Saturday, December 22, 2007


I was recently contemplating how ambiguous English is — though I imagine this is true in large measure of all commonly spoken human languages — and I was reminded of this cool example. Take the word "and"; surely that must be about as clear as it gets. It isn't used figuratively; it doesn't have slang meanings; it's eminently concrete and functional.

Then think about the phrases "I like coffee and tea" and "I like whiskey and soda." How can English speakers even function? And yet we generally manage just fine.

By the way, if anyone knows the original source for this observation, please let me know. I vaguely recall having seen it in a case discussing statutory construction, but my quick search failed to uncover it. UPDATE: Commenter Andy Grewal comes through -- the source is Judge Rogers' dissent in OfficeMax v. U.S. (6th Cir. 2005), which uses "beer and wine" and "bourbon and water." Thanks!

[Rosemary Mariner, guest-blogging, December 22, 2007 at 10:11pm] Trackbacks
The Americanization of the Armed Forces-Closing Comments:

My thanks again to Eugene and the thoughtful commentators for an interesting discussion.

In November of this year, General George Casey, Chief of Staff of the U.S. Army, testified before the Senate Armed Services Committee. In his remarks, he described what was at stake in a war against a global extremist threat as "the power of our values...whether the authority of those who treasure the rights of free individuals will stand firm against ruthless and pitiless men who wantonly slay the defenseless."

It is significant to this debate that General Casey identified "the rights of free individuals" as part of what the United States is fighting for.

Prof. Browne has constructed an argument for legal discrimination, built on the premise that evidence from the theoretical field of evolutionary psychology justifies gender classification because of inherent sex differences.

Yet this field of research cautions that nothing in evolutionary theory privileges males over females,nor does it prescribe social roles for either sex.

If this line of reasoning is adopted (again), then an adult female citizen's individual status is secondary to class membership. Gender classifications also work the other way around by discriminating against men, notably in the areas of parental rights and conscription.

The analogy to racial discrimination in the military is absolutely relevant. While the pernicious stereotypes were different, proponents of racial segregation argued just as ardently that black men couldn't fight, be trusted, and impeded cohesion because of inherent racial differences. The individual rights of African Americans were viewed as contrary to military effectiveness.

In the end, it was military effectiveness that finally ended racial segregation in the Army. During the Korean War, desperate for replacements, General Matthew Ridgeway formally asked the Army to racially integrate the National Guard and Army divisions under his command.

We can argue in circles about cohesion, pregnancy, double standards, physical strength, political correctness --dueling studies; down in the weeds-- but in the end it comes down to a fundamental choice: Do adult citizens participate in the public sphere as individual human beings first, equal before the law, or our group affiliations paramount?

There is no inherent dichotomy between a gender-integrated force and military effectiveness. The traditional principles of military leadership apply to gender integration as they do to everything else. The inclusion of women enhances military readiness by increasing the overall pool from which to draw the best recruits. Men and women have successfully served together, including under combat conditions, for years.

There is an additional benefit to a gender-integrated force which goes back to citizenship. The more American women are equal participants in the armed forces, the greater stake they have in the common defense. It is American citizens, through the constitutional process, that ultimately determine what constitutes military effectiveness.

Happy Holidays to All

New Criminal Procedure Treatise Published Just In Time For Christmas: Looking for a last-minute Christmas gift? I recommend the new third edition of LaFave, Israel, King & Kerr's Criminal Procedure treatise, in 7 exciting volumes, just published as of Thursday and now shipping. The Table of Contents is here. At only $689.50, with free shipping, feel free to order 5, 10, or even 50 sets to make sure no one on your Christmas list is left out!
"It's A Wonderful Life" and the Financial Services Industry: Over at Money Law, Marie Reilly has an interesting post on the movie "It's A Wonderful Life" (click on link to view) and the history of the financial services industry. An excerpt:
  At the beginning of the 19th century, there was no banking as we know it. Rich people needed safekeeping services to store gold or other forms of wealth, and banks provided secure vaults. The first depositary savings bank is thought to be the Philadelphia Savings Fund Society, established in December of 1816. It launched an industry that profoundly changed the American economy.
  Savings and loans emerged as small businesses that accepted cash deposits from customers and made loans to borrowers in the community. During the nineteenth century, as urbanization and wage income grew, savings and loans encouraged wage earners to save. They replaced extended family as a source of capital. And all in the nick of time to finance the rapidly growing consumer sector. A wage earner needed finance to acquire the "American Dream" consisting of big ticket items like a home and a car. The connection between savings and loans and the emerging consumer middle class was more than skin deep. As a regulatory matter, savings and loans were "of the people" in a way that banks were not. Depositors controlled the investment strategy deployed by savings and loan management. In contrast, equity investors, usually with no connection to the deposit community (e.g., Mr. Potter), controlled the management of banks.
[Rosemary Mariner, guest-blogging, December 22, 2007 at 11:19am] Trackbacks
The Americanization of the Armed Forces-How Many Women Does it Take to Make it Worthwhile?:

As with men, who wants to serve in ground combat and qualifies, depends on the individual. Right now, men volunteer for ground combat positions. One way to estimate how many women would be interested, is to survey serving female Soldiers and Marines, including officers. Of those, you could establish who is qualified.

The only way to know how many of these women could actually complete the training programs and perform well in the field, is to do it. Even then, these women would only prove their individual ability and determination.

The more immediate issue is the colocation (proximity) versus collocation (proximity and interdependence) interpretation of the current Army policy restrictions. Compare what the Marines are doing. My recommendation is to do a serious review. However, this is something the active duty force has to figure out.

As to how many it takes to make "it worthwhile", that depends on how you define "worthwhile" and the standards. Just how many "accommodations" are really necessary, and how many are the result of paternalism? When the chips are really down, like with the Soviets in WW II, you do what it takes to get the job done.

Which comes back to the larger issue of peacetime versus wartime mobilization. For military manpower planners, defining "worthwhile" is a function of demand and supply.

In peacetime, the vast majority of American men are not interested in military service, let alone the infantry. In wartime, it depends on the cause. If the cause is compelling, men have volunteered in droves. During both WW I and WW II, the War Dept. eventually prohibited volunteering so that men had enter the military through the Selective Service process.

In these mass mobilizations, Selective Service was used as a way of scientifically managing manpower, while ensuring enough men were available to work in the mobilized economy. Who fought in the infantry, artillery, aviation, Navy, or whatever capacity, was determined by the services, needs at a given time, and individual attributes. A man made his preferences known, but his aptitude scores, education, and theater needs drove the assignment process.

Since these wars were predominately fought with conventional forces, the major requirement was for a large number of ground forces. Another driver was the requirement for men sufficiently intelligent and educated that could operate and maintain the benefits of technology. The mechanization of the armed forces fundamentally altered the manpower equation.

This is not to say the nature of war has changed, but technology certainly influences the conduct.

Despite the limited warfare in Iraq and Afghanistan, the Total Force is smaller today than during the Gulf War. By the end of Desert Storm, there were over 500,000 forces in theater. In Iraq, the number of forces is roughly a third of that. Yet the Army, the service most heavily invested in Iraq, has had to lower its standards to barely meet recruiting goals.

The difference is the cause. While some men are motivated to join solely by a desire to prove their masculinity, the reality is that most young American males are sitting on the sidelines. If the Taliban invaded the country, women might push men out of the way to fight. In America, cause greatly influences the "worthwhile" analysis.

[Rosemary Mariner, guest-blogging, December 22, 2007 at 12:02am] Trackbacks
The Americanization of the Armed Forces-Recap of Prof. Browne's Arguments:

In his book, Prof. Browne recommends 1) reinstating a "risk rule" excluding women from combat positions and from positions presenting a substantial risk of combat or capture, 2)reinstating the exclusion of women from combat aviation, 3)barring women from warships, and 4) considering closing additional support positions.

He does not specify whether these exclusions should be policy or statue. He offers no estimate of how many men it would take to replace these women.

The basic rationale for this discrimination is 1) the vast majority of women can't fight because of intrinsic physical and psychological sex differences, 2) women are less deployable than men, 3)women impede cohesion, 4) women impede men's combat motivation, and 5) the presence of women inhibits men from fighting as well because they don't trust them.

While acknowledging that there are individual women who are strong and fit enough for combat, he contends they are too few to justify inclusion and their very presence is disruptive to men.

He offers no positive example of a military woman. If women are doing well, it is because they are getting special treatment and political correctness. If they do poorly, it is because they are women.

Asserting that war is a manly thing, he concludes that gender integration reduces military effectiveness.

In his book, the primary evidence for these assertions is 1) negative anecdotes from unnamed individuals, 2)selective citation to various studies, and 3)pubished and unpublished work in the theoretical field of evolutionary psychology.

He starts off with the following juxtaposition: military effectiveness versus sexual integration. As if this were a zero-sum equation and the two genders are akin to matter and anti-matter. This is a Rambo vs. Private Benjamin straw man.

His interlocutors are dismissed as seldom acknowledging that there is a trade-off between the two, --as if this was the only possible conclusion.

The idea that the inclusion of women might enhance military readiness, or their removal damage it, is never considered.

Arguments versus Evidence.

1) Women can't fight due to intrinsic physical and psychological differences. As discussed earlier, the premise that women can't fight well--with or without men--is counterfactual. The empirical evidence to the contrary is overwhelming. The Soviet example is the largest case, under conditions that are as "real" combat as it gets.

Deborah and Judith in the Bible; Artemisia, Queen Boudicca, and Joan of Arc are just some of the better known individual examples. Modern examples of irregular warfare include China, Yugoslavia during WW II, the Israeli War of Independence, and Vietnam. Current examples include female suicide bombers in the Middle East.

Israeli women were barred from combat positions until 1997, when combat aviation was opened. In 2000 the Knesset opened all branches and services of the IDF to women. In 2007 an internal IDF commission reportedly recommended opening all infantry, armored corps, and special forces positions to women.

In Canada, women have served in combat aviation and the infantry since 1989.

Whatever average sex differences may exist, they have not stopped large numbers of women from fighting and killing.

2) Women are less deployable than men, for reasons including pregnancy. Pregnancy is a clear difference between the sexes. Unplanned losses can be a problem with junior enlisted women, although whether it is problematic varies greatly by command. The most recent published data that I could find was a Navy study dated 1999. It indicates that pregnancies for CY97 made up 6% of total unplanned losses of women assigned to ships; however the rate was 2.5% higher for women then men. In commands with senior female enlisted leadership, the rate was significantly lower. However, personnel lost from ships because of pregnancy were more likely than other losses to stay in the Navy and return to a ship.

Colonel Martha McSally, USAF, an A-10 pilot and former combat squadron commander, offers her views on pregnancy and paternalistic policies in the current issue of the Duke Journal of Gender Law & Policy. Prof. Browne has an article in the same issue.

3) The presence of women impedes group cohesion for men. As discussed earlier, the published research suggests just the opposite; the presence of women does not affect cohesion.

Prof. Browne attempts to dismiss this research by claiming analysts are motivated by gender equality and not military effectiveness. The policy analysis literature clearly focuses on readiness.

We live in a gender integrated nation where men and women not only compliment one another, they perform extraordinarily well in life and death professions, like medicine. Mixed gender warships and aviation squadrons operating under dangerous conditions have received numerous awards. Why would the combat arms be any less professional?

4) Women impede the combat motivation of men. Much of this discussion focuses on men wanting to "prove themselves in battle" and be recognized as courageous. I don't dispute this as a powerful motivator for some men, just as it is for some women.

Here Prof. Browne makes a bold assertion that men are more courageous than women. The evidence he cites mainly comes from psychometrics. Again, this field is about individual differences and rejects group membership as a substitute for estimating psychological attributes. Other evidence he cites is a certain commission which gave more men then women awards for valor, --as if this might not say more about the commission than anything to do with biology.

This not only ignores the empirical evidence of women across the ages who have demonstrated acts of courage (most recently the female security guard that shot a crazed gunman in Colorado), but it categorizes a human trait as masculine.

One example Prof. Browne cites is the refusal of a group of Army Reservists to drive in a fuel convoy. He speculates that since women were not part of the group, men were less likely to be shamed by their behavior. Regular officers might have focused first on the group's identity as Reservists.

In military culture, the desire to be recognized and respected by one's peers is an overwhelming force for both men and women.

5) Men don't trust women in combat. It is clear there are men who haven't been in combat with women, who don't trust them. There are also combat veterans who feel the opposite way or just want the best qualified person.

Again, I make the point about individuals. There are men who don't trust other men, not because of gender, but as individuals. The same applies to women. Trust has to be earned.

I go back to the empirical case. In WW II, Soviet men fought with, and in some cases, under the command of women. Today, men and women are doing an outstanding job together in combat aviation and aboard warships.

Impact on Military Effectiveness

Prof. Browne claims his goal is military effectiveness. However, if implemented, his recommendations would do nothing but harm combat readiness. They would undue over 13 years of gender-neutral policies in combat aviation, combat support, and aboard warships. Depending on what support positions were identified, positions that women have filled successfully for 35 years could be closed.

There is nothing reasonable about these proposals.

The number of men that would have to replace women is unclear. In Iraq alone some 11% of Army personnel are female. Air Force, Navy, and Marine Corps women would be sent home. At a minimum, tens of thousands of women, ranking from E-1 to O-8, would have to be replaced. The perturbations caused by a mass removal or reshuffling of experienced service members, including senior enlisted and general officers, would cause major personnel shortages and confusion.

How many men stateside would have to return to Iraq or Afghanistan if female combat support personnel were redeployed? Morale across the services would be severely damaged by removing women who want to serve, while men were forced to take extra tours in Iraq.

The Army, having already lowered its recruiting standards, is attempting to add 74,000 soldiers over the next 5 years to meet its higher authorized end strength. If the number of positions opened to women were harshly curtailed, thus shrinking the pool of available candidates even further, where would these men come from?


Friday, December 21, 2007

After You Read the First Paragraph of the Facts in this opinion by Judge Kleinfeld, you get the feeling the conviction is going to be affirmed:
Gregg Crampton was driving his niece and her three-year old daughter around as he made a methamphetamine delivery. He realized his probation officer had seen him, so he sped away and told his niece to throw the methamphetamine and needles they had out of the window. She refused, so he pointed his gun at her, threatened her, and told her to get out of the car. She pointed out that the car was going too fast, so he slowed down and pushed her and her three-year-old out of the car.
Professors Taking Performance-Enhancing Drugs: From the Chronicle of Higher Education News Blog, via IsThatLegal:
  Some university faculty members have started popping 'smart' pills to enhance their mental energy and ability to work long hours.
  In a commentary published in Nature on Thursday, Barbara Sahakian and Sharon Morein-Zamir of the University of Cambridge revealed an informal survey showing that a handful of colleagues, all involved in studying drugs that help people perform better mentally, would take the drugs.
  The notion raises hackles in some parts of academe. "It smells to me a lot like taking steroids for physical prowess," said Barbara Prudhomme White, an associate professor of occupational therapy at the University of New Hampshire, who has studied the abuse of Ritalin by college students. With the recent revelations about the use of performance-enhancing drugs in professional baseball, she sees parallels between striving athletes and faculty members.
Political Ignorance and the Iowa Caucuses:

One of the underanalyzed questions in the current presidential election is the extent to which the results are likely to be influenced by political ignorance. In general, primary voters are likely to be better-informed than the average citizen, and caucus goers even more so (because attendance at a caucus requires a much higher investment of time and effort and therefore tends to draw more committed voters with a higher level of interest in politics). Nonetheless, this recent Des Moines Register poll of likely Iowa caucus voters suggests that ignorance may well have a major impact even in the election with perhaps the country's best-informed voters. The poll asked "likely" participants in the Republican and Democratic Iowa Caucuses whether they believe they need more information about 19 major issues in the campaign (click on the image to get a clearer picture):

It is striking that large numbers of likely voters admitted that they need "more information" on a variety of major issues. For example, 56 percent of Republican voters and 50% of Democrats admitted that tney need more information about Social Security - despite the fact that this issue has been extensively debated for years. Similarly, 52% of Republicans and 46% of Democrats admitted they need more information on American's "relationship with other countries" - even though foreign policy has been perhaps the most important issue on the political agenda since 9/11. Forty percent or more of Iowa voters in both parties admitted to lacking information on eight of the other issues surveyed, including major ones such as judicial nominations, trade policy, and taxes.

These figures very likely understate the true degree of ignorance among likely Iowa voters for three reasons. First, as I point out in this article, surveys show that many respondents are unwilling to admit ignorance. For example, 20-30% will express opinions on nonexistent laws made up by pollsters rather than admit that they haven't heard of them. Second, the more ignorant you are, the more likely you are to be unaware of the full depth of that ignorance and to underestimate the amount of information you need to be a better voter. Third and finally, Iowa caucus voters - unlike most of the rest of us - have a great deal of personal exposure to candidates. While this personal experience might itself be a source of useful information, it is also likely to lead voters to underestimate the degree of their residual ignorance, because cognitive biases lead people to overstate the signficance of information derived personal experience and underestimate the importance of more remote sources of knowledge.

It's also worth noting that Iowa caucus voters are perhaps the best-informed in the entire country, given the amount of exposure they have to campaign information and the fact (noted above) that caucus voters are likely to be better-informed than primary voters. If Iowa caucus voters - by their own admission - lack adequate information on numerous major issues, the rest of the electorate is likely to be even worse.

George R.R. Martin on Law and Fantasy Literature:

Lawprof Dave Hoffman has an interesting interview with fantasy writer George R.R. Martin on the role of law in fantasy literature. Martin's "Song of Ice and Fire" series is one of the major milestones in the new trend toward grittier and more "realistic" fantasy writing.

Related Posts (on one page):

  1. George R.R. Martin on Law and Fantasy Literature:
  2. Peter Jackson Signs Deal to Make Two Hobbit Movies:
How Much Difference Would The Proposed Immunity Deal Make?: Writing on the proposed deal to grant the telecom companies immunity in the lawsuits filed against them for working with the intelligence agencies, lawprof Michael Dorf suggests this analogy:
Suppose an FBI agent approached a generally law-abiding citizen that I'll call "Shmerizon," and the following conversation ensued.
FBI Agent: I'd like you to whack Shmarlos the Shmackal. He's a terrorist.
Shmerizon: By whack, you mean . . . .
FBI Agent: You know what I mean.
Shmerizon: Uhm, isn't that illegal?
FBI Agent: I'm with the government. If I tell you to do this in the interest of national security, it's not illegal. Understand?
  Shmerizon proceeds to kill Shmarlos, even though another citizen, Shmest, when presented with the same demand, refused to act without a court order. Now suppose that instead of prosecuting Shmerizon for murder, and without denying that what Shmerizon did was clearly illegal at the time notwithstanding the FBI Agent's statements, the government decides that Shermizon should be given retroactive immunity for the murder because he shouldn't be punished for helping out his government in time of need. Even assuming one finds Shmerizon's plight sympathetic, shouldn't the most minimal commitment to notions of government regularity require that any immunity for Shmerizon be coupled with some form of accountability on the part of the FBI Agent or his superiors who asked that Shmerizon commit murder?
  Is the only difference between this situation and the actual current proposal for immunity for the phone companies that violated FISA the fact that we think that murder, even of a bad guy like Shmarlos the Shmackal, is properly illegal, while President Bush and many in Congress think that FISA's restrictions were not just unwise but so grossly unwise as to vindicate anyone who ignored them?
  The answer to Michael's question is "no," and I think Michael's framing reveals a common misunderstanding about the proposed immunity deal. The telephone companies' liability turns out to be pretty different from the oft-debated question of whether the "Terrorist Surveillance Program" was legal. As a result, I think the immunity agreement is not quite the outrage many people in the blogosphere seem to think it is. To see why, we need to get a bit into the weeds of the surveillance statutes (oh goody!, you're thinking), but I hope it will be worth it to understand what's going on.

  Let's start with the lawsuits involving the so-called Terrorist Surveillance Program, the warrantless wiretapping program disclosed by the New York Times in December 2005. These lawsuits have long had a major hurdle, the existence of 18 U.S.C. 2511(2)(a)(ii)(B), a provision exempting the phone companies from liability for warantless monitoring if the Attorney General gives them a certification concluding such monitoring is legal. Here's what it says:
Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with— . . . a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required[.]
  Under this exception, the phone companies are "off the hook" (so to speak) if they received the proper certification. Once they have the certification, they can help the government without triggering any liability. (In case you're wondering, I believe "persons authorized by law" means government agents, not persons doing something that in fact turns out to be lawful.) That's a really important exception, as press reports have indicated recently that the government did in fact provide the phone companies with a certification signed by the AG that no warrant or court order was required. (Unfortunately I don't have a link, because the clearest statement of this was something I heard on NPR a few days ago; I couldn't find the link to a good report on it, but I can search more if others doubt that there was in fact a certification.)

  Given 18 U.S.C. 2511(2)(a)(ii)(B), I think immunity for the lawsuits against the telcos has very different stakes than just the legality of the TSP. Assuming the accuracy of the press reports stating that there was a certification, Congress has already explicitly provided immunity for the telephone companies in these sorts of circumstances. The role of the immunity agreement is just to cut the litigation short that would prove the point.

  Consider how the lawsuits might play out without an immunity deal. The key item for discovery is of course the certification, which presumably explains the program and states the AG's conclusion (whether correct or not, and presumably without any reasoning) that the program is legal. The plaintiffs will say that they need to see the actual certification because they don't know if what the phone companies did is consistent with it; the government and the telcos will say that the state secrets privilege blocks the certification's disclosure. Assuming the certification explains the parameter of the program, that will surely be correct. Then the trial judge has to figure out if he can determine if the program actually did fit within the parameters of the certification, although he can't very well allow discovery into the program without once again running into the state secrets privilege. So presumably down the road the judge concludes he has to dismiss the claim under the state secrets privilege, and then the lawsuit spends another 5 years bouncing around the appellate courts until other courts agree. And then multiply that by all the other lawsuits, all of which presumably lead to the same outcome.

  We don't know all the facts, obviously, and maybe I'm just missing something obvious. But if I'm in the right ballpark, it seems to me that immunity agreement just cuts short the litigation that should end up being dismissed anyway without new legislation.

  My sense is that the proposed immunity agreement would have a more significant role with lawsuits involving the NSA Call Records program, the program involving voluntary disclosure of non-content records. A certification isn't enough here, because the disclosure of non-content records is not covered by 18 U.S.C. 2511(2)(a)(ii)(B). Here the key statute is the Stored Communications Act, which (to simplify things a bit — details here and here) bases liability on the provider's good faith belief that there was an emergency that allowed the disclosure.

  The immunity language in the proposed statute is limited to cases in which the telco was "described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (I) authorized by the President; and (II) determined to be lawful." If I had to guess, I would guess that the head of the NSA or the AG or someone wrote a written request to the phone companies asking them to participate and disclose their call records, and explaining that they thought there was an emergency that authorized the disclosure. The phone company lawyers presumably determined that on the basis of the government's request they had a good faith belief that there was in fact an emergency.

  If I'm right about this, the effect of the immunity deal would be to cut short the inquiry into the individual telephone companies' good faith in disclosing the records. I don't know exactly how you determine the good faith of a corporate entity, but presumably that requires some sort of hearing into the minds of the key decisionmakers. I suppose they would have to take the stand and testify as to what they were thinking, and a jury would have to say if the thought the corporate bigwigs had a good faith belief (and therefore there was no liability) or lacked such a belief (in which case the liability could go a long way toward bankrupting the telcos).

  If I'm right about this, I think the impact of an immunity deal would be to (a) cut short TSP litigation that won't be going anywhere anyway, and (b) to block the telcos from being subject to a "bet the company" lawsuit hinging on their good faith. I think there are arguments for or against the immunity in light of these stakes. But I don't think it's a case of immunizing the telephone companies for a blatantly illegal act, as Professor Dorf suggests with his analogy to a hypothetical murder.

  UPDATE: It occurs to me that the call records litigation would also raise major state secrets problems if the government officials told the telco folks some important details of investigations in order to persuade them that there was a real emergency justifying disclosure. If the NSA said something like, "we're tracking the following attacks, and we foiled this one and we need your help with that one" then those details would be highly relevant to show the telcos' good faith. That means you can't really get to the officials' good faith without getting into the details (in open court) of what the government told the telcos.

Thursday, December 20, 2007

What Next for Federal GHG Emission Rules?

Does the new energy legislation and the EPA's decision to deny California a waiver under the Clean Air Act have any effect on the federal government's plans to adopt federal controls on vehicular emissions of greenhouse gases? Perhaps. A key provision in the new energy bill requires an increase in automotive fuel economy over the coming decades. One effect of these standards will be a reduction in automotive emissions of carbon dioxide. Given the effect of this provision, it might provide the Administration with a convenient excuse not to proceed with federal GHG emission regulations in response to Massachusetts v. EPA.

Is this just speculation? Maybe not. The tail end of this Washington Post story on the denial of California’s waiver request contains this little tidbit:

When asked whether the energy law represents the administration's full response to the challenge of global warming, [EPA Administrator Johnson] replied, "Certainly for motor vehicles this is a comprehensive solution."
Given this reply, I would not be at all surprised were the EPA’s response to Mass v. EPA nothing more than the adoption of regulations that track the fuel economy requirements of the new energy legislation, but achieve no additional reductions. If so, this is another EPA decision on climate change policy that could end up back in court.

UPDATE: The LA Times reports the Administration is reconsidering its obligation to set federal greenhouse gas emission standards for new motor vehicles in light of the new energy legislation. While I would be surprised were the administration to do nothing at all, I would not be at all surprised to see the EPA issue federal emission controls that track the fuel economy requirements of the new energy law, and this would achieve the same result as doing nothing at all.

Alternative Views of the EPA Waiver Decision:

My interpretation of the Act and relevant language places me at odds with some of the folks cited in this Washington Post story about the EPA's decision to deny California a waiver of Clean Air Act preemption. For example:

"By refusing to grant California's waiver request for its new motor vehicle standards to control greenhouse gas emissions, the administration has ignored the clear and very limited statutory criteria upon which this decision was to be based," said S. William Becker, executive director of the National Association of Clean Air Agencies, which represents officials in 48 states. "Instead, it has issued a verdict that is legally and technically unjustified and indefensible."

EPA's lawyers and policy staff had reached the same conclusion, said several agency officials familiar with the process. In a PowerPoint presentation prepared for the administrator, aides wrote that if Johnson denied the waiver and California sued, "EPA likely to lose suit."

If he allowed California to proceed and automakers sued, the staff wrote, "EPA is almost certain to win."

That advocates on one side of the issue seek to spin the statutory language in one way or the other does not surprise me. Industry and environmental advocates do this all the time, particularly when they expect the issue to end up in court. Hyperbolic assertions ab out “clear” statutory text are common in this context.

I am also not troubled by the reference to internal agency conclusions. In my experience, the legal judgments of the career attorneys in the Justice Department’s Environmental and Natural Resources Division tend to be more objective than those in the agency itself. The EPA’s record in federal court is not a particularly good one, in either this administration or its recent predecessors. The agency has a long record of adopting legal interpretations that do not hold up in court, despite the assurances of career agency personnel. In this case, I suspect the agency staff thought the waiver should be approved, perhaps because they had approved so many waiver requests from the past and seek greater regulation of greenhouse gases, and allowed this view to color their interpretation of the Act.

As I noted in my other post, however, my argument is not that the agency will necessarily win when this decision is challenged in federal court. It is possible that the agency did not adequately defend what is an utterly defensible legal conclusion. It is also possible that a reviewing court will get the question wrong, perhaps due to the atmospherics created by other recent climate change decisions, including the Supreme Court’s rejection of EPA’s position on climate change in Massachusetts v. EPA. I will not make an actual prediction until I’ve read the EPA’s formal decision and the legal briefs filed for and against the decision.

For a slightly different take on the EPA’s decision, and eventual legal challenge, See John Bonine’s Daily Kos diary and Jamison Colburn’s post on Dorf on Law. For other views contrary to mine, be sure to check out the numerous relevant posts on the Warming Law blog as well.

EPA's Decision to Deny California's Waiver Request:

In my view, the EPA’s decision to deny California’s application for a waiver of preemption under the Clean Air Act for the state’s greenhouse gas emission controls for new motor vehicles was good law, if questionable policy. The EPA’s conclusion that California was not entitled to a waiver of preemption is utterly defensible under the Clean Air Act. Assuming the agency adequately explained the basis for its conclusion, I find no legal fault with the EPA. This does not mean that the agency’s decision made for good policy, however. Assuming that the agency’s action was not compelled by the statutory text, I also believe that the EPA could have adopted an alternative reading of the act under which the waiver could have been granted. Insofar as I favor giving states greater leeway to experiment in environmental policy, granting California’s waiver would have made for good policy – and would have been preferable to adoption of the federal energy legislation recently passed by Congress and signed into law.

In announcing the denial of California’s waiver application for waiver of preemption, the EPA explained that the Bush Administration was “moving forward with a national solution to reduce greenhouse gas emissions from motor vehicles.” Explicit in the agency announcement was a preference (shared by the auto industry) for uniform federal emission standards for motor vehicles. The agency also cited the newly enacted federal energy legislation that will increase federal fuel economy standards (and thereby reduce carbon dioxide emissions) over the coming decades (albeit at a slower rate than would have been required under the California rules.

EPA Administrator Stephen Johnson explained that federal uniformity is preferable to “a confusing patchwork of state rules.” This is the rationale for federal preemption of state standards in the first place. The invocation of a “patchwork” is a bit inapposite here, however, as there would be no “patchwork” of variable rules from state to state, as approval of California’s request would still have left states with only two choices: adopt the California rules or settle for the federal floor. The word “patchwork” implies that each state could choose its own standard, making each jurisdiction different from all the others, much like the panels of a patchwork quilt are highly varied. A better metaphor would have been that of a checkerboard, or some other dichromatic distribution.

The Administration’s stated preference for a uniform standard clearly motivated its decision, but it is not a legally sufficient basis for denying a waiver under the Clean Air Act. Rather, the law is quite specific as to what factors are to be considered when evaluating a waiver request. Under Section 209(b)(1), California must first make a threshold determination that its proposed standards “will be in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” Once such a determination has been made, Section 209(b) provides that the EPA must deny the waiver request if it finds that (a) California’s threshold determination was “arbitrary and capricious”; (b) California “does not need such State standards to meet compelling and extraordinary conditions; of (c) California’s proposed standards and enforcement measures are inconsistent with other Clean Air Act requirements. An EPA finding that any one of these three criteria is met is grounds for denying California’s waiver request.

Of these, only one finding is potentially at issue: Whether California needs its own greenhouse gas emission controls on motor vehicles “to meet compelling and extraordinary conditions.” Although I have not yet seen the formal petition denial, the EPA announcement suggests that this was the legal basis for rejecting the request (and distinguishing this waver request from the dozens of such requests that the EPA has approved in the past).

California’s current waiver request is distinct from all prior requests. Previous waiver petitions covered pollutants that predominantly impacted local and regional air quality. Greenhouse gases are fundamentally global in nature, which is unlike the other air pollutants covered by prior California waiver requests. These gases contribute to the challenge of global climate change affecting every state in the union. Therefore, according to the criteria in section 209 of the Clean Air Act, EPA did not find that separate California standards are needed to “meet compelling and extraordinary conditions.”
As I have explore at some length in this paper, the EPA would appear to be on strong legal ground in reaching this conclusion. Given the global nature of climate change, California cannot claim that it needs these measures (or any other emission controls) “to meet compelling or extraordinary conditions.” Nothing California does to control greenhouse gas emissions from new motor vehicles will mitigate the threat of climate change to the state in any meaningful way.

Prior waivers were granted when California sought to control emissions that contributed to the Golden State’s particularly severe urban air pollution problems. In these cases, California could claim that state-specific measures were necessary components of state-level plans to meet federal air quality standards within the state. California’s extreme air pollution problems were the “compelling or extraordinary conditions,” and the measures were “needed” to “meet” these conditions insofar as they would facilitate California achieving its goal of reducing instate air pollution.

Global climate change presents a different type of problem, however. It is a global phenomenon caused by the accumulation of greenhouse gases throughout the global atmosphere. Unlike with ambient air pollution, such as soot or smog, a local jurisdiction has no control over local emission concentrations because the relevant gases disperse throughout the atmosphere. Nor do local jurisdictions have any control over ambient temperature, as global climate change is a consequence of the global accumulation of greenhouse gases.

California policy makers sought to get around this problem by pointing to anticipated California-specific effects of global warming, such as local sea-level rise. It is certainly true that California will face certain consequences of climate change that will not be faced by all other states. It is even conceivable (though hardly demonstrated) that California is uniquely threatened by climate change to a greater extent than any other state. This does not matter, however, as California cannot claim that its proposed vehicle emission controls are necessary to meet these concerns, as they will not achieve any meaningful protection for the state. No matter how much California wishes to be a climate policy pathbreaker, that is insufficient to meet the language of the Act under this interpretation.

I readily admit that there is some ambiguity in the language of 209(b), and there are reasonable interpretations of this language that could justify approving California’s waiver request. The problem for California, however, is that insofar as this language is ambiguous, federal courts are required to defer to the EPA’s reasonable interpretation under “step two” of the familiar Chevron analysis. Thus, provided that the agency has dotted its “i"s and crossed its “t”s in the formal decision, adequately explaining the basis for its interpretation and its resulting conclusions, the waiver denial should survive the inevitable legal challenge from California and other states that wanted to adopt more stringent vehicle emission controls.

To be clear, my point here is not that the EPA was required to deny California’s CAA waiver request, nor am I making a specific prediction about future litigation over this decision. Rather I am making the more modest claim that the language of Section 209(b) could well be interpreted in a way that would justify, if not compel, the agency’s decision, and hold up in court.

More on the Judicial Education Bill:

First, two corrections. The GMU Law and Economics Center used to keep its donor list confidential, but now discloses its donors to comply with a rule passed by the Judicial Conference of the United States in 2005. Also, I quoted John Fund as stating that the bill provided a flat ban on attending private judicial education seminars. Now that Orin has located the text of the bill, it seems clear that judges can attend any seminar they want, so long as the pay their own way.

Finally, I thought it would be worth more specifically noting what the bill would be protecting judges from, at least with regard to George Mason's LEC. Here is a list of the judicial education seminars (those not co-sponsored with circuit or state court orgainzations) planned for 2008:

Civil Society


Lincoln as President

Culture and Markets


Mill On Liberty

The Federalist Papers

Economic Analysis of Law

Science in the Courts

According to the LEC website, "LEC programs are either five-day institutes or two-day colloquia. Our institutes feature 21 hours of lectures or seminars over five full days, with about 500-700 pages of readings. LEC colloquia are conducted seminar style, with 7.5 hours of class time and about 250-300 pages of readings." Furthermore,

Our curriculum, faculty, invitation list and acceptance policy are determined solely by full time professors at George Mason University School of Law. Our contract letter with lecturers enjoins them to stay away from hot-button topics such as affirmative action. As well, our lecturers do not talk about tobacco, asbestos litigation, environmental issues or the like. When we discovered that a corporate donor had asserted in 1999 that they viewed us as key allies, we returned its contribution (about 0.003 of our support).

Our reimbursement policy covers only reasonable expenses. We assume the costs of lodging and meals at the conference site (on average about $350 per diem), and also reimburse for travel expenses up to a maximum of $500. Spouses are welcome as auditors, but we do not reimburse for any of their expenses. We do not sponsor or subsidize any entertainment or recreational events at our programs, which are academically intensive and demanding. Shortly after each program, we send to all participating judges a statement of the dollar value of the hotel and meals expenses.

[Rosemary Mariner, guest-blogging, December 20, 2007 at 5:54pm] Trackbacks
The Americanization of the Armed Forces-Response to Comments:

[Duplicate post deleted. If you commented on this post, please repost the comments on the post immediately above this one, since it makes sense for the comments to all be one thread. -EV]

[Rosemary Mariner, guest-blogging, December 20, 2007 at 5:54pm] Trackbacks
The Americanization of the Armed Forces-Response to Comments:

As always, a lively discussion. I appreciate the courtesy and will clarify a few points.

First, Soviet women in the Red Army went all the way to Berlin. While women fought in other occupied nations, notably Poland and Yugoslavia, only the Soviets sent military women outside the country.

As to why the Soviets "de-integrated" after the war, there are several theories. Some attribute it to sexism; it was O.K. for women to fight when the chips were down. Under peacetime conditions, they should return to traditional roles, like building roads for the state.

I think the greatest factor was the overwhelming desire of men and women to go back to a normal life and raise families. The vast majority of combatants in the Great Patriotic War were citizen-soldiers, not professionals. In the aftermath of a horrific German occupation, with an estimated 20 million dead, few veterans wanted anything more to do with warfare.

Both men and women were tremendously proud of their wartime service. It was common for civilians to wear their medals for public events.

This gets to the issue of motivation, especially the distinction between "cause" (why people join up to fight) and "comrade" (what motivates people under fire).

Second, the issue of recruiting standards. While the basic standard is gender neutral (everyone takes the same test and is categorized the same) under combat exclusion policies, who is actually enlisted is a different story. With separate assignment policies for men and women, recruiting goals are often driven by gender because women aren't universally assignable. This leads to all kinds of differences in the way people are accessed and assigned.

For example, if there is a "pink" quota for female truck drivers, but few takers, then a man with a higher AFQT might well be passed over in favor of a woman with lower scores. Conversely, if a woman in the 99 percentile wants to drive tanks but is prohibited by gender, then a man in a lower category might fill the slot. This is just one example why I think these policies are as unfair to men as they are to women.

Hence my fundamental conclusion that service should be predicated on individual merit, not group identity. Segregation practices that create separate forces and assignment criteria (based on race, gender, or whatever) are antithetical to cohesion.

Third, the issue of strength and fitness standards. Again, I recognize that there are positions, especially in ground combat, that require significant strength and fitness. Then define the standard and apply it equally. If few women qualify, then fine.

However, there are reasons why the services are hesitant to do this, and they have nothing to do with women.

There have been numerous studies over the years that attempted to quantify strength and skill requirements for various military tasks. It is not an easy process. Among the most difficult things to get a lock-on is the "heart" factor; sometimes the little guy can do the job better than anyone else. Also, technology is constantly altering the equation.

Perhaps the major reason senior leadership is uncomfortable with establishing strength standards is because service chiefs must also plan for mobilization. In unpopular wars, especially under conscription, strong men (and women) could deliberately fail tests to avoid service. When the services need to expand the force rapidly, standards of all sorts become elastic.

Fourth, the use of psychometrics to screen character traits. Prof. Browne turns the work of psychometrics on its head. The field is all about individual differences and rejects group membership as a substitute for estimating psychological attributes.

Five, the Roman Republic and her citizen army. Throughout most of the Roman Republic's history, citizenship had a property requirement, which was a condition for military service. The backbone of Rome's citizen army was the independent yeoman farmer who provided his own equipment.

Marius's enrollment of the Head Count --a landless mob in Rome that received a grain dole-- into the legions constituted a major departure from the citizen army that conquered the Mediterranean world. This created an effective but highly politicized professional force that gave allegiance to individual generals, --not the Republic. They played a central role in the Roman Revolution, which eventually led to the destruction of the Republic, loss of political liberty, military dictatorship of Caesar Augustus, and the imperial Roman Empire.

Finally, the larger issue of who serves and how, must be viewed from the strategic level as well as the tactical. In peacetime, the services can afford to be exclusive. In wartime, especially when the "cause" is not motivating enough people to enlist, the size of the pool is critical.

Today's forces, including the infantry, are the finest the world has seen. It is an affirmation of the All Volunteer Force that we can debate restricting women because the quality of the force is still high. How long that is the case remains to be seen.

Practictioner Responses to "Four Models of Fourth Amendment Protection": I had hoped that my new article "Four Models of Fourth Amendment Protection" could be useful to scholars, students, judges, and practitioners alike. In light of that, I wanted to flag two thoughtful responses to the article from current practitioners. A while back, Ken Lammers responded to an early draft with this response at CrimLaw. And just today, Scott Greenfield responded to the final version here at SimpleJustice.
Responses to " The Blawgosphere in 2007": Several law bloggers have chimed in with interesting responses to my post yesterday on the possible stagnation in the blawgospere in 2007. Paul Caron has collected some facts; Dan Solove has some extended thoughts and predictions; Scott Greenfield notes the important role of niche blogs; and both Brian Leiter and Glenn Reynolds share more brief responses.

  UPDATE: Carolyn Elefant weighs in at Legal Blog Watch. Also, for a look back on my prediction of where the blawgosphere was going from back in October 2005, see here.
The Strange Effort to Limit Judicial Education: David B. blogs below about an amendment to limit judicial seminars; I have posted the text of the amendment here. As I read it, there are two parts. The first part caps the value of reimbursement for a judicial trip at $1,500 per trip, and $5,000 per year total unless it is officially sponsored by one of the listed official allowed sponsors. The second part bars all reimbursement for any trip if a significant purpose is "judicial education" unless it is officially sponsored by one of the listed official allowed sponsors.

  I have to say, I find this pretty bizarre. The first part seems designed to keep judges from taking reimbursed trips far away for more than a day or two (as at that point the value is likely to exceed $1,500). Or, if they want to stay for more than that, they need to start paying their own way or stay at a cheaper hotel. The second part is even weirder, as it seems to want to make sure that judges aren't educated unless it's a Congressionally-allowed group doing the educating. I guess the last thing you want is judges bein' too edumucated!

  I find the "approved groups" in the amendment rather strange, too. If a group of defense attorneys wants to put on a conference to teach judges about the intricacies of criminal procedure law, the judges have to pay their own way — every penny. On the other hand, if the Justice Department wants to put on the same conference for judges, slanted in the government's direction, it can be 5-star hotels and golf all around. The only way the defense attorneys can get around the bar is by forming (or taking over) a "subject matter bar association," which then restores their ability to offer reimbursement.

  What a strange amendment. I certainly hope it ends up going nowhere.
Bill Aims to Prevent Federal Judges from Reading the Volokh Conspiracy:

From now on, federal judges will only be allowed to read blogs sponsored by the Federal Judicial Center, a government organization.

Well, not quite, but pending legislation does aim to prevent federal judges from attending seminars put on by George Mason's Law School's Law and Economics Center, among other educational centers. According to John Fund, who provides a detailed critique, the bill "would flatly ban federal judges from attending anything other than a government-sponsored program" [but see update beow].

If so, why let federal judges read the Volokh Conspiracy (and I know several prominent federal appellate judges who do)? After all, though most of us conspirators teach at state schools, we have not been vetted by the FJC. Three of us even teach at George Mason, and receive Summer research funding from the LEC. And as for the red herring of "corporate funding" (the LEC, for example, gets less than 10% of its funding from corporations, and does not disclose the funders, so there will be no question of quid pro quo), have you noticed that the VC carries ads? Sure, the VC doesn't provide transportation or accommodations, but we do provide the best legal commentary on the web for free. Given the implicit value of our time, this is much more valuable than an off-season stay at a resort. And we don't even demand that judges spend many hours doing background reading, unlike the LEC!

This whole non-issue has been stirred up by Doug Kendall's Soros-funded Community Rights Council. Recall that Kendall filed an ethics complaint against Sixth Circuit Judge Danny Boggs for serving on the board of FREE, a Montana-based free market environmentalist group that, among other things, runs education seminars for federal judges. Chief Judge Loken rejected the complaint, and wrote, "Reasonable people, unlike the complainant, do not presume a lack of integrity and impartiality from a judge's association with legitimate judicial education, no matter how controversial." And later (alluding also to related allegations against D.C. Circuit Judge Doug Ginsburg): "there is no factual foundation to support an inference of wrongdoing by anyone ... Rather these allegations typify the character assassination that is all too common in our nation's capital.... By use of this tactic, it is the complainant who is undermining public confidence in the integrity and impartiality of the judiciary, not the judges complained of."

UPDATE: Tim Dowling from the CRC writes to point out that under the proposed legislation, federal judges would be able to attend (and receive travel reimbursements for) any "CLE sponsored by any bar association, any judicial association (including the National Judicial College and Federal Judicial Center), subject-matter bar associations, and the ABA's Judicial Division." Makes sense, because we all know that bar associations only have the public interest in mind, don't serve the cause of any particular interest group (such as attorneys...), and never take positions on controversial issues, right? And the Federal Judicial Center has money that grows on trees, and therefore is not susceptible to political pressure because Congress provides no funding, right? Well, anyway, we all know that giving government and self-serving interest groups a monopoly over any sort of education is the way to achieve high quality, apolitical, effective education.

Snarkiness aside, I'm puzzled by the inclusion of the NJC in the exemptions, given that it's a private 501(C)(3) organization that accepts donations from private sources, just like, say, the LEC. Among its donors are Exxon Mobil, Dow Chemical, and a couple of tort reform groups. Sounds to me like the CRC is not standing for any principle here other than wanting to shut down the LEC and FREE. [Besides receiving funding from Congress, the FJC also receives funding from private, and at times highly ideological sources, e.g., the Ford Foundation, which it actively solicits.]

Related Posts (on one page):

  1. More on the Judicial Education Bill:
  2. The Strange Effort to Limit Judicial Education:
  3. Bill Aims to Prevent Federal Judges from Reading the Volokh Conspiracy:
[Rosemary Mariner, guest-blogging, December 20, 2007 at 2:10am] Trackbacks
The Americanization of the Armed Forces-Entry Standards, Strength, Fitness, and Cohesion:

The American military does not recruit, enlist, commission, promote, court martial, or entrust command to groups. Although the demonstrated ability to work well within a group is important to unit readiness, especially on the tactical level, selection and performance are ultimately individual functions.

The emphasis on individual qualification starts with the recruiting process. The definition of a high quality recruit includes brains and health, but not brawn.

Entry level standards have been gender neutral since the 1970s. In the aftermath of the Vietnam War, when male propensity to enlist was at a low, high quality female recruits were essential to maintaining the quality of the volunteer force.

The primary measure of aptitude for determining eligibility for enlistment is an individual's score on the Armed Forces Qualification Test (AFQT). The AFQT is designed to measure the trainability of potential recruits and identify individuals unlikely to complete entry level training. It includes sections on math and reading comprehension.

A high quality recruit is defined as a healthy individual with a high school diploma and AFQT scores in the top 50%. There is a strong correlation between the ability to graduate from high school and complete an enlistment contract. These are the same people the civilian labor market desires.

The correlation between high AFQT scores and military performance is also well documented. In 2006 the Army almost doubled the number of Category IV recruits scoring in the 10-30 percentile range.

Age requirements are especially elastic, with the services targeting 17-26 year olds, but expanding the range when demand exceeds supply. Today the Army will take recruits up to age 42.

All recruits must pass a basic physical fitness test and medical exam. While Army positions are assigned a physical demands rating, this is only used to give recruits an idea of what the job entails. The Army does not submit male recruits to physical strength tests before assigning them to ground combat positions.

No tests are given to measure courage, spirit, motivation, commitment, aggressiveness, maturity, affability, or other character traits. Waivers may be granted for certain criminal records.

The inclusion of women, a majority of the military age population, to the recruiting pool enhances the military effectiveness of the force by maximizing the human capitol that can be drawn from.

While female propensity to enlist tends to be lower than men surveyed, the addition of women to the pool is significant. This is especially true in a difficult recruiting market; it would be that much more important should the nation face a full mobilization.

Strength vs. Fitness Standards

In tasks that objectively require physical strength, quantifiable standards should be established. The argument that too few women would qualify to make it worth while begs the question, by what standard? How many women is enough, according to whom? When individual capability is the criteria, the degree of overlap doesn't matter.

Many demanding military tasks involve skill, not strength. Training programs teach skills as well as establishing if a person is strong enough to do the job.

An individual man or woman who completes flight training or Ranger school is strong and skilled enough by virtue of successfully completing the course. These difficult programs also provide the important "gut checks" which test spirit and commitment.

Prof. Browne's example of a male pilot requiring all his strength to land a damaged airplane as justification to exclude women from combat aircraft is just plain silly.

First, it ignores the fact that women have flown all types of aircraft since the beginning of aviation, including under much worse conditions. Second, it is analogous to saying that if Arnold Schwarzenegger used all his strength to keep from crashing his Hummer, only people like Arnold should drive.

The notion that pilots shot down behind enemy lines become infantrymen is equally nonsensical. Not only have women done that too, but I don't know of any aviator POWs making such claims. These are survival, escape, resistance, and evasion situations.

Finally, physical fitness tests do not measure strength. Fitness standards are designed to ensure a person's health; they are properly age and gender-normed. If more fitness is required, than raise the standards for everyone.


From the Revolutionary War to WW I, the primary method of raising ground forces was to call forth the militia. During most of the nineteenth century local communities raised regiments which were enlisted into federal service as the U.S. Volunteers. Depending on the state, regiments elected their own officers while governors appointed senior officers. Militia units had built in cohesion; often soldiers were related or had grown up together.

Unlike the militia, the Continental Army (and later the U.S.Army) had to create a cohesive force from disparate troops. Beginning at Valley Forge, under Friedrich von Steuben's leadership, the Continentals drilled and trained together to emerge a greatly improved fighting force. Since then, the armed forces have been well aware of the connection between leadership, cohesion, and the precept that you train as you fight.

The introduction of women has not changed the principle that cohesion is a function of leadership, shared experiences, common identity, and purpose, --not homogeneity. Discipline must overcome emotion, and gender is not an excuse for misconduct. Commanders set the tone and the example for everything under their authority. This is key to the U.S. military's professional ethos.

Prof. Browne's assertion that having women in military groups adversely affects cohesion is not supported by research. A 1997 RAND study conducted to assess military effectiveness after the expansion of women's roles concluded "that divisions caused by gender were minimal or invisible in units with high cohesion." A 1999 GAO report on perceptions of readiness in selected units opened to women in 1993 concluded: "most men and women agreed that women either affected readiness no differently from men or affected readiness positively or very positively."

The published research suggests that gender itself has no affect on cohesion in military groups.


Wednesday, December 19, 2007

GOP Race Wide Open: Two new polls suggest that the race for the GOP Presidential nomination has become wide-open in the last week or so. See stories on the latest Reuters poll here and the latest WSJ/NBC poll here.
EPA Denies California's Waiver Request:

Earlier today, the EPA denied California's request for a waiver of preemption under the Clean Air Act for California's regulation of greenhouse gas emissions from new motor vehicles. Based upon the EPA release, the passage of a federal energy bill that will impose more stringent automobile fuel economy standards is one of the justifications for rejecting the waiver. There is no question that California will challenge this decision in federal court (see here). Whether or not California succeeds will largely depend upon how well the Bush Administration defends its decision. As I've argued before (see also here), I think that there are reasonable legal arguments supporting a denial of a waiver. Nonetheless, I am surprised by the Bush Administration's decision.

I hope to have more to say about this decision once I have read the formal decision. In the meantime, here is news coverage from the Los Angeles Times and New York Times. Here, also, is Governor Schwarzenegger's response.

Can You Get Away With Committing a Hate Crime Hoax?

Conservative columnist John Leo notes that "fake hate crimes, like the one just perpetrated by Princeton student Francisco Nava, are quite common on college campuses." He urges both liberals and conservatives to be more skeptical about reported on-campus hate crimes targeting their respective sides.

If fake hate crimes really are becoming common, the interesting question is why. After all, if the perpetrator gets caught, his reputation is likely to take a major hit and the cause he espouses will suffer a setback in the court of public opinion. For example, Francisco Nava is now a pariah to the Left; conservatives are likely to be wary of him as well, for fear of being tainted by association with him. And Nava's actions have surely damaged the cause of conservatism at Princeton far more than they helped it.

Why then, do, the Navas of the world perpetrate fake hate crimes that are likely to harm both themselves and their cause? One possibility is that most such people are irrational or stupid and don't realize that their hoaxes are likely to be exposed. That may well be what happened in Nava's case.

The other possible explanation is far more troubling: perhaps it's easier to get away with a hate crime hoax than we think. For every Nava who gets caught, maybe there are several other hate crime scam artists who get away with it. Although it's difficult to effectively fake an assault (as Nava tried to do), it's probably easier to fake threats, racist graffiti, nooses, and the like. If the perpetrator is smart, it may be hard to prove that he planted these kinds of items himself. If hate crime hoaxes actually have a good chance of succeeding, then it is not irrational or stupid for the perpetrators to commit them. Ex ante, the risk of getting caught may be outweighed by the expected benefits to the perp and his cause if he succeeds.

By definition, it's tough to detect a successful hoax; after all, if it's been detected, that means it's no longer a success. Nonetheless, it is at least possible that the rash of failed hate crime hoaxes is an indication that others may have succeeded.

Related Posts (on one page):

  1. Can You Get Away With Committing a Hate Crime Hoax?
  2. Staged College Hate Crimes:

With the TV trailers piquing my interest, I decided to learn more about the background of the new Denzel Washington movie, The Great Debaters:

From two-time Academy Award winner Denzel Washington and an ensemble cast [led] by Washington that includes Academy Award winner Forest Whitaker, comes THE GREAT DEBATERS. Inspired by a true story, THE GREAT DEBATERS chronicles the journey of Professor Melvin Tolson (Denzel Washington), a brilliant, but volatile, debate team coach who uses the power of words to shape a group of underdog students from a small African American college (Wiley College) in the deep south into a historically elite debate team. A controversial figure, Professor Tolson challenged the social mores of the time and was under constant fire for his unconventional and ferocious teaching methods as well as his radical political views.

In the pursuit for excellence, Tolson's debate team receives a groundbreaking invitation to debate Harvard University's championship team.

Wiley College’s account of the factual background includes this revelation:

According to James Farmer, Tolson's drive to win, to eliminate risk, meant that his debaters were actors more than spontaneous thinkers. Tolson wrote all the speeches and the debate team memorized them. He drilled them on every gesture and every pause. Tolson was so skilled at the art of debating that he also figured out the arguments that opponents would make and wrote rebuttals for them--before the actual debate. . . .

In 1935, he led the Wiley Debate Team to the national championship to defeat the University of Southern California before an audience of eleven hundred people.

Wiley College should be commended for posting such a candid account of one of their most famous and accomplished faculty members. I haven’t been able to determine if the Wiley team ever debated Harvard, or instead whether in the movie Harvard was substituted for USC.

Wanting to know more about Tolson, I read a fascinating account by David Gold of Tolson’s impressive pedagogical techniques, an article that unfortunately did not discuss his composition of his debaters’ arguments. It appears that Tolson was extremely devoted to teaching his students to argue and write (using a teaching style that bore some relation to Professor Kingsfield’s in The Paper Chase):

In coaching debate, he stressed the logical fallacies, always seeking to find the “crack” in the other team’s strategies. He trained students by having them debate him for up to a year before allowing them to join the team and by playing the devil’s advocate in any discussion. When he exhausted his own copious body of knowledge, he would bring in faculty from other fields to challenge his students.

One can get a sense of Tolson’s politics from reading his opinion of conservatives:

“Conservatives have stood for prostitution, blood-letting, polygamy, illiteracy, ignorance, witch-burning, voodooism, piracy, plagues, child labor, social diseases, and cannibalism.”

“If a man isn’t a liberal or a radical, he is a joke or a foggy among intelligent Folk.”

The Blawgosphere in 2007: In the 2003-06 period, it looked like the blawgosphere -- the part of the blogworld devoted to law blogs -- was expanding rapidly and becoming more and more important. As 2007 comes to an end, however, I think we can see a very different picture for 2007. For the most part this was a year of little growth or even a slight decline among law blogs.

  The major new blog was David Lat's Above the Law, which has quickly become highly trafficked. But there were surprisingly few new blogs that took off, and many more blogs that looked bright in 2006 but became mostly or entirely dormant in 2007. Most of the major blogs have kept going, and readership on the whole has been roughly stable. But my sense is that there hasn't been a lot of growth in overall law blog postings and readership.

  What happened? Perhaps law blogging has hit a saturation point. Only so many people are interested in reading these sorts of things, and maybe that crowd is pretty stable and hard to grow. Alternatively, perhaps the problem is declining blogger enthusiasm: I would guess a lot of people thought law blogging looked fun until they tried it and realized it was a lot of hard work.

  Maybe both? What do you think?
More on Encryption, the Fifth Amendment, and the "Foregone Conclusion" Exception: My Friday post on the Fifth Amendment and encryption discussing the Boucher case led to a very long and interesting comment thread, including several comments from readers who thought it clearly wrong to say that Boucher could be required to enter in the password even if no one doubted that he knew it. The basic argument was that entering in the password had a testimonial aspect to it, and the government could never compel someone to take those steps in a way that would hurt him in a criminal case — in Boucher, by leading the police back to the evidence on the hard drive.

  In this post, I want to explain why I tend to disagree. It's my understanding that if the government already knows that Boucher has the password, having him enter it in generally does not implicate the Fifth Amendment privilege. Just to be extra clear, I'm not saying that I like the law this way, or that this is my personal theory of what the Fifth Amendment should mean. Rather, I'm saying that I think this is the correct result under existing caselaw. (So if you disagree, it's probably best to make your arguments in terms of cases, not Universal Principles of Justice.)

  The key precedent here is Fisher v. United States, 425 U.S. 391 (1976), in which the Supreme Court considered whether the government could subpoena records involving the preparation of a person's taxes by his accountant over a three year period from the suspect himself, who was suspected of tax fraud. The Court concluded that the Fifth Amendment did not bar such a subpoena, even though responding to the subpoena would indicate the person's knowledge and control of the records and even though the government wanted to use the records to prove his guilt for tax fraud. Here's why:
  Surely the Government is in no way relying on the "truthtelling" of the taxpayer to prove the existence of or his access to the documents. 8 Wigmore § 2264, p. 380. The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, "no constitutional rights are touched. The question is not of testimony, but of surrender." In re Harris, 221 U. S. 274, 279 (1911).
  When an accused is required to submit a handwriting exemplar, he admits his ability to write and impliedly asserts that the exemplar is his writing. But in common experience, the first would be a near truism, and the latter self-evident. In any event, although the exemplar may be incriminating to the accused and although he is compelled to furnish it, his Fifth Amendment privilege is not violated, because nothing he has said or done is deemed to be sufficiently testimonial for purposes of the privilege.
  Under Fisher, courts have to make a judgment call about how much the testimonial component of the act of production will really add to the government's case. If the subpoena makes the target state some important fact that the government didn't know, then it's unconstitutional. See, e.g., United States v. Hubbell, 530 U.S. 27, 44-45 (2000), in which the government made the target collect his records, go through them, and identify which of the records revealed his crimes. On the other hand, if the subpoena makes the target testify about something that the government basically knows already, or is pretty unimportant, or could find out another way, then it's not unconstitutional. This is a fact-intensive test, requiring close attention to exactly what the government knows and what is relevant to their case.

Related Posts (on one page):

  1. More on Encryption, the Fifth Amendment, and the "Foregone Conclusion" Exception:
  2. Magistrate Judge Finds Fifth Amendment Right Not to Enter Encryption Passphrase:
Entertainment Rating Systems:

Speaking of movie ratings and the MPAA, William Ford has an extensive post on entertainment rating systems on the Empirical Legal Studies blog. His post was prompted by this study concluding that governmental entertainment rating systems are not necessary, and that private systems tend to be superior.

Related Posts (on one page):

  1. Entertainment Rating Systems:
  2. MPAA Rejects Documentary Poster for Hood Image:
Administration Backtracks on JAG Proposal:

Today's Boston Globe reports "The Bush administration is dropping a plan to take control over the promotions of military lawyers, following an outpouring of alarm over the independence of uniformed attorneys who have repeatedly objected to the White House's policies toward prisoners in the war on terrorism." Among other things, the story notes that the proposal was exceedingly unpopular with retired JAGs, who led criticism of the policy change.

Related Posts (on one page):

  1. Administration Backtracks on JAG Proposal:
  2. Politicizing the JAG Corps:
Woman Convicted of Murder, Sentenced by Jury to Probation and a $10,000 Fine:

The Brownsville Herald reports:

It took jurors two days to deliver their guilty verdict and another three days to sentence [Traci] Rhode to 10 years supervised release. Judge Ben Euresti tacked on a $10,000 fine to her punishment and she was released from the Carrizalez-Rucker Detention Center within a few hours.

“(They waited) for two days before they came out with their guilty verdict because they were not su,” [Rhode's lawyer Ernesto] Gamez suspects .....

She has maintained her innocence throughout the trial, claiming Scott Rhode shot himself in their bedroom while she showered after a morning walk.

The prosecutors counter that Traci awoke at about 5 a.m. on Oct. 15, 2003, and shot her husband with a .45-caliber handgun while he slept.

She went jogging around their Briarwick Subdivision neighborhood then took a bath before calling police to report the shooting, they argued....

Prosecutors alleged that Traci killed so that she could collect her husband’s life insurance policy and continue an affair with a co-worker.

She is the beneficiary of a $600,000 life and accidental death policy for Scott. It was not clear Thursday who would receive those benefits now that she’s been convicted in his death.

“That’s a civil issue that I’m not involved with,” Gamez said. “The monies will probably go to the children, and rightfully so.” ...

A new law passed by the Texas Legislature and effective since Sept. 1 prohibits murderers from receiving community supervised release. The law only applies to cases that take place after the effective date....

This is pretty puzzling to me; the jury convicted, which means they didn't buy the defense's "husband shot himself" theory. But if the wife deliberately killed him, what's the basis for the probation sentence for a deliberate murderer? Is there some factual twist that I'm not aware of (and that my quick searches haven't uncovered for me)? Is the suspicion that this is some odd compromise verdict, with the jury not being sure whether there was reasonable doubt, and deciding to convict but free instead of convicting and imprisoning or acquitting?

Note, incidentally, that Texas is one of several states (about five, I think) that provides for jury sentencing as at least an option in noncapital cases. In most states, sentencing in noncapital cases is done by the judge.

Unconstitutional Rewards:

The AP reports:

Motorists may be in for a surprise if they spot flashing red lights in their rearview mirrors in this Sacramento suburb [Rancho Cordova] during the holiday season.

Police are stopping law-abiding motorists and rewarding their good driving with $5 Starbucks gift cards.

A traffic officer came up with the idea to "promote the holiday spirit and enhance goodwill between the traffic unit and the motoring public," police Sgt. Tim Curran said....

Sweet, but unconstitutional, it seems to me. A police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure — a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable, which generally means (for brief seizures) either that there's reasonable suspicion that the seized person has committed a crime (including a traffic infraction), or that there's some administrative need mandating a particular non-law-enforcement search or seizure system (such as airport screening). Neither is present here, so the stop violates the Fourth Amendment.

Plus, despite my first reaction above, it really isn't so sweet. A police officer is giving you a fright, taking up your time, and likely slowing down other drivers (who are concerned about safety, or who are stuck behind other drivers who are gawking).

As importantly, the police officer is exercising his coercive authority over you. That he's doing it to be nice doesn't change the fact that for the few moments that you're being pulled over, your liberty is being restrained, however briefly. Some such restraints on liberty have to be tolerated, but it seems to me that for each there should be a very good reason. A pat on the back does not, I think, qualify as a very good reason.

For a related story from five years ago, see here. Thanks to Bruce Moldovan for the pointer. Actually, sounds like the sort of thing they'd do in Moldova, not in the Land Of The Free ....

UPDATE: The winner is commenter WHOI Jacket: "When the police state comes to America, it will be holding a Double Mocha Latte."

Saudi Prince Pardons Rape Victim:

The AP reports:

A woman sentenced to prison and a public lashing after being gang-raped has been pardoned by the Saudi monarch in a case that sparked an international outcry, including rare criticism from the United States, the kingdom's top ally. . . .

With the pardon, Abdullah appeared to be aiming to relieve the pressure from the United States without being seen to criticize Saudi Arabia's conservative Islamic legal system, a stronghold of powerful clerics of the strict Wahhabi interpretation of Islam.

The announcement of Abdullah's pardon was published Monday on the front pages of Al-Jazirah newspaper, which is deemed close to the royal family. But it did not appear in any other local media or the state-run news agency _ in an apparent attempt to play down the case at home.

Justice Minister Abdullah bin Mohammed al-Sheik defended the courts, saying the pardon does not mean the king doubted the country's judges, but that he was acting in the "interests of the people." . . .

Amnesty International said the man who was raped received the same sentence as the woman. Al-Jazirah did not mention whether he had been pardoned as well.

The story does not report whether she received her pardon before or after she received the lashes to which she was sentenced.

UPDATE: A commenter notes the Saudi press reports the pardon occurred before any lashes were administered.

Related Posts (on one page):

  1. Saudi Prince Pardons Rape Victim:
  2. Where Are Islam's Silent Moderates?
  3. Justice, Saudi Style:
Brig. Gen. Hartmann Responds to Col. Davis:

In today's Los Angeles Times, Air Force Brigadier General Thomas Hartmann responds to the recent op-ed by former Gitmo prosecutor Col. Morris Davis alleging that the military tribunal process was unfair and unduly politicized. My former colleague Amos Guiora finds Hartmann's essay unresponsive and unpersuasive.

MPAA Rejects Documentary Poster for Hood Image:

The MPAA has deemed the one-sheet for the documentary "Taxi to the Dark Side" too provocative for general audiences. Why? The poster for the documentary on torture depicts a hooded prisoner walking between two soldiers. Apparently the MPAA does not allow posters with hoods of this sort.

An MPAA spokesman said: "We treat all films the same. Ads will be seen by all audiences, including children. If the advertising is not suitable for all audiences it will not be approved by the advertising administration."

According to ThinkFilm distribution prexy Mark Urman, the reason given by the Motion Picture Assn. of America for rejecting the poster is the image of the hood, which the MPAA deemed unacceptable in the context of such horror films as "Saw" and "Hostel." "To think that this is not apples and oranges is outrageous," he said. "The change renders the art illogical, without any power or meaning."

The MPAA also rejected the one-sheet for Roadside Attractions' 2006 film "The Road to Guantanamo," which featured a hooded prisoner hanging from his handcuffed wrists. At the time, according to Howard Cohen, co-president of Roadside Attractions, the reason given was that the burlap bag over the prisoner's head depicted torture, which was not appropriate for children to see.

"Not permitting us to use an image of a hooded man that comes from a documentary photograph is censorship, pure and simple," said producer, writer and director Gibney. "Intentional or not, the MPAA's disapproval of the poster is a political act, undermining legitimate criticism of the Bush administration. I agree that the image is offensive; it's also real."

ThinkFilm plans to appeal the ruling, although Urman admitted that he "doesn't know what that entails. I've only appealed ratings before."

If the hood is indeed the reason that the MPAA rejected the poster, it is a ridiculous example of elevating form over substance. Given the one-sheets for various horror movies out there, including "Saw", "Captivity", and "The Hills Have Eyes 2," [Wait, is that a hood? No, it's a sack cloth, so it's okay] the idea that this image is too rough for children is just absurd.

Related Posts (on one page):

  1. Entertainment Rating Systems:
  2. MPAA Rejects Documentary Poster for Hood Image:
Should We Care if Condorcet Winners Lose Presidential Elections?

In my last post, I explained why Condorcet winners often lose presidential elections by getting eliminated in the primaries. In this post, I want to consider the more difficult question of whether we should care.

One possible reason to care is that the electoral defeat of a Condorcet winner violates what many consider to be the core democratic principle of majority rule. If Candidate A wins the election despite the fact that B is the Condorcet winner, that necessarily indicates that A has won even though the majority of the people actually prefer B. In discussing this issue with students and other nonexperts, I have observed two common reactions: some people find this result deeply disturbing while others couldn't care less. Very few seem to fall in the middle. The difference between the two groups seems to be based more on intuition than logic. Since I myself am one of the few people with an equivocal reaction, I'm going to move on to more pragmatic concerns.

Setting aside considerations of democratic theory, there might well be pragmatic consequentialist reasons for deploring an electoral system that often leads to the defeat of the Condorcet winner. Relative to actual electoral winners, Condorcet winners are likely to be more ideologically moderate and more personally charismatic. The reason for the greater moderation is obvious: as discussed in my last post, primary electorates are more ideologically extreme than general election voters, and will sometimes reject the Condorcet winner in favor of a candidate who they believe matches their ideological preferences better.

The charisma point stems from the fact that ideologically extreme voters (who are disproportionately represented in primaries) are more knowledgeable than centrist voters, a result documented by numerous studies of political information. The less you know about issues, the more likely you are to be influenced by personality and charisma. Thus, on average, the Condorcet winner is likely to be more charismatic than the electoral winner in cases where two differ.

Personally, I'm not particularly enamored of the idea that moderate presidents are better than ideologically more extreme ones. I have even less sympathy for claims that we are necessarily better off with more charismatic presidents. Thus, at least from a purely consequentialist point of view, the electoral misfortunes of Condorcet winners don't bother me too much. However, those who value moderation and charisma more than I do have good reason to decry our current presidential primary system. Likewise for those strongly committed to the idea that democratic principles require adherence to majority rule.

Related Posts (on one page):

  1. Should We Care if Condorcet Winners Lose Presidential Elections?
  2. Why the Next President Might not be a Condorcet Winner:

Tuesday, December 18, 2007

Why the Next President Might not be a Condorcet Winner:

Some economists and political theorists argue that electoral systems should be structured so as to maximize the probability that the electoral winner will also be a Condorcet winner.

I. What is a Condorcet Winner?

Note: If you are an economist or otherwise knowledgeable about voting theory, you should skip this section and move on to Part II.

In plain English, the Condorcet winner is the candidate who can defeat every other candidate in a head to head majority vote matchup. If the candidates in the race are Smith, Jones, and Brown, Smith is the Condorcet winner if he can defeat both Jones and Brown in separate head to head votes. Sometimes, there is no Condorcet winner available. For example, if Smith can defeat Jones, Jones would defeat Brown, and Brown would defeat Smith, none of the three is a Condorcet winner (this kind of scenario is known to game theorists as the Condorcet Paradox).

However, our presidential selection system often fails to choose the Condorcet winner even in cases where one does exist. From the standpoint of democratic theory, this might be considered problematic. If the Condorcet winner ends up an electoral loser, that implies that the electoral winner has prevailed despite the fact that a majority of voters prefer somebody else; that outcome seems to go against the notion that democracy is a system of majority rule.

II. Why Condorcet Winners Often Lose Presidential Elections.

Why would a Condorcet winner ever lose a presidential election? Because before a presidential candidate can have a real chance in the general election, he or she has to win the nomination of one of the two major parties. In the modern nomination system, that means he has to win a large enough number of primaries. Primary voters, of course, differ significantly from general election voters. They are more knowledgeable, but also more partisan and ideologically extreme. As a result, a general election Condorcet winner can easily be eliminated in the party primary because he or she isn't ideologically extreme enough for the primary voters.

This is more than just a theoretical possibility. It has actually happened in recent presidential elections. In 2000, John McCain (whose candidacy, by the way, I don't have much sympathy for) was almost certainly the Condorcet winner. Polls showed that he would easily have defeated both George W. Bush and Democratic nominee Al Gore in a head to head general election matchup. But because Republican primary voters believed (quite possibly wrongly, as it turned out) that McCain was less conservative than George W. Bush, McCain never got that chance.

More speculatively, in 2004, a moderate Democrat such as Joe Lieberman might well have defeated either the very liberal Democratic nominee John Kerry or Bush in a head to head general election matchup. However, Lieberman wasn't liberal enough for the Democratic primary electorate, and so his candidacy was doomed from the start.

I won't go through all the relevant history. But there is evidence to suggest that probable Condorcet winners also got eliminated in the primaries in 1968 (George Romney or Nelson Rockefeller, though the evidence is very equivocal), 1976 (Scoop Jackson), and 1980 (George H.W. Bush, who might well have defeated either Reagan or Carter in a general election).

In sum, there is good reason to believe that the presidential nomination system will often eliminate a Condorcet winner. In the next post, I will consider the question of whether this is a bad thing.

Related Posts (on one page):

  1. Should We Care if Condorcet Winners Lose Presidential Elections?
  2. Why the Next President Might not be a Condorcet Winner:
[Rosemary Mariner, guest-blogging, December 18, 2007 at 11:14pm] Trackbacks
The Americanization of the Armed Forces-Historical Perspective Women in Combat:

The common approach to the women in combat debate is to follow the "can" women fight versus "should" they fight format. On the first point, the reality is that women have proved they can fight throughout time. The claim that women have never fought a major ground war is counterfactual.

Of all the possible historical examples, none offers better empirical evidence that women can fight, alongside men, than that of Russia (later the Soviet Union) in the twentieth century. In both world wars and the Russian civil war, numerous women fought on the frontlines.

When it comes to "real" combat, it doesn't get much tougher than what the Red Army faced against the Germans on the Eastern Front in WW II.

Over 800,000 women served in the Red Army and Red Air Force during WW II. By 1943, more than half of them were fighting on the front as snipers, machine-gunners, tank drivers, and in the infantry. Several women commanded male platoons. Additionally, women fought as partisans and worked in combat support positions.

The Soviets introduced three female fighter and attack aviation squadrons into combat operations in April 1942. All three fought for the duration of the war, flying thousands of combat missions. By 1945, only one squadron was still composed of women only.

Female combat pilots flew in male squadrons and one woman commanded a male aviation regiment. During the Battle of Stalingrad, female fighter pilots augmented male squadrons, racking up numerous kills. Several women pilots were shot down yet escaped to fly again.

Significantly, while the Soviets initially fielded gender segregated units, few were able to maintain that identity because of heavy attrition across the Red Army. Under intense combat conditions, male units replaced their losses with women and vice versa.

In the American context, Operations Iraqi Freedom and Enduring Freedom constitute the first time women (in all the armed services) have officially served in aviation and naval combat. Not only do women serve in the junior enlisted ranks, they have commanded warships and combat aviation squadrons during these conflicts. In both the Active Duty and Reserve Components military men and women have demonstrated --once again-- that they can and do excel as a cohesive team.

The reason that there are no recent studies concerning these combat positions is because, after thirteen years of gender-neutral assignment policies, women's presence is considered part of normal operations. Mission capability, including personnel readiness, is reported through normal channels.

Of the approximately 200,000 military women deployed to Iraq since 2003, the majority serve in the Army, Army Reserves, and National Guard. Most of these are in traditional military occupational specialties, although many are associated with combat aviation. Women have been involved in ambushes, firefights, and other self-defense combat situations resulting in a number of awards for valor.

Along with female Marines, women are restricted by both Defense Department (DoD) and their respective service policies from assignment in direct ground combat positions. However, especially for the Army, there appears to be confusion over what the policy actually is and its purpose. This is complicated by the Army's recent organizational transformation into Brigade Combat Teams and the non-linear battlefield.

In 2006, Congress directed the Secretary of Defense to submit a report on the current and future implementation of DoD policy for assigning military women. The result was a 2007 report released by the RAND National Defense Research Institute.

The report points out that the 1992 Army regulation for assigning women predates the 1994 DoD guidance and was not updated. It also defines "direct ground combat" differently from DoD, resulting in a more restrictive policy.

RAND researchers concluded that if individual or small-group self-defense is included in the direct ground combat definition, then assigning women to units that routinely conduct self-defense is not in keeping with Army policy, even though allowed under DoD policy. Given the situation in Iraq, compliance with the more restrictive interpretation could close many, if not all, support units to women.

With this brief background, my next post will deal with the issues of physical strength, fitness, cohesion, aptitude testing, and other factors related to military readiness.

Four Models of Fourth Amendment Protection: I'm happy to say that my "four models" paper has been published: Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). I may do some blogging about this paper at some point, although I'm usually pretty bad at following up after I say things like that.
Peter Jackson Signs Deal to Make Two Hobbit Movies:

Peter Jackson, the director of the incredibly successful Lord of the Rings movies, has just signed a deal to make two movies based on The Hobbit. This is great news for Tolkien and fantasy fans! In his post revealing the news (linked above), sci fi writer John Scalzi says that millions of elves must be celebrating; I think, however, that the dwarves have more reason to celebrate, since they play a much bigger role in the story.

I have a few disagreements with Jackson's decisions in the Lord of the Rings films. For example, I didn't like how he essentially portrayed Saruman as just a servant of Sauron's rather than as an independent force acting in his own interest. Overall, however, I think Jackson did a great job and I look forward to his version of The Hobbit. If the Hobbit movies do as well as the LOTR trilogy, maybe Jackson will also make a movie based on The Silmarillion. Then the elves will really have reason to celebrate!

Related Posts (on one page):

  1. George R.R. Martin on Law and Fantasy Literature:
  2. Peter Jackson Signs Deal to Make Two Hobbit Movies:
United States v. King: The Eleventh Circuit recently decided an interesting case applying the Fourth Amendment to computer networks, United States v. King. The question: If a person connects his machine to a computer network, and he unknowingly is sharing the contents of the machine with the rest of the network, does he retain Fourth Amendment protection in the inadvertently exposed contents?

  First, the facts. King was a civilian contractor who worked at a U.S. Air Force base in Saudi Arabia. He often connected to the base network using his personal laptop computer. Unbeknownst to him, his laptop was configured to "share" its contents with the entire network. One day, an enlisted man was searching the network for music files when he came across King's computer; he noticed that the computer contained adult pornography. The enlisted man reported this to another government employee, who conducted a similar remote search and found an empty folder in King's computer called "pedophilia." The government obtained a warrant to search King's computer at the air force base based on this evidence, and they found child pornography on his machine.

 King then filed a motion to suppress on the ground that the initial remote search of his computer was an unlawful search in violation of the Fourth Amendment. The Eleventh Circuit rejected the argument in a per curiam opinion (Pryor, Carnes, and Anderson on the panel) reasoning that King did not have a reasonable expectation of privacy in the files he had exposed to the rest of the network:
  King has not shown a legitimate expectation of privacy in his computer files. His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files, so the question becomes “whether society is prepared to accept [King’s] subjective expectation of privacy as objectively reasonable.”
  It is undisputed that King’s files were “shared” over the entire base network, and that everyone on the network had access to all of his files and could observe them in exactly the same manner as the computer specialist did. As the district court observed, rather than analyzing the military official’s actions as a search of King’s personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King’s computer files were a part of that network. King’s files were exposed to thousands of individuals with network access, and the military authorities encountered the files without employing any special means or intruding into any area which King could reasonably expect would remain private. The contents of his computer’s hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public [Ed.-- both fact patterns covered under 11th Circuit law finding no Fourth Amendment protection].
  I'm not immediately comfortable with this reasoning, although I think the ultimate result is correct. A foundational principle of the Fourth Amendment is that one who "knowingly exposes" material to other government actors retains no Fourth Amendment protection in that material. See Katz v. United States. This applies just as much to computers as it does to anything else, so that if you knowingly expose files to a government network you lack Fourth Amendment protection in the knowingly exposed materials. See United States v. Barrows (10th Cir. 2007).

  Here's the twist: King did not realize he was exposing his files to the rest of the network. He thought that his files were blocked from the rest of the network. If that had been the case, the files would have been protected by the Fourth Amendment. See United States v. Heckencamp (9th Cir. 2007). I think that brings us into somewhat different territory: we're not dealing with "knowing exposure" but rather "unknowing exposure."

  Should that make any difference? I'm not sure, but I think the issue is actually pretty hard. In the physical world, you don't generally find cases of genuine "unknowing exposure." If you leave an object in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public (to take the facts of earlier 11th Circuit precedents), you generally are aware of that fact. You may still have a subjective expectation of privacy, but you are nonetheless aware of the fact that you have put your stuff in a place exposed to the public and that you are running the risk that your stuff may be seen. You have a subjective expectation of privacy but no reasonable expectation of privacy under Katz.

  Computers are different. The user typing at his machine may have a perfectly reasonable belief that his files are hidden when they are in fact being exposed. The user no longer has the usual physical clues to determine whether his materials are exposed. Whether a user has a constitutionally reasonable expectation of privacy in such setting strikes me as a complicated question, and off the top of my head I'm not sure what the answer should be.

  [UPDATE: The more I think about this, the more I think the problem is the clash between the experiences of the searcher and the searched. The searcher has no idea what the searched person has intended, and the searched person may have no idea that he is being subject to search. The absence of physical clues leads to uncertainty when both users are online interacting virtually with the network. Which perspective should the Fourth Amendment follow: the searcher or the searched? This is actually a rich and unsettled question, I think.]

  In light of these difficulties, I tend to think the better approach to resolving the King case would have been to assume a reasonable expectation of privacy and apply the "special needs" reasonableness framework of O'Connor v. Ortega. This was a government network, and users of the network had a right to conduct reasonable searches of it. It seems to me that the remote searches here were reasonable under O'Connor, meaning that they did not violate the Fourth Amendment even assuming that King retained Fourth Amendment protection in the contents of his laptop. This would lead to the same result, but on ground that is a little more certain. (Also note the interesting fact that the search occurred in Saudi Arabia; given that this was a U.S. base and a U.S. contractor, that probably doesn't make any difference.)
Statutory Rape and the Underage Person's Past Sexual Conduct:

A commenter writes:

The general topic of urban law legends always interested me. I traced the belief that if three of your friends testify to sex with a statutory rape complainant, she is declared a prostitute and the charge is dismissed, back to the common law allowing cross-examination of sex victims' sex lives.

That's not quite a legend, it turns out. Some states did indeed provide the underage person's past sexual history as a defense to at least certain kinds of statutory-rape-related charges, and at least one still does. Texas Penal Code §.; 22.011, for instance, used to provide, until 1993, that it was a defense to statutory rape that "the child was at the time of the offense 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct described in that subsection." The same rule seems to have existed in Mississippi at least until at least the mid-1980s, and in Florida and Tennessee until the 1990s. Likewise, Mass. Stat. ch. 272 § 4 to this day prohibits "induc[ing] any person under 18 years of age of chaste life to have unlawful sexual intercourse."

Likewise, the Model Penal Code (§ 213.6), proposed in the early 1960s, provided for a promiscuity defense, and cited some past statutes (in South Carolina, Tennesse, and Virginia) as authority, while noting that the then-modern trend had been to reject such a defense. "[P]roof of prior sexual promiscuity," the Code's drafters reasoned, "rebuts the presumption of naivete and inexperience that supports the imposition of criminal liability." Pennsylvania had enacted this provision in 1972, but has since repealed it (as best I can tell, in 1976).

I'm not sure that the underage person's past sexual history is a complete defense today anywhere in the U.S. -- Massachusetts, for instance, generally prohibits sex with under-16-year-olds, without a "chaste life" qualifier. So don't you folks start getting any ideas here. Still, the promiscuity exception to statutory rape did exist in at least some jurisdictions, until not so long ago.

"Mr. Hart, Would You Recite the Facts of Hawkins Versus McGee?": Although my teaching style bears little resemblance to Kingsfield's, I have to say that I absolutely love this first scene from "The Paper Chase."
[Rosemary Mariner, guest-blogging, December 18, 2007 at 1:24am] Trackbacks
The Americanization of the Armed Forces-Overview:

My thanks to Eugene for the invitation to guest blog and to Prof. Browne for a copy of his book. Also, my thanks to all for considering a different perspective on gender integration in the military and the much larger issue of how to best provide for the common defense of the republic.

My central premise is that military effectiveness is enhanced by the inclusion of the best qualified individuals in a gender integrated force, including combat roles. Participation should be predicated on individual performance and not presumed group traits. Women are neither inferior nor superior to men; we are all individuals first and foremost, accountable for our actions.

Not only does this make for the best defense, it is consistent with the oath that all servicemembers take to uphold and defend the Constitution of the United States.

I emphasize the word republic (from the Latin res publica, or the people's thing) because the connection between citizenship and military service is as old as the concept of self-government; those who govern themselves protect themselves. Conversely, warrior aristocracies claiming a monopoly on the use of force based on their inherent superiority (birth into the nobility) are long viewed as antithetical to republicanism. This is in part because the reciprocal of protection is often obedience.

In the American example, the debate over the nature of the armed forces and who serves predates the republic. Issues of inclusion and exclusion are a constant thread in U.S. military history, both in (and between) the professional "regular" army and America's various citizen-armies. The same is true of the Navy. Military historian Alex Roland argues "that personnel is the most important topic...Who is going to fight, under what terms, and with what consequences? This is the fundamental question of American military experience."

Thus, the so-called "feminization" of the military over the last one hundred years is really part of what I call the Americanization of our armed forces.

In addition to teaching military history, the focus of my research is on the connection between military service and republican citizenship, --not gender issues. While I normally don't get into the "women in combat" debate for reasons that Mark Grimsley pointed out, I've decided to engage this time for several reasons.

First, the protracted limited war in Iraq will eventually force a new debate on the composition of the U.S. armed forces. The impact on readiness of current ground combat exclusion policies is but one facet of a much larger public discourse that needs to take place.

Some of the most contentious issues will include the use of armed mercenaries, integration of the Reserve Component, and conscription. While I am adamantly opposed to conscripted military service or labor (national service), there are advocates on the political right and left who are already pushing hard for both. Invariably, the proposals include some degree of female liability.

Secondly, there appears to be widespread misunderstanding about what constitutes military readiness and how it is measured by the armed forces. It is difficult to have a serious debate until such terms are understood in the context the military uses them.

Last, but not least, Prof. Browne's central justification for excluding women from combat seems to be the notion that women are inherently inferior to men, based on "new evidence" drawn from evolutionary psychology (EP). In other words, the individual doesn't matter. Yet, as Edward Hagen of the Institute for Theoretical Biology explains EP, "nothing in evolutionary theory privileges males over females, however, nor does evolutionary theory prescribe social roles for either sex."

This appeal to natural superiorty is reminiscent of Social Darwinism, where proponents of racial superiority misappropriated the work of Darwin to advance their social agendas. It was used to justify Eugenics and a lot worse. Arguments of supposed innate superiority (as opposed to demonstrated individual ability) have no place in prescribing the participation of adult citizens in America's public institutions.

Hopefully, in addition to addressing Prof. Browne's arguments, I can add some illumination on these and other larger issues central to providing for the common defense.

Finally, a few points of clarification on my background. On the issue of how to abbreviate my naval rank, it is well estabished that the Navy does not speak English. Having been retired and in the academic world for some time, Eugene's use of Capt. is fine with me.

The relevant point is that I am a practitioner who retired as an O6, not an O3. In addition to my aviation and shipboard experience, I have significant experience from while I was on the Joint Staff in how military readiness is evaluated on the tactical, operational, and strategic levels of warfare. My Joint Staff tour included various field assessments of Joint Task Forces which made it very clear that the Navy and Air Force have it much easier than the Army and Marine Corps.

That being said, there was nothing extraordinary about my career outside of the first female context. I was not a combat pilot nor do I claim to have any first hand knowledge of ground combat. My career spanned the years when Navy and Air Force women were prohibited by law from flying aircraft actually engaged in combat missions. We could get shot at, but not shoot back.

However, having lived through the "pink and blue" military force that Prof. Browne advocates a return to, I know why there is no going back. The risk rule and other paternalistic policies were as unfair to men as they were to women. They proved unworkable in the Gulf War. The issue now is whether we change (and if so, how) the ground combat exclusion policies.

There are many valid concerns about introducing women into direct ground combat forces. There are also many valid concerns that current exclusion policies are making it more difficult for commanders to get the job done while maintaining a legal fiction that women aren't in combat. It is time to review the current policies.

My next post will provide a brief historical overview of women in combat and address some of the current issues in Iraq and Afghanistan. I look forward to reading your comments.


Monday, December 17, 2007

New Dean at Minnesota:

It's David Wippman, now a vice provost at Cornell. It's an outstanding choice, and a very good sign for the future of the law school.

Say What You Want About Mike Huckabee, but the man seems to know how to play to his base.

  UPDATE: It's interesting to compare Huckabee's Christmas message with Ron Paul's. I'm not sure if other candidates have released such videos; I don't remember seeing them before so I thought Huckabee's was unusual. Perhaps I'm wrong about that.
Enlistment Bonuses for Soldiers Who Are Discharged Because of Combat Injuries:

A press release from Sen. John Thune's office reports that the policy I discussed and faulted here last month may be about to change:

[The just-enacted] S.2400, the Wounded Warrior Bonus Equity Act ... would end the policy of the military to demand combat-wounded service personnel give back a portion of the enlistment bonuses they receive because they are unable to serve out their commitments due to their combat-related injury....

Current Department of Defense policy states that service personnel who have been medically discharged due to a wound sustained in combat have not fulfilled their full term of service, and therefore must return a portion of the bonus they received when they enlisted. The Wounded Warrior Bonus Equity Act would end this ... and require that bonuses be paid in full when service personnel are disabled in combat. In addition, the bill would require the Secretary of Defense to identify the soldiers to be paid retroactively, and determine the amounts to be paid to each soldier through a financial audit.

Sen. Thune was a cosponsor of the bill. Sen. Thune's office reports that a House version of the bill is likely to be passed tonight.

Related Posts (on one page):

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

Rachael Larimore at Slate's XX Factor reports on the apparent controversy surrounding this photo:

My reaction is similar to Larimore's: I think this makes Clinton look more appealing, not less. But my reason is a little different from Larimore. She thinks it may lead people to feel a little sorry for Clinton:

I feel for her. No one likes to see pictures of themselves having a bad hair day, or after missing a few trips to the gym. And that's without the fate of a presidential campaign — her life's ambition — hanging precariously in the balance.

I think it just makes her look more down-to-earth: Less carefully put together and more lived-in, an older professional woman on whom time has taken its toll — as it does on us all — but who has acquired the advantages of experience in exchange. I still won't vote for her, for reasons entirely unrelated to her appearance; but I like the photo. Ann Althouse has more.

Your Coolness Is Your Weapon, So We Will Take It Away:

The Milwaukee Journal-Sentinel reports:

Randall Shesto II of Waukesha[, a 21-year-old rock musician,] was found guilty in June of sexually assaulting a 15-year-old girl [whom he had met on MySpace] .... He earlier this year had been convicted of having sex with another 15-year-old girl ....

"You love your music. Your music has been the tool by which you have ingratiated your way into the lives of these girls. You may not play in a band in any public appearances during the term of your probationary period. I'm taking away from you the tools by which you worked your misdeeds, sir," [Judge Ralph] Ramirez said [at Shesto's sentencing].

Ramirez sentenced Shesto to ... [effectively] probation for five years for second-degree sexual assault of a child [plus] a year in jail — one month behind bars and 11 months on work release....

Generally speaking, judges have a great deal of latitude in imposing probation restrictions, including ones that interfere with what would otherwise be the probationers' First Amendment rights; probations generally have no more First Amendment rights than prison inmates, and prison inmates have very few. The rule is that the restrictions must be "reasonably related to legitimate penological interests," and restrictions aimed at blocking behavior that could interfere with the probationer's rehabilitation, or at blocking behavior that could facilitate future crimes by the probationer, are generally upheld.

So the judge's reasoning — which I've tried to encapsulate in the subject line — is, under that standard, not implausible (though not open-and-shut correct). But it is pretty unusual, and struck me as worth noting.

Thanks to Ted Frank for the pointer.

UPDATE: Commenter BGates is the winner:

So instead of being a local rocker, he's a local rocker who The Man won't let play because he's too dangerously sexy. He'll never attract 15 year old girls now.

Jewish, Shmewish:

Above the Law notes an e-mail at a law firm (likely inadvertently circulated via "Reply All") and the ruckus it caused. The e-mail was:

From: ...
To: DL All Attorneys - US
Cc: ...
Sent: Mon Dec 17 11:00:29 2007
Subject: German Translation - Completed

Dear All,

Thank you for your many quick responses [to a request for translation of a German document]. The translation has been completed.

Regards, ...

From: ...
Sent: Monday, December 17, 2007 11:02 AM To: ...; DL All Attorneys - US Subject: Re: German Translation - Completed

Zieg Heil!!!!!!

Sent from my Blackberry Wireless Handheld

This then prompted apologies, including the "Zieg Heil" author's statement that, "Given my many friends in the firm, common sense and my own Jewish heritage, I know that these are words that should have never been spoken or written."

But come now — connecting German translations with "Sieg Heil" isn't anti-Jewish; it's (in context, mildly) anti-German. It expresses no endorsement of Nazism; at worst (from Jews' perspective) it in some measure trivializes Nazism, but only to a very small degree and not in a manner that is tremendously offensive.

To the extent the phrase has any real meaning, it seems to me, it unfairly connects modern German matters with the atrocities of generations ago (kind of like calling German cars Nazimobiles, though I realize that that also sometimes involves an allusion to the specific history of the Volkswagen). Germans, not Jews, ought to be the ones who feel offended by it.

Staged College Hate Crimes: Eugene links below to the story of the fake hate crime at Princeton. Is it just me, or are staged hate crimes on college campuses unusually common? My own university, George Washington, recently had such an episode. Swastikas were found on dorm room door of a Jewish student,and it turned out most and probably all of the swastikas were put there by the resident herself. I'm not sure what it means, and I don't think it's something new, but it sure is strange.

Related Posts (on one page):

  1. Can You Get Away With Committing a Hate Crime Hoax?
  2. Staged College Hate Crimes:
Apparently False Report of Anti-Conservative Hate Crime:

The Daily Princetonian reports:

Francisco Nava '09 has admitted to fabricating an alleged assault on him that he said occurred Friday evening and also to sending threatening emails to himself, other members of the Anscombe Society and prominent conservative politics professor Robert George, Princeton Township Police said today.

"He fabricated the story," Det. Sgt. Ernie Silagyi said.

Nava was released to Public Safety and charges "have not been filed pending further investigation," according to a statement from Township Police.

So you lie to the police. You spread unjustified fear and anger. You slander the Left. You make your friends on the Right (and elsewhere) who came to your defense look like dupes. And you further undermine others on the Right, some of whom might face real threats or attacks in the future but who will have a harder time being believed because of you. Lovely.

Thanks to InstaPundit for the pointer.

Looking for a Client for Right-to-Record-Police-Officers Case:

My friend Michael Rosman at the Center for Individual Rights writes:

Like many of your readers, I was intrigued by your recent post concerning the conviction of individuals for taping or videotaping police officers while the officers are doing their job in public. Some of your readers thought that there may be some federal constitutional problem in laws that make such tapings illegal. My employer, the Center for Individual Rights, is interested in possibly representing individuals who want to challenge such laws as a violation of constitutional rights.

Ideally, a potential client would be a person or organization that legitimately is concerned about being arrested for taping police officers, or who would engage in that conduct were it not for a law making it illegal. Obviously, it would have to be in a state where the law makes that concern reasonable. (Your post referred to Massachusetts. We believe that Pennsylvania may be another such state, although the law there is more in flux.) Someone who has already gotten in trouble for violating such a law is fine, but we would not be the best lawyers to represent someone currently involved in an ongoing criminal or civil proceeding in state court.

If any of your readers are among those who would like to challenge a law of this kind, or can help us identify the states where such laws exist by giving us cites to relevant statutes or cases, (s)he can email me at rosman [at]

UPDATE: Two interesting surveillance-related items in this post, including a Popular Mechanics piece from Prof. Glenn Reynolds (InstaPundit) on the subject.

Related Posts (on one page):

  1. Looking for a Client for Right-to-Record-Police-Officers Case:
  2. Surreptitious Recording of the Police:
  3. The Dark Side of Privacy Law:
Correctness and People's Personal Names:

A commenter on the "correctness" thread asked whether people are required, as a matter of standard English usage and as a matter of good manners, to follow another person's preferred spellings and pronunciations of that person's name. Is it OK to call a Juan "John"? How about pronouncing the name "Dzh-you-an"?

The modern standard English practice for personal names is, to my knowledge, different from the practice for place names: The bearer of the name is entitled to choose his own spelling, and, to a certain extent, his own pronunciation, so long as the pronunciation does not depart too far from the norms. It's considered improper, for instance (as a matter of both correctness and manners), to call Pedro "Peter" (unless you're doing so jokingly in certain contexts). My sense is that it's also considered improper, if you know better, to pronounce the "e" as "ee" if the bearer pronounces it "eh," though of course the L.A. "San Pedro" neighborhood is pronounced precisely that way (again, the difference between particular people's names, which track the bearers' preferences, and place names, for which there is no individual bearer but only idiom).

On the other hand, it's not considered improper to use an English "r" as opposed to the more trilled Spanish "r"; nor is it considered improper to use an "eh" sound for the "e" rather than the "ehy" sound that, I'm told, is more proper in Spanish. My sense is also that bearers are given less flexibility to insist on departures from the more common English pronunciations of foreign names. Thus, my father "Vladimir" calls himself "Vlah'dimir," rather than the Russian "Vlahdee'meer": Though the latter could easily be pronounced by Americans, "Vlah'dimir" is the standard American pronunciation (to the extent that there is a standard), and I don't think he'd be entitled to insist on it even if he wanted to (and he's not the sort of guy who'd want to).

The rule therefore doesn't just accommodate most Americans' difficulty with pronouncing phonemes that are missing in English (such as the trilled "r"); it also accommodates the unfamiliarity of certain pronunciation practices, even when the sounds aren't alien to the English-speaking mouth. So the rule ends up being a compromise between the bearer's preference and English pronunciation norms.

Others are expected to follow the bearer's preferences. The bearer is expected to tolerate the inevitable inadvertent errors when his name departs too far from what is familiar — errors that happen even among people who may have known the bearer's preferred pronunciation, but have forgotten it on the spur of the moment.

Why the difference between the practices for particular people and the practices for place names? Why don't we call Beethoven Louis (though apparently others once did, and so did Beethoven himself, at least in certain situations), but do call Deutschland Germany? I'm not sure. But I am pretty sure that this is the way it is, as standard English usage goes.

Incidentally, all this is the modern English convention; the rules seem to have been different in the past, especially as to famous people. The convention may also be different in other languages; I can't speak to that.

"Are You A Cop?" And Other Tales: When I teach entrapment law, a student sometimes asks if it's entrapment for a undercover cop to lie when asked if he is a police officer. Lots of people think it is. This comment about a prostitution bust is typical:
When will folks ever learn? Ask "The Question" before you do or say anything that can get you pinched for prostitution (giving or getting). What is "the Question"? Simply this... Ask the other person in the planned transaction "Are you a police officer or are you in any way working directly or indirectly with any law enforcement agency?" If they do anything but immediately answer "NO" get out of Dodge. If they are cops or are working with them they will try and avoid answering the question or will try some kind of weasel answer. If they are working with the cops in any way and lie and say "NO" then the entire 'crime' is entrapment and anything (evidence or testimony) gained is inadmissible in court. In some jurisdictions they have tried to criminalize asking "The Question" but there is no way to criminalize it without violating several constitutional rights so any such law, whenever challenged, quickly falls. Just more cases of only the uninformed or stupid getting caught. Ah well...
  Of course, that's not the law, at least in the United States. The commenter's understanding is hilariously wrong, and no doubt a lot of cops find it particularly amusing. But here's the question: Where did this rumor come from? Why do people think this is an accurate statement of the law? Does anyone know the source?

  I'm asking in part because I'm writing the entrapment materials for the new edition of Kamisar, Lafave, et. al., Modern Criminal Procedure. My thought is that if a lot of students have heard this rumor and there's a good story behind it, it might be worth pointing out the history of the rumor (and that it's wrong) in a note. Oh, and I have a vague feeling that I might have posted on this topic at some point years ago. If I have, I apologize for the repeat; I looked in the archives and couldn't find anything.
Mistakes About "Correctness":

The "Capt."/"CAPT" debate started here by accident, and of course the issue itself is of very little importance. But I keep coming back to it, because it's a special case of a broader linguistic-philosophical issue — one I've touched on before as to geographical designations, titles for the Chief Justice of the Supreme Court, and more. It also relates to a broader phenomenon, which has often been discussed here as to language: The common insistence that one particular answer is The Correct Answer, even when there's good reason to think that there are multiple correct answers.

Consider: Which is the correct name for that big country in the middle of Europe — Deutschland, Germany, Allemagne, Niemcy, Saksa, or Vokietija? Well, it all depends on what language you're speaking; there is no one correct answer, though there is generally one correct answer (to this particular question) in each language. Likewise, which is the correct name for the country in which I live — America, the United States, the U.S., the United States of America, or the States? Here there is no one correct answer even in American English, though some usages may be more suitable than others depending on the formality of the context, and some may be clearer than others depending on the context. "Correct" doesn't refer to some Platonic ideal of correctness. It simply means "consistent with the rules of the context in which the term is being used."

Now let's turn for a moment to CAPT. In standard English, words tend to be written either in all-lowercase or with the first letter capitalized, unless they are abbreviations formed from the initials of a phrase (e.g., the FBI). More specifically, abbreviations formed from the first several letters of a word are written that way, with a period indicating that the word is an abbreviation.

Yet despite this, the Navy of the English-speaking United States decided to use a distinctly non-standard-English abbreviation system. Is this "incorrect"? Well, it is certainly inconsistent with the usage practices of standard English, so it would probably be said to be incorrect in standard English. But of course organizations and professions often develop their own jargon. In that jargon, CAPT is now a correct form (and, I'm told, the only correct form in certain contexts, though of course the Navy itself uses "Capt." in other contexts).

The Navy has thus taken advantage of the fact that what is "correct" varies from context to context. Perhaps it shouldn't have taken advantage of this; perhaps it should have stuck with the standards of the broader language that it usually aspires to use. Or perhaps its decision was right, for a variety of reasons. But the important point is that its decision only makes sense once one recognizes that what is "correct" in one language or lingo need not be the sole "correct" usage in another.

Likewise, the Navy's decision to adopt its own style for its jargon doesn't tell us what is "correct" in standard English — just as the standard English practice doesn't tell us what the Navy must use. It's CAPT in Navalese, Capt. in English; it's Deutschland in German, Germany in English; it's lorry in British English, truck in American English.

Now one extra complication, raised by some posts: Might it be the case that "the only correct usage" as a matter of the rules of good manners — even if not of the rules of language — is to follow the rules of the Navy in identifying Naval officers, even in standard English? "Correct," after all, means in this context "consistent with a certain set of rules." Perhaps the rules of manners provide a more definite answer.

But I've seen no evidence that there is such a rule of manners, and no good argument that it should be. It's not bad manners to say Munich in English or Monaco in Italian instead of using (in English or Italian) the original München. It's not bad manners to call Russian astronauts "astronauts" rather than "cosmonauts" (or, if you were really trying to follow the original, "kosmonavty") — and I've always found it pretty affected when Americans say "cosmonaut," though that's an aesthetic judgment and not a correctness judgment. I don't see why it should be bad manners to write Capt. instead of CAPT. If someone wants to make the contrary argument, I'd love to see it in the comments — but the argument should explain why, in the face of the accepted practice that foreign terms are translated into standard English with no breach of bad manners, there should be any manners prohibition on similarly translating jargon.

Note also that the argument that CAPT avoids confusion (given that the Naval "Captain" in rank is very different from the similar rank in other services) doesn't really work. Readers who know that there's a difference between Captain ranks will recognize it without the different capitalization (at least where, as in my post, they are told that the Captain was in the Navy). Readers who don't know about the difference won't get anything out of the different capitalization. Perhaps there are a few people who'll see the CAPT and will be reminded of the difference that they otherwise would have missed; but I expect they are very few indeed. In any case, even if CAPT is slightly more clear, it still doesn't follow that "Capt." is incorrect — at most, "Capt." would then be slightly less clear than it could be, which is a reason to fault the usage but a different reason than "incorrectness."

I expect all this will drive some of our readers to mutter about relativism and The Sorry State Of The Academy Today, but if this is a "relativist" position, then here the relativists are right.

Place names, titles, and words generally are not "correct" or "incorrect" in the abstract. What is correct depends on the context; in many contexts more than one term is correct. And unless you're willing to say an otherwise-English-speaking Navy is incorrect to use the highly non-standard-English "CAPT," you can't reasonably say that standard English users are incorrect for sticking with the good old-fashioned "Capt."


Sunday, December 16, 2007

Sunday Song Lyric: Believe it or not, gangster rap pioneers N.W.A. (aka "N***az With Attitude") formed twenty years ago, in 1987. Their first album, N.W.A. and the Posse, did not do so well, but their second, Straight Outta Compton, caused quite a stir. Featuring exceedingly violent and misogynist lyrics, harsh criticism of the police, and a stark portrayal of life in the inner city, Straight Outta Compton went triple platinum despite relatively little radio airplay. The album catapulted N.W.A. to fame, and launched the career of the groups individual members, most notably Dr. Dre and Ice Cube.

By far the most inflammatory and controversial track on Straight Outta Compton was "F**k Tha Police," an angry response to racial profiling and police brutality. The song begins:

Comin' straight from the underground
Young n***a got it bad cuz I'm brown
And not the other color so police think
They have the authority to kill a minority

F**k that shit, cuz I ain't tha one
For a punk muthaf**ka with a badge and a gun
To be beatin on, and throwin in jail
We could go toe to toe in the middle of a cell

F**kin' with me cuz I'm a teenager
With a little bit of gold and a pager
Searchin' my car, lookin for the product
Thinkin' every n***a is sellin' narcotics.
Allegedly inspired by a run in some group members had with the policy due to their drive-by paintball shootings, the song provoked FBI scrutiny of the band and their record label for seeming to endorse violence against police officers.

Also on the album was "Express Yourself," the one song to showcase Dr. Dre, who initially DJ'd for the group. (The video is here.) Perhaps ironically, Dre disparages smoking marijuana on the track, "cause its known to give a brother brain damage." Years later, however, Dre would celebrate drug use, and marijuana in particular, as a solo artist and record producer. His first solo album was titled The Chronic, and one follow-up, 2001 has a marijuana leaf emblazoned on the album cover.

While N.W.A. was relatively short-lived, it launched several highly successful rap careers. Not only did Dre record successful rap albums of his own, he co-founded Death Row records and discovered rap phenoms Snoop Dogg and Eminem, among others. Eazy-E, who is generally credited with bringing the group together, did not fare so well. His solo efforts exuded jealousy of his former colleagues' success, and he eventually died of AIDS in 1995.

Perhaps the most interesting post-N.W.A. career is that of Ice Cube, author or rapper of some of the group's most inflammatory and politically charged lyrics (including those from "F**k The Police"). He was the first to leave the group over a financial dispute. He then released controversial solo albums of his own, including AmeriKKKa's Most Wanted. Ice Cube subsequently went on to a successful acting career, starring in a wide range of films, including "Barbershop" and "Three Kings," as well as family-oriented fare, such as "Are We There Yet?" and "Are We Done Yet?" Its an interesting outcome for the man who recorded "F**k Tha Police" nearly twenty years ago.

Spot the Non Sequitur:

I hope to have a chance tomorrow to blog a little more about today's New York Times op-ed by Adam Freedman on the Second Amendment, but for now let me just invite readers to spot the non sequitur: Where does the author leave off the fairly plausible arguments that we shouldn't focus overmuch on comma placement, and make a pretty big and unsupported leap to the bottom line? My answer is below.

Thanks to Adam Mueller for the pointer.

UPDATE: InstaPundit, who in his lawprof life is (among other things) an expert on the Second Amendment, likewises criticizes the same paragraph.

Khan Can't Say What We Did To Him:

Majid Khan claims that evidence used by the U.S. government to classify him as an "enemy combatant" was obtained through the use of torture or other illegal interrogation methods. Khan argues that this should make the evidence inadmissible. Yet Khan's specific allegations are not public. His lawyers may not disclose Khan's allegations and his motion to the U.S. Court of Appeals for the D.C. Circuit is heavily redacted. Marty Lederman is on the case, and he has some questions:

Can anyone think of any precedent in history where the government has claimed a lawful right to prevent a U.S. resident from publicly describing what the government has done to them?

I imagine that Khan's lawyers are understandably wary of raising this issue, for fear that their access to their client might be restricted. But the First Amendment right extends to the audience for Khan's speech, as well (see, e.g., Lamont), and that audience First Amendment right is even more substantial now that the allegations are the fulcrum of a motion pending before a federal court. Has any media outlet made a motion to make the allegations public? If not, why not?

Related Posts (on one page):

  1. Khan Can't Say What We Did To Him:
  2. More on Higazy:
  3. Lederman on Higazy:
  4. Classification Pathologies:
In Praise of Divided Government:

As conservative blogger Ed Morrissey explains in this post, Democratic control of Congress has led President Bush to start cracking down on federal spending and blocking congressional proposals that spend too much. This is in sharp contrast to his approach when the Republicans still controlled Congress and Bush happily presided over an almost unprecedented explosion of federal spending. As Morrissey notes, congressional Republicans have also changed their tune, opposing new Democratic spending initiatives even though they were quite happy to spend huge amounts of money when they themselves were in the majority.

In a series of posts last September (see here and here), I predicted that the cause of limited government would be better off if the Democrats took control of at least the House of Representatives. I reasoned that Bush would be more likely to oppose new government programs passed by the Democrats than those advanced by his own Party. The Democrats, for their part, would be unlikely to enact new government-expanding initiatives advocated by Bush, such as the major expansions of federal spending and regulation that he pushed through Congress in his first term.

So far, this prediction has held true. Bush and the congressional Republicans have prevented the Democrats from passing most of their government-expanding agenda. The Democrats, in turn, have taken away from Bush the option of pursuing a big government agenda of his own (as he did in the first term with his prescription drug and education bills). Historically, divided government has been a boon for limited government, and the past year has been no exception.

There has been one other major benefit of divided government over the past year: it forced Bush to shift to a more effective strategy in Iraq. Ironically, it is a strategy (increasing troop levels; pushing for Sunni-Shiite political compromise) that many Democrats had rightly advocated in 2004-2005 but abandoned by the 2006 election. Had the Republicans held on to control of Congress in 2006, it is highly unlikely that Bush would have changed course on Iraq as radically as he did. In my pre-2006 election posts, I correctly predicted that the Democrats would not be able to force a withdrawal from Iraq and speculated that they might provide some "adult supervision" over the administrations' mishandling of Iraq's reconstruction. I did not anticipate, however, that Bush would change his failed policy as much as he actually did.

The current situation is far from ideal. I would much prefer a principled commitment to limited government over restraint induced by gridlock. On Iraq, a great many lives might have been saved had the Bush Administration pursued a reasonably competent strategy to begin with. And the successes of the "surge" might still turn out to be too little too late. Nonetheless, in both foreign and domestic policy, divided government has left us much better off than we were a year ago. If George W. Bush manages to avoid going down in history as a complete failure, he will have reason to be thankful for the "Texas whooping" he suffered in November 2006.

Politicizing the JAG Corps:

Via Jeralyn Merritt at TalkLeft comes a disturbing Boston Globe story about Bush Administration efforts to assert greater political control over the JAG corps.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted. . . .

The JAG rule would give new leverage over the JAGs to the Pentagon's general counsel, William "Jim" Haynes, who was appointed by President Bush. Haynes has been the Pentagon's point man in the disputes with the JAGs who disagreed with the administration's assertion that the president has the right to bypass the Geneva Conventions and other legal protections for wartime detainees.

A Pentagon spokeswoman said that Haynes was traveling and unavailable for an interview, and she did not respond to other written questions submitted by the Globe. In the past, Haynes has made several proposals that would bring the JAGs under greater control by political appointees.

As part of the uniformed chain of command, the JAGs are not directly controlled by civilian political appointees. But Haynes has long promoted the idea of making each service's politically appointed general counsel the direct boss of the service's top JAG, a change Haynes has said would support the principle of civilian control of the military.

Under the current system, boards of military officers pick who will join the JAG corps and who will be promoted, while the general counsels' role is limited to reviewing whether the boards followed correct procedures. The proposed rule would impose a new requirement of "coordination" with the general counsels of the services and the Pentagon during the JAG appointment and promotion process.

The proposal does not spell out what coordination means. But both JAGs and outside legal specialists say that it is common bureaucratic parlance for requiring both sides to sign off before a decision gets made - meaning that political appointees would have the power to block any candidate's career path.

The only argument for this change mentioned in the article is Haynes' claim that such reforms would "support the principle of civilian control of the military." I am not persuaded. As I see it, Congressional oversight and approval of UCMJ and the general policy-making authority of political appointees in the Pentagon is sufficient to ensure adequate civilian control of the military in this context. I do not see why it would require (if even support) injecting political appointees into the promotion process, but perhaps I am missing something.

UPDATE: Intel Dump places this policy change in the context of broader tensions between Bush political appointees and the military.

Related Posts (on one page):

  1. Administration Backtracks on JAG Proposal:
  2. Politicizing the JAG Corps:
GOP Candidates, GOP Voters, and the 2008 Race: In the Sunday NYT, Adam Nagourney has an interesting article on the lack of enthusiasm for the GOP Presidential candidates among Republican voters:
  [W]hat is worrying Republicans these days is that this tepid rank-and-file reception to the best the party has to offer suggests that the Republican Party is hitting a wall after dominating American politics for most of the last 35 years. Republican voters are reacting to — or rather, not reacting to — a field of presidential candidates who have defined their candidacies with familiar, even musty, Republican promises, slogans and policies.
  "Our party generally has grown stale in its message and we’re not as tuned in as we once were," said Senator Lamar Alexander, a Tennessee Republican who sought his party’s presidential nomination in 1996 and 2000. "We’re repeating words and phrases that were from the 1980s, rather than looking ahead to 2008. We haven’t been as original and fresh in our presentation as we ought to be. We have been applying our old principles to new circumstances. The world is new."
  Of course, old ideas can be good ideas, and I'd support a candidate with old good ideas over a candidate with new bad ones. But the relative lack of enthusiasm seems real, and the question is why it exists.

  My own pet theory is that this is largely a casualty of the the Bush Administration's focus on loyalty over the past 7 years. By consistently rewarding loyalty over policy, the Bush Administration made it considerably more difficult for new GOP leaders to emerge. Being a loyalist means being a follower, and voters tend to look for candidates who are leaders instead. Partly as a result, the GOP field consists mostly of candidates who haven't been active in national politics in the last few years, if ever. Four of the five leading candidates are former officeholders (a former Mayor, a former Senator, and two former Governors), who haven't been closely involved in the political process for a while. The one sitting office-holder, Senator McCain, is known for his independence from Bush.

  It would have been a different picture if Bush were more popular. But an unpopular President who greatly values loyalty doesn't make it easy for the party in the next election.
States Reject "Abstinence-Only" Funds:

The Washington Post reports that a growing number of states is rejecting federal funding for "abstinence-only" sex education programs in response to evidence that such programs are ineffective.

At least 14 states have either notified the federal government that they will no longer be requesting the funds or are not expected to apply, forgoing more than $15 million of the $50 million available, officials said. Virginia was the most recent state to opt out.

Two other states -- Ohio and Washington -- have applied but stipulated they would use the money for comprehensive sex education, effectively making themselves ineligible, federal officials said. While Maryland and the District are planning to continue applying for the money, other states are considering withdrawing as well.

Until this year, only four states had passed up the funding.

"We're concerned about this," said Stan Koutstaal of the Department of Health and Human Services, which runs the program. "My greatest concern about states dropping out is that these are valuable services and programs. It's the youths in these states who are missing out."

The number of states spurning the money has grown even as Congress considers boosting overall funding for abstinence-only education to $204 million, with most of it going directly to community organizations.

The trend has triggered intense lobbying of state legislators and governors around the country. Supporters of the programs are scrambling to reverse the decisions, while opponents are pressuring more states to join the trend.

Federal officials say they are "concerned" about this trend, and critics of "abstinence-only" hope this leads to less restrictive, or differently targeted, funding conditions. Should the state trend continue, I would hope it would prompt reconsideration of the federal role here. If states don't want this money, that's just one more reason to end the federal funding altogether. Congress, however, seems ready to increase funding by over 15 percent.