thomas is a victim of racially motivated attacks from the left that rise to the level of lynching and other abuses of the Jim Crow era.

UPDATE: Just to clarify, I do agree with conservatives that some of the attacks on Thomas are racially motivated (Eugene Volokh provides some examples here), and that prominent black conservatives are often subjected to much harsher attack by the left than white ones. However, it is false to claim, as John Yoo (quoted by Gerber), for example has, that "Liberal attacks on Justice Thomas echo segregation-era hate speech," or to assert that these liberal attacks are similar to lynching.

Just in Time for 1L Criminal Law Exams: Today's New York Times has a story by Adam Liptak on the felony murder rule.
First Two Opinions in Argued Cases: This morning, the Supreme Court handed down the Term's first two opinions in argued cases. First, the Court held in an opinion by Justice Ginsburg that if you never lost your civil rights, you can't qualify for a sentencing exception that applies when those rights were "restored." Second, the court held in an opinion by Chief Justice Roberts that challenging a state tax assessment as discriminatory means challenging the method for calculating it as much as the calculations themselves. Both cases were 9-0 (and for those playing along at home, I don't think either case satisfies the predicate of the JGR Umpire Watch). As always, SCOTUSBlog has more details.
[Kingsley Browne, guest-blogging, December 4, 2007 at 10:25am] Trackbacks
Co-ed Combat – Physical Sex Differences and Their Continued Importance:

I appreciate the many thoughtful and enlightening comments to my earlier post. Many of the issues raised are matters I am writing about in this post or in subsequent ones.

Advocates of integration of women into combat forces often downplay the sex difference in physical capacity, correctly pointing out that some women are stronger than some men. In fact, however, there is little overlap between the sexes in terms of strength.

Women, on average, have only one-half to two-thirds the upper-body strength of men. The probability that a randomly selected man will have greater upper-body strength than a randomly selected woman is generally between 95 and 99 percent, depending upon the measure and the sample. Most of this difference is due to differences in the quantity of muscle tissue, a difference attributable primarily to sex hormones.

Although most discussion of physical sex differences focuses on strength, the sexes also differ on a host of other performance measures, such as running speed, aerobic and anaerobic capacity, endurance, and throwing speed and accuracy. These abilities are all potentially important in combat.

Some assert that these large physical differences can be overcome through training. In fact, however, training often increases the sex difference. Both sexes benefit from strength training, and in samples of out-of-shape individuals, women may initially gain more from training than men. Nonetheless, the overlap between the sexes decreases, because training not only increases the strength of both groups, it also decreases the variability within the groups. When males and females both start out in good physical condition, women gain less from further conditioning than men do, so the gap between the sexes actually increases.

Related to differences in strength and bone mass is the high rate of injuries, especially stress fractures, suffered by women in physical training. An extensive study of physical capacity by the British Ministry of Defence concluded that only about 0.1 percent of female recruits and 1 percent of trained female soldiers could satisfy the required physical standards for infantry and armor without sustaining substantially higher rates of injuries than men.

Much of the momentum for sexual integration of the combat arms rests on the assumption that the substantial sex differences in physical capacity, while real, are no longer significant, because battlefield prowess is now “a matter of brains, not of brawn.” Thus, the lessons of primitive warfare – or even that of any warfare prior to the late 20th century – are thought to have little to teach us. This assumption is both misguided and dangerous.

Modern ground combat still requires substantial physical strength. Today’s infantry soldier often carries between 75 and 100 pounds, and sometimes more. Just his rifle, ammunition, helmet, and body armor can weigh 60 pounds. Add to that food, water, night-vision goggles, various other electronic gear (and the batteries for it), and pretty soon the soldier is carrying a very heavy load – indeed, heavier than that of the soldier of World War II.

After carrying this heavy load, soldiers often must dig in to hard ground for shelter, perhaps in 120-degree heat. If there is concern about chemical or biological agents, as at the outset of the Iraq war, soldiers may have to wear stifling protective gear, which imposes greater physiological stress on women than on men.

Then, of course, comes the infantryman’s reason for existence – engaging the enemy – for which the soldier must have remaining energy reserves. Hand-to-hand combat (yes, it still happens) is the last resort of all war-fighters, as well as of those occupying support positions, whether signalmen, clerks, cooks, or truck drivers.

Hand-to-hand combat obviously requires physical strength, but it is far from the only fighting activity for which strength is essential. Many other activities do, as well, whether the lifting of heavy artillery shells or machine guns or carrying (or dragging) an injured comrade out of the line of fire.

Many combat-support positions also require physical strength. A study conducted in the 1980s found that all Army men in heavy-lifting Military Occupational Specialties (MOSs) were qualified for their jobs, but only about 15 percent of women were. The military has been reluctant to impose strength requirements widely, however, and even if realistic standards were set for particular jobs, adverse conditions often interfere with the neat system of MOSs. “It’s not in my job description” is not a permissible response in a firefight.

Physically grueling tasks are not limited to ground combat. When a Navy EP-3E reconnaissance plane collided with a Chinese fighter plane over the South China Sea in April 2001, the muscular pilot had to “wrestle” the plane down to a safe landing on Hainan Island. He reported that it took “every ounce” of his strength to keep the plane in the air until he could land. Perhaps there are many men who would not have been able to meet that challenge, but it is unlikely that any female pilot could have.

Similarly, if a ship gets struck by a bomb, missile, or mine, all hands may have to turn to the tasks of damage control, such as fire fighting, flood limitation, and evacuation of the wounded. In 1988, after the guided-missile frigate USS Samuel B. Roberts struck an Iranian mine in the Persian Gulf, it came closer than any other U.S. ship since the Korean War to be sunk due to hostile action. Sailors of all specialties turned to fighting the resulting fire and flooding.

Because the captain of the Roberts was concerned that shells would “cook off,” he ordered one of the magazines cleared of ammunition. A “bucket brigade” of fifty sailors – twenty percent of the ship’s crew – passed the fifty-pound shells from man to man. Although the regular job duties of many of these sailors did not require heavy lifting, if the sailors had been unable to perform when necessary, the Roberts would almost certainly have sunk. Yet a Navy study found that almost all Navy women fail the physical standards for critical damage-control tasks, while virtually all men pass.

If physical performance were all that mattered in combat, the military could employ sex-neutral physical standards to select those men and women with the requisite abilities. It has generally been unwilling to do so, however. (For example, an 18-year-old female is given more time to run two miles than a 41-year-old man.) Moreover, the number of women who could satisfy the physical standards is sufficiently low that the adjustments that would be needed to allow women to serve would dwarf any benefit derived from an infinitesimal increase in the recruiting pool.

In any event, physical capacity is only one part – and not the most important one – of combat effectiveness. The sexes also differ along a number of combat-relevant psychological dimensions, the subject of my next posts.

Is Divorce Bad for the Environment?

From today's Washington Post:

Divorce is not just a family matter. It exacts a serious toll on the environment by boosting the energy and water consumption of those who used to live together, according to a study by two Michigan State University researchers.

The analysis found that cohabiting couples and families around the globe use resources more efficiently than households that have split up. The researchers calculated that in 2005, divorced American households used between 42 and 61 percent more resources per person than before they separated, spending 46 percent more per person on electricity and 56 percent more on water.

Their paper, published yesterday in the Proceedings of the National Academy of Sciences, also found that if the divorced couples had stayed together in 2005, the United States would have saved 73 billion kilowatt-hours of electricity and 627 billion gallons of water in that year alone.

O'Connor Bobblehead Auction

on Ebay.

"Police Must Return Medical Marijuana":

Tom Caso (The Opening Brief) reports, pointing to a California Court of Appeal decision from last week, City of Garden Grove v. Superior Court (Kha).

The Absurdity of Republican Religious Politics:

Richard Cohen: "It is absurd that Romney feels compelled to deliver a speech defending his beliefs and that Huckabee does not have to explain how, in this day and age, he does not believe in evolution."

Near as I can tell, Cohen is correct that Huckabee is shamelessly basing his campaign not just on being a "Christian minister", but on not being Mormon, unlike you-know-who.

Monday, December 3, 2007

Intelligence Agencies Conclude Iran Ended Nuke Program in 2003: A press report is here, and the report itself is here. Interesting stuff.
A Pyrrhic Victory for Property Rights in Colorado:

The Colorado Supreme Court recently issued its decision in the important property rights case of Wheat Ridge Urban Renewal Authority v. Cornerstone Group. The litigation in question arose because a city had committed to condemning some private property in order to transfer it to a developer. The planned condemnation was similar to that which the US Supreme Court upheld under the federal Constitution in Kelo v. City of New London; both were undertaken to promote "development" in the area. In the Colorado case, however, the city decided to cancel the project, and the developer thereupon sued to compel the city to go through with the condemnation and transfer against its will. The state supreme court has now ruled for the city.

As Tim Sandefur of the Pacific Legal Foundation explains, the decision is a victory for property owners of sorts, but its reasoning is likely to undermine property rights in the long run. The Court's reasoning was not based on any potential violation of constitutional property rights inherent in transferring private property to another private party for purposes of "economic development," but rather on the theory that private parties such as the developer generally have no right constrain the government's ability to exercise its power of eminent domain as it sees fit. The Court emphasized that state and local governments retain broad authority to condemn property, and that the state "remains empowered to redistribute it in any manner that future circumstances and the public welfare demand."

Well-informed VC readers might wonder why such Kelo-style takings are still occurring Colorado, given that the state recently enacted legislation that was supposedly intended to curb them. The answer is that Colorado is one of numerous states that have enacted flawed post-Kelo "reform" legislation that allows "economic development" takings to continue under other guises even as it purports to ban them. The Colorado law is briefly discussed on pp. 16-17 of my paper on post-Kelo reform.

UPDATE: Just to be completely clear, the reason why the state supreme court's decision undermines property rights more than it protects them is that it holds that the City had the right to cancel the taking because of its broad power to use (or not use) eminent domain anytime it believes doing so may promote "the public welfare." This implies nearly unlimited authority to initiate condemnations as well as to cancel them. In this case, under the Court's reasoning, the property owners won only because the City ultimately decided that it didn't want to condemn their land. In cases where a local government actually does want to take the property in question, this decision will actually hurt property owners by giving the government a virtual blank check to condemn property as they see fit.

Update on the Power and Majesty of the Due Frocess Clause: We all know that for every protection in the Bill of Rights, there are those who will dig deep to find a reason to doubt the Constitution's protections. Usually they have a political agenda, naturally, and of course we should pay no mind to them.

  Nonetheless, I thought I would point out the revisionist history offered by two anonymous commenters about my post on the Due Frocess and Dur Process clauses. Commenter Alias makes this claim:
  If you look at the reporter in Hoffa (at least, at the reporter image on Westlaw), the "Due Frocess Clause" appears to be a scanning error by Westlaw. The P in Process is missing a small piece, but it's pretty clearly a P with a smudge and not an F.
  Also, in the font that the reporter used, the capital F's have an extra serif, making them look a lot like P's---if you zoom out far enough, it's easy to mistake the petitioner's name for "HOPPA" at least on some of the pages.
Federal Law Clerk adds:
For what it's worth, I have just checked both the cites in Orin's post against first edition bound copies of the US Reports, and he is mistaken in both cases. Hoffa and Taylor both very clearly refer to "Due Process." No question about it, and there is nothing irregular about the printing.
  Bah, humbug, I say. I am reminded of Robert Bork's infamous "ink blot" testimony during his failed confirmation hearings. Bork explained his opposition to unenumerated rights in the following way:
  There are some rights that are not enumerated but are found because of the structure of the Constitution and government. That is fine with me. I mean that is a legitimate mode of constitutional analysis.
  [In contrast,] I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have I do not think the court can make up what might be under the ink blot if you cannot read it.
  (emphasis added)

  Judge Bork was famously rejected by the Senate, and that rejection was no doubt in part due to Judge Bork's view that an ink blot is merely an ink blot. To a Judge Bork kind of judge, a smudged P is just a smudged P. But obviously we know better. In our more sophisticated legal culture, we recognize that a smudged P has a very large degree of "F"-ness. As a result, the Due Frocess clause lives on.

  To be clear, I recognize the current Supreme Court may not recognize the full potential of the Due Frocess clause anytime soon. But some day the currents will change, and when the Due Frocess clause returns from Exile I will be ready.
Garry Kasparov On his 5 day imprisonment for Leading Anti-Putin, Pro-Democracy Demonstration:

Russian liberal democratic opposition leader and former world chess champion Garry Kasparov has an interesting column recounting his recent 5 day imprisonment for leading a demonstration against the increasing authoritarian Russian President Vladimir Putin. For my previous posts on Putin and Kasparov, see here, here, and here. And for Russian-speaking readers, here is the website of Kasparov's United Civic Front opposition movement.

While far from ideal, both the length and the conditions of Kasparov's imprisonment were much less severe than what dissidents got for similar anti-government demonstrations in the Soviet era. Still, the fact that Putin felt free to imprison a world-famous opposition leader even briefly implies that he is likely to be less restrained in dealing with opposition figures who aren't as well known in the West. As Kasparov notes in his op ed, "Opposition activists--or just those who happen to be in the way of the [Putin] administration--are harassed and arrested on false charges of drug possession, extremism, or the latest trend, for owning illegal software."

For the moment, a combination of economic growth fueled by high oil prices and nationalist demagoguery have rendered Putin's regime invulnerable to political challenge. Even in the absence of authoritarian repressive measures, Putin and his allies would probably prevail in the upcoming Russian presidential election. However, oil prices will eventually fall, and Putin or his handpicked successor are unlikely to remain popular forever. At that point, Russia will face a choice between moving towards free markets and liberal democracy or increasing quasi-socialist authoritarian nationalism.

The significance of Kasparov and his United Civic Front movement is not that they have any real chance of undermining Putin's regime in the near term, but in their ability to maintain a viable liberal democratic opposition against the day when the regime's popularity begins to fade. Many of the possible alternatives to Putinism - such as a truly radical and extremist nationalist regime - are far worse than the current government. Kasparov's movement is the only one that is clearly better.

Like it or not, Russia remains one of the world's most important economic and geopolitical powers. Both Russians and Westerners therefore have an important stake in the future of Russia's liberal democratic opposition.

Bush administration vs. Santa Claus

Perhaps the first administration in American history to criticize Santa. I wonder what part of the Constitution gives the federal government authority over all this? It's true that Santa's activities are clearly interstate and international. And these days, giving away presents might be considered "commerce," or at least something which greatly affects interstate commerce. Will the candidates for 2008 promise that their administration will leave Santa alone? Will Huckabee order Santa to be held captive in a fat farm (or, as they call it these days "a health spa") for his own good?

More here, from the Center for Consumer Freedom.

Stuart Taylor on Boumediene v Bush: Over at the National Journal, Stuart Taylor has a very interesting column on Boumediene v. Bush. You really should read the whole thing, but here's an excerpt:
  Boumediene, who denies supporting terrorism, has never even been accused of taking up arms against U.S. forces. So how do we know he is an enemy combatant? The basic Bush answer is, "Because we say so."
  The government has provided no evidence to the public, to any court, or to Boumediene that he has ever supported terrorism in any way. It has not allowed his volunteer lawyers to see the classified evidence against him, to call witnesses in his defense, or to appear at the cursory military hearing in which a three-officer, judge-free "combatant status review tribunal" -- which was free to consider evidence obtained by torture -- found him to be an enemy combatant. And the administration claims that it can hold Boumediene for as long as it wants no matter what the outcome of the cursory review of the tribunal decision by a federal Appeals Court in Washington provided for by a 2006 law.
  In short, the process is so stacked against detainees as to be Kafkaesque and so unreliable and secretive as to be a global scandal. It has helped to make martyrs of even those Guantanamo detainees who appear to be terrorist mass murderers.
  How did Bush go so wrong on this? Because he and his top advisers were drunk with power and contemptuous of world opinion. Bush's attorneys took the most indefensibly sweeping interpretations of presidential war powers they could conjure; did their best to exclude Congress, the courts, and lawyers from decisions on how to handle detainees; and thus bypassed the checks and balances necessary to avoid grievous mistakes.
  The interesting question is whether the Administration's strategies will trigger a judicial backlash, leading the Court to constitutionalize rights in response to Addington, et. al. I think the chances of that are pretty significant. On the other hand, I would guess the Court will limit its reasoning in Boumediene to the Guantanamo detainees. The Administration may be figuring that the Guantanamo detainees aren't really important in the long run, so it's okay to risk a significant loss in this case so long as the Court's decision doesn't directly impact other detainees around the world.

  Hat tip: Anderson.
The Due Frocess Clause: Sure, you've heard of the Due Process Clause. But what about the "Due Frocess" clause? And what about the "Dur Process" clause? The Supreme Court occasionally mentions these little-known provisions of the Constitution, but as far as I know they have never received the sustained attention they deserve.

  Lack of attention to the Due Frocess clause is perhaps understandable. The Due Frocess clause has been mentioned by the Supreme Court only once, in Hoffa v. United States, 385 U.S. 293, 310 (1966) ("The argument is based upon the Due Frocess Clause of the Fifth Amendment."). So maybe there isn't much to go on there.

  In contrast, the "Dur Process" clause has been mentioned in over one hundred federal and state cases. The U.S. Supreme Court has invoked the Dur Process clause no less than six times, mostly recently in Taylor v. Hayes, 418 U.S. 488, 503 n.10 (1974) ("But this statement — perhaps dissenter's license — misconceives our holding and undervalues the import of the Dur Process Clause.").

  Obviously, the "Due Frocess" and "Dur Process" clauses are termed in ambiguous language for a reason. They are empty vessels waiting to be filled with Constitutional wisdom. Although most scholars have ignored these provisions of our Founding Charter, I hope and trust that will soon change. After all, it is a Constitation we are expounding.
Podcast on Gun Issues

A couple months ago, I was interviewed for the Gun Rights Advocates Podcast by host Mark Vanderberg. We talked about the implications and background of the D.C. handgun ban case, the politics of the gun issue, the role of activists, and new research about gun bans in Africa. The 36-minute interview is here. It begins with about 5-6 minutes of discussion by the host.

[Kingsley Browne, guest-blogging, December 3, 2007 at 10:50am] Trackbacks
Co-ed Combat – Overview:

Many thanks to Eugene for inviting me to guest-blog about my new book Co-ed Combat (Sentinel (Penguin USA)). Today, I am going to provide an overview of the book, and subsequent entries will discuss specific issues in greater depth. I obviously cannot cover all of the issues raised in my book, but many that I don’t address initially may come up in responses to comments.

Co-ed Combat starts from the premise that policies concerning sexual integration of combat forces should be measured first by their effects on military effectiveness. Other goals, such as expansion of women’s opportunities, must give way to the extent that they impair combat effectiveness. Although the premise is contestable, it is a foundation upon which virtually all political discussions of the role of women in the military rests. Advocates of sexual integration of combat forces seldom argue that military effectiveness must be traded off against equal-opportunity concerns; instead, they contend that there is no tradeoff at all.

Under policies in place since early in the Clinton administration, women are permitted to serve on warships (other than submarines) and in combat aviation. They are still barred from “direct ground combat,” however, including positions that “collocate” with (that is, operate side-by-side) ground-combat units. The Army seems to be violating the collocation rule routinely in Iraq, a practice that results in increased combat exposure for women, and some argue for completely scrapping the bar on women in ground combat.

I argue that those who believe there are no substantial tradeoffs involved in including women in combat roles are wrong. Inclusion of women in those roles results in a segment of the force that is physically weaker, more prone to injury (both physical and psychological), less physically aggressive, able to withstand less pain, less willing to take physical risks, less motivated to kill, less likely to be available to deploy when ordered to (partly, but not exclusively because of pregnancy), more expensive to recruit, and less likely to remain in the service even for the length of their initial contracts. Officers and NCOs must reassign physical tasks (or do them themselves) because women cannot get them done fast enough, if at all.

The fact that women, in general, are less effective warriors is only part of the problem. The more fundamental problem comes from the mixing of men and women in combat forces, which creates a variety of problems for reasons rooted in our evolutionary history. Women frequently are placed in units with men who do not trust the women with their lives and who do not bond with women the way that they do with other men.

The groups into which women are introduced become less disciplined and more subject to conflict related to sexual jealousy and sexual frustration, and men receive less rigorous training because of women’s presence. Officers and NCOs must divert attention from their central missions to cope with the “drama” that sexual integration brings. Men, who traditionally have been drawn to the military because of its appeal to their masculinity, now find that the military tries to cure them of it to make the environment more comfortable for women.

Against these impairments of the military’s ability to wage war, what are the benefits to the military of full combat integration? One possible benefit is an increase in the recruiting pool. Contrary to rhetoric, however, the pool is not “doubled” in any meaningful sense. Sexual integration of the military generally has increased the pool by only fifteen to twenty percent. Expansion of the potential pool of combat volunteers (in the ground forces, at any rate) would probably be more on the order of one percent at most.

If it is not numbers that women bring, then it must be something unique to women, but it is not obvious that women qua women would bring much in the way of specific benefits to the combat forces. In short, no one argues that eliminating the combat exclusion would unleash the whirlwind on America’s enemies.

I should emphasize that my arguments are not an indictment of military women, although I do not believe that many women are suited to combat, especially, but not only, ground combat. But, in researching my book, I was struck by the high regard that most military men I spoke with have for military women outside the combat context – even though most of these men opposed women’s participation in combat. One can simultaneously appreciate military women’s service to their country and also believe that all-male combat forces are more effective than mixed-sex ones.

The argument that full integration would be effective rests on a number of assumptions, including:

• That the high-tech nature of modern warfare means that the sexes no longer differ much in combat-relevant ways

• That as long as a woman possesses the individual physical and psychological attributes of an effective soldier, her inclusion in a combat unit would not impair its effectiveness

• That the primary obstacle to integration are men’s “masculinist” attitudes, which can be overcome with adequate training and leadership.

All of these assumptions are flawed, in my opinion, and, as a result, the costs and difficulties of sexual integration of combat forces are often substantially underestimated.

I will discuss some of these issues in subsequent posts. My next post will talk about physical differences between the sexes and their continued importance in combat.

Women in Combat:

I'm delighted to say that this week, and then the week after next, we'll have guest-bloggers blogging about women in combat.

The first, who starts today, will be Prof. Kingsley Browne of Wayne State University Law School, who is the author of the just-released Co-ed Combat: The New Evidence that Women Shouldn't Fight the Nation's Wars. The second, scheduled for the week of Dec. 17, will be Capt. (& Prof.) Rosemary Mariner of the University of Tennessee's Center for the Study of War & Society; Prof. Mariner will be arguing in favor of allowing women in combat. I much look forward to what should be a thoughtful, enlightening, and important discussion.

What Will the Supreme Court Do In Boumediene v. Bush?: In today's New York Times, Linda Greenhouse offers an excellent preview of Wednesday's oral argument in Boumediene v. Bush. You can read the briefs in the case (both the merits briefs and the many amicus briefs) at this link.

  What will the Supreme Court do with this case? No one knows, but here's some speculation. For reasons explained in part in my Congressional testimony back in May, I'm pretty confident that there are five votes for the view that the Guantanamo Bay detainees have a constitutional right to the writ of habeas corpus. Justice Kennedy's Rasul concurrence pretty much said so back in 2004, and I doubt Justices Stevens, Ginsburg, Souter, and Breyer will disagree now that they're forced to answer that question.

  The real question becomes, what does that right mean? Here it helps to recognize that there are two different procedural rights at stake. First, there is the Due Process right to a hearing on the lawfulness of detention. Second, there is the right to a federal court habeas corpus hearing on whether those Due Process rights were denied. What's the difference? The first right can be satisfied by procedures within the Executive Branch. In contrast, the second is a right to a hearing in court before a judge.

  The difficulty for the Court is that no one really knows what underlying Due Process rights the detainees have. They may have none; they may have a lot. We just don't know, as the Court has never addressed the issue and relevant precedents are sparse. This raises an interesting legal question: If the detainees have habeas rights, does that require a full traditional Article III hearing regardless of what underlying Due Process rights the detainees have? Or is the adequacy of the habeas proceeding dependent on the scope of the underlying right? To make a long story short (and to oversimplify things considerably), the Boumediene brief argues the former; the DOJ argues the latter.

  What will the Court do? If I had to guess, I would guess that the Justices will strike down the jurisdiction-stripping provisions of the MCA and rule that the detainees are entitled to full habeas proceedings to determine whether any constitutional rights the detainees may have have been denied. That way, the Court can definitively resolve the case without having to address the underlying question of the detainees' rights. (If this happens, presumably JPS assigns the opinion to AMK.) The big question becomes whether the Court or some of individual Justices in the majority will say anything about the detainees' underlying Due Process rights. Hard to know.

  Anyway, that's my pre-argument speculation, no doubt worth exactly what you paid for it. The Court will hold argument on Wednesday morning at 10am. Same-day audio will be posted.

Sunday, December 2, 2007

When Law Meets Jazz: If you're in Pensacola, Florida, you can see a federal courtroom presided over by Magistrate Judge Miles Davis. (Okay, so his full name is "Gordon Miles Davis," but it seems that Judge Davis goes by the first name "Miles.") No word yet on whether he judges with his back to the courtroom.
Who Is Number One?

Which college football team should be ranked number one? Who should play for the national championship? After yesterday's upsets, it seems there's an open field. Make the case for your teams in the comments.

Sunday Song Lyric: Portishead fans can rejoice -- at least those on the far side of the Atlantic. The trip-hop stars will perform at next week's All Tomorrow's Parties festival and the following week at Bristol Academy. According to NME, the latter will be "the first non-festival full band performance the band have played in ten years." A new album is promised for 2008.

"Sour Times" was Portishead's biggest hit in the U.S. It captures the band's trippy musical melange quite well. The song begins:

To pretend no one can find,
The fallacies of morning rose,
Forbidden fruit, hidden eyes,
Courtesies that I despise in me
Take a ride, take a shot now.

‘Cause nobody loves me,
It's true,
Not like you do.
The full lyrics are here, and here is a live performance of the song on YouTube.