Saturday, January 5, 2008

Iowa Caucuses:

Really, why does anyone take them seriously, at least on the Republican side? Wasn't Pat Robertson's second-place finish with 25% of the vote in 1988 enough to discredit them permanently?


First Amendment Procedural Protections and Copyright Law:

There's an interesting debate between Dan Solove and Bruce Boyden on one aspect of this -- limits on discovery of an anonymous poster's identity -- in this Concurring Opinions post and the comments to it.

I've cowritten pieces on related subjects before (injunctions in copyright cases and independent appellate review in copyright cases), but I'm not sure how things should play out here, where literal copying is alleged, and where the procedural protection is the emerging procedural rule related to limits on the outing of anonymous posters. My inclination is to say that the procedural rule should be applied, but the requirements of the rule should be easy to satisfy (since the rule generally requires only showing of a serious prima facie case that the speech is unprotected by the First Amendment, something that's usually pretty easy to do with file-sharing of literal copies of others' songs). But I can't say I've looked at the subject closely.


En Banc Sixth Divides on Habeas Petition (and En Banc):

Yesterday, a divided en banc panel of the U.S. Court of Appeals for the Sixth Circuit divided over convicted murderer Stephen Bell's habeas claim, as well as over whether en banc review should have been granted in his case, Bell v. Bell.

Bell was convicted of both first and second degree murder in a Tennessee court over 20 years ago. Since then, he has been challenging his conviction arguing, among other things, that he received ineffective assistance of counsel and the state failed to turn over material that could have impeached a prosecution witness, in violation of Brady v. Maryland. A federal district court denied Bell's habeas petition, but a divided Sixth Circuit panel reversed on Bell's Brady claim. A majority of active Sixth Circuit judges voted to rehear the case en banc, vacating the panel decision. Yesterday, the en banc court voted 8-6 to affirm the district court's denial of Bell's habeas petition.

The key issues dividing the court was whether the prosecution unlawfully withheld evidence of an alleged tacit agreement between it and a jailhouse snitch who testified for the prosecution and subsequently received more lenient treatment from the government. As Judge Gibbons wrote for the Court majority:

although we do not take issue with the principle that the prosecution must disclose a tacit agreement between the prosecution and a witness, it is not the case that, if the government chooses to provide assistance to a witness following a trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady. “The government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witnesses prior to their testimony.” Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (emphasis in original). To conclude otherwise would place prosecutors in the untenable position of being obligated to disclose information prior to trial that may not be available to them or to forgo the award of favorable treatment to a participating witness for fear that they will be accused of withholding evidence of an agreement.
Because Bell could not demonstrate the existence of an actual agreement between the prosecution and its witness.

In addition to dividing on Bell's Brady claim, the court also divided over whether an en banc rehearing should have been granted in the case. In a separate dissent on this question, Judge Moore argued that the court did not have sufficient grounds for an en banc because there was no intracircuit conflict, nor did the case present "a matter of exceptional public importance." Judge Gibbons responded to this charge in a footnote:

FN2 Judge Moore’s dissenting opinion questions the justification for granting en banc review in this case, asserting that the case does not present a question of exceptional public importance but only a difference of opinion as to what facts permit the inference of a tacit agreement. As explained infra . . . , it is precisely the panel majority’s conclusion that the facts of this case permit such an inference that would create a new definition of Brady material and a new legal rule broadly applicable in federal criminal prosecutions as well as habeas proceedings. If the panel majority’s opinion remained as binding precedent, the impact would be enormous. While ordinarily factual issues do not merit en banc rehearing, this one does.


Reader Poll on Allowing the Death Penalty To Punish the Rape of A Child: In light of the Supreme Court's recent decision to hear a case on whether states can impose the death penalty for rape of a child, I am curious about reader opinion on such laws. So here's a reader poll. Imagine your state is considering a law to allow a jury to impose the death penalty for a defendant who rapes a child. Now answer the following question:

Which of the following positions best describes your view — both as a matter of policy and of constitutional law — on a state law allowing the imposition of the death penalty for rape of a child?
I would support this law as a matter of policy and I think it is constitutional.
I would support it as a matter of policy and I do not know if it is constitutional.
I would support it as policy although I think it is unconstitutional.
I would be against it as a matter of policy and I think it is unconstitutional.
I would be against it as a matter of policy and I do not know if it is constitutional.
I would be against it as a matter of policy although I think it is constitutional.
Free polls from


Revisiting the Lancet Study on Iraqi War Deaths:

In 2006, the Lancet published a controversial study finding a substantial, continuing Iraqi death toll in the years following the 2003 U.S. invasion. The study bolstered critics of the Iraq war and prompted substantial debate, online and elsewhere.

Neil Munro revisits the Lancet study in the new issue of National Journal.

In the ensuing year, numerous skeptics have identified various weaknesses with the study's methodology and conclusions. Political blogs and academic journals have registered and responded to the objections in a debate that has been simultaneously arcane and predictable. The arguments are arcane because that is the nature of statistical analysis. They are predictable because that is the nature of today's polarized political discourse, with liberals defending the Lancet study and conservatives contesting it.

How to explain the enormous discrepancy between The Lancet's estimation of Iraqi war deaths and those from studies that used other methodologies? For starters, the authors of the Lancet study followed a model that ensured that even minor components of the data, when extrapolated over the whole population, would yield huge differences in the death toll. Skeptical commentators have highlighted questionable assumptions, implausible data, and ideological leanings among the authors, Gilbert Burnham, Riyadh Lafta, and Les Roberts.

I did not follow the debate closely enough to reach a conclusion about the merits of the study or its critics. The Munro article provides a convenient overviewof the controversy for those of us without the time or patience to wade into the depths of the debate. Munro is not entirely neutral, however, as he concludes there are potential problems with the initial study.
Over the past several months, National Journal has examined the 2006 Lancet article, and another [PDF] that some of the same authors published in 2004; probed the problems of estimating wartime mortality rates; and interviewed the authors and their critics. NJ has identified potential problems with the research that fall under three broad headings: 1) possible flaws in the design and execution of the study; 2) a lack of transparency in the data, which has raised suspicions of fraud; and 3) political preferences held by the authors and the funders, which include George Soros's Open Society Institute.
Of these critiques, I find the political preferences of the authors and their funders to be the least persuasive. Political bias of this sort could certainly explain problems with the study, such as a failure to scrutinize sources and ensure their reliability, but I do not think that the authors' ideological predispositions (or those of the funders) should, in and of themselves, case doubts on the study's findings. The Lancet study's conclusions should stand or fall on their own. In this regard, it is interesting that Munro reports the Lancet editors are less confident of the analysis than they once had been.
Today, the journal's editor tacitly concedes discomfort with the Iraqi death estimates. "Anything [the authors] can do to strengthen the credibility of the Lancet paper," Horton told NJ, "would be very welcome." If clear evidence of misconduct is presented to The Lancet, "we would be happy to go ask the authors and the institution for an official inquiry, and we would then abide by the conclusion of that inquiry."


Justice Ginsburg and the Death Penalty for Rape:

A comment on the thread about the new Supreme Court death-penalty-for-child-rape case wrote, "I think [Justice Ginsburg] may be disturbed by some of the statements in the Coker decision about rape not having any long term harm on women. As a woman, I am sure she was not thrilled with 9 men deciding that." I should note that Coker says,

Ruth Bader Ginsburg, Melvin L. Wulf, Marjorie Mazen Smith, and Nancy Stearns filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal [of the death sentence].

The brief was filed on behalf of the American Civil Liberties Union, the Center for Constitutional Rights, the National Organization for Women Legal Defense and Education Fund, the Women's Law Project, the Center for Women Policy Studies, the Women's Legal Defense Fund, and Equal Rights Advocates, Inc.; here's the summary of the argument from that brief:

The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men.

As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men.

The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility.

The death penalty for rape does not meet “contemporary standards regarding the infliction of punishment,” Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime.

Amici, interested in effective enforcement of laws against rape, urge that the death penalty for rape be invalidated because it stems from archaic notions which demean women and gross racial injustice and does not serve the goal of convicting and subjecting to criminal sanctions those who are in fact guilty of rape.

Now maybe there are parts of the language in Coker that Justice Ginsburg disapproves of -- though I certainly wouldn't say that Coker describes rape as "not having any long term harm on women," especially given this passage from the Coker plurality:

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self." It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life.

Likewise, it's possible that Justice Ginsburg has changed her views in the last 30 years. Still, I wouldn't infer much from Justice Ginsburg's sex or feminism about her views on the death penalty for rape.


Careful With Those Scientific Allusions:

I just noticed this item from Andrew Sullivan in The Atlantic:

Consider this hypothetical. It’s November 2008. A young Pakistani Muslim is watching television and sees that this man — Barack Hussein Obama — is the new face of America. In one simple image, America’s soft power has been ratcheted up not a notch, but a logarithm.

Now I've been trying hard to stifle my natural temptation towards mathematico-linguistic pedantry. Really, I have. "A number of" to mean "many" still annoys me — zero is a number; so is one — as does "to the nth degree" (depends on the n, no?). But I have to acknowledge that these are established English idioms, governed by the rules of English idiom, not of mathematics. I don't like 'em, but that's my problem, not the speaker's.

Still, if you're going to try to come up with new figurative usages, it seems to me that the figure of speech should fit rhetorically. "A number of" at least sounds large, but "a logarithm" doesn't. Logarithms, I think, generally seem small. In all the commonly used bases, they are smaller than the original number, often much smaller. A million is a big number; comparatively, the base-ten logarithm of a million (six) is much smaller.

A logarithmic scale does have the property that small steps can correspond to large increases, which is what I take it Sullivan is referring to. But "ratcheted up ... a logarithm" doesn't quite capture that, I think. "Exponential increases" does communicate "large increases," in a way I have to grudgingly accept (down, math pedant self, down!). But logarithm is the opposite of exponential, not a synonym. And when new terms are coined, the correspondence to the original referent does matter, especially given that most people who even know what a logarithmic scale is will likely think of the original referent.

My sense is that scientific allusions, like classical allusions, tempt people into error — they sound cool, and people use them because of that rather than because they're apt. So think twice before you ratchet things up a logarithm.

UPDATE: The winner is commenter Elmer: "To summarize, ratchet and soft and logarithm just don't go together well, though Soft Ratchet Logarithm would, of course, be an OK name for a band."


Mis (Not Quite) Quoted by the AP: Yesterday I engaged in an email interview with a reporter from the AP, who today in this story inaccurately attributes the following view to me:
Randy Barnett, law professor at Georgetown University, agreed that the argument is strained, and said that if the high court accepts the notion that the right to bear arms is an individual right, it would be hard pressed to turn around and allow the district and the states to violate that right.

The district's interpretation "is at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well," Barnett said.
The actual quote is correct. The view attributed to me in the italicized portion of the story, but not actually quoted, was not even the subject of our exchange.

To the contrary, in my view, because the Second Amendment by itself applies only to the federal government, whether or not states may violate a right to keep and bear arms is a Fourteenth Amendment issue. Originally, such an individual right to arms was meant to be protected by the Privileges or Immunities Clause. Ahistorically today, it would have to be "incorporated" into the Due Process Clause. Therefore, it is quite easy to imagine the Supreme Court accepting an individual rights interpretation of the Second Amendment and then not applying it to the states via the Fourteenth Amendment. That issue is not on the table (immediately at least) in the Heller case.

The interview actually concerned DC's claim that because the District was LIKE a state, and because the Second Amendment only protected the right of a state to have a militia (and also that it did not originally interfere with the internal discretionary powers of states), the Amendment did not apply to DC. It was this claim (in bold) that I viewed as both strained and "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well." Here is what I wrote in my very brief email:
This part of the District's argument depends entirely on its claim that the Second Amendment only protects the rights of states to preserve their militias. This is not what the amendment says. What it says is that, given the importance of having a militia, the "right" of "the people" (which everywhere else in the Bill of Rights refers to individual rights) shall not be infringed. So while the district's argument has been accepted by many courts of appeals in the 20th Century, it is wrong.
Other than a report by the Cybercast News Service of a talk I gave at Brookings Institute that, by being badly written, inadvertently made it appear as though I opposed the individual rights interpretation of the Second Amendment, this is the first time I have been misquoted by a reporter, except in this story the actual quotation was indeed mine.

I am positive that this was an innocent oversight by the AP reporter, and this is not the worst view with which to be wrongly associated. However, because past quotes of mine in wire service stories have spread widely on the net, although I doubt that this correction (or even one by the AP itself) can catch up to this misattribution, I felt it necessary at least to try to correct the record here.

Friday, January 4, 2008

Has a recession already started?--

Are we in an economic recession?

According to figures released by the Dept. of Labor Friday morning, December civilian unemployment jumped three-tenths of a percent from 4.7% to 5%, representing a .6% increase over the March 2007 rate of 4.4%.

According to historical statistics that I analyzed today, since 1948 there were 160 prior months when there was a .6% or greater increase in the unemployment rate over the trough (minimum) unemployment rate of the prior 9 months. Every single one of these 160 indicator months fell before, during, or after one of the 10 recessions since 1948.

Looking at the 10 recessions since 1948, this .6% indicator coincided with the start of the recession in one case (1980), with the 3d month in two cases (1970 & 1990), and with the 4th month of the recession in four cases (1953, 1981, 1974, & 2001). In three of the ten cases, the indicator preceded the recession: in 1957 the indicator month preceded the recession by 2 months, in 1959 the indicator month preceded the recession by 6 months, and in 1948 (the first year of the Labor data) the indicator month preceded the recession by 8 months.

In other words, since the 1960-61 recession began in April 1960, every one of the 115 months with an unemployment rate .6% higher than one of the prior 9 months was either during a recession or in the aftermath of a recession.

Further, in every recession cycle, in the first month that included both a .3% jump from the immediately prior month and a .6% increase over the trough of the prior 9 months, we were already in a recession by the time the data was reported (in the following month).

If the past is any guide to the future--and anyone doing backtesting knows that it often isn’t--then we are probably already in a general recession (or will be in one by August at the latest).

This conclusion is consistent with some work I did last summer showing that since World War II, substantial housing declines always preceded or coincided with recessions:

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

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


1. A recent survey of top money managers, CNBC’s Trillion Dollar Survey, found that 98% of the 60 experts surveyed put the chances of a recession in 2008 at 50-50 or less. As someone with far less expertise than they, I would put the chances of a recession in 2008 at perhaps 75-90%. While (social) science does not work by consensus, a wise person should probably give more weight to the opinions of 59 of the 60 experts than to my opinion (shared by only one of the 60 experts surveyed by CNBC.

2. The unemployment data is frequently revised up or down a little based on later data, so the 5% December unemployment rate may change. Thus, the indicator I use here may disappear (though even a .5% increase to 4.9% is usually associated with a recession).

3. Because unemployment often continues to rise long after a recession officially ends, I needed to use a cut-off for determining the length of the aftermath of a recession. I treated recession unemployment as having peaked (and a new cycle resetting) when (1) the recession has ended, (2) the .6% indicators cease, and (3) unemployment drops to a level at least .3% below its peak from the prior 12 months. [I have more on this caveat in the comments.]

Related Posts (on one page):

  1. More on the Recession Watch.--
  2. Has a recession already started?--

Child Support Obligations of Sperm Donors:

Thanks to Jocelyn Bowie for pointing me to a very interesting recent opinion in the case of Ferguson v. McKiernan, --- A.2d ---, 2007 WL 4555436, Pa., December 27, 2007:

A man (McKiernan) agrees to provide sperm to an unmarried woman (Ferguson) who wishes to become a single parent but wants to use the sperm of someone she knows rather than an anonymous donor. The man agrees not to seek custody or visitation of the child, and the woman agrees not to seek child support. The woman’s eggs are then fertilized in vitro with the man’s sperm, and resulting embryos are implanted in the woman’s womb for gestation. Five years after giving birth to twins, the woman demands child support payments from the man. The trial court ruled that the contract is unenforceable because parents normally are not permitted to waive child support requirements. The Pennsylvania Supreme Court, fearing that no man in his right mind would ever be sperm donor if that ruling is upheld, reversed and freed the man of monthly support obligations.

The case illustrates several conceptual difficulties inherent in defining parentage and determining child support obligations. The majority of the Pennsylvania Supreme Court observes that if the “known” sperm donor is held responsible for caring for his “children,” there is no reason why the logic wouldn’t require the same of anonymous sperm bank donors. They, too, are genetic parents of the children. But if the line on one side — between donating friends and anonymous sperm bank donors — is difficult to defend, so too is the line on the other side. If the sperm donor friend need not support the offspring on the ground that he had no intention of becoming a “social” parent and genetic parentage should not be sufficient, shouldn’t the same rule apply to a man who impregnates a woman through sexual intercourse after the two agree that the man will have no support obligations for any offspring? In this case also, both genetic parents understand and agree that the man is only providing genetic material and is not agreeing to become a social parent. If the man should not be responsible in this case, the next question is why he should be responsible when the pregnancy is accidental rather than intended and the man wants the woman to obtain an abortion but the woman declines to do so? The woman’s right to control her own body guarantees her the right to unilaterally decide whether or not to terminate the pregnancy, but why should she be able to impose child support obligations on the genetic father who clearly wishes to avoid “social” parentage?

The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child. But this response just begs the question of what relationship is necessary to establish such an entitlement. If genetic parentage is sufficient, then children should have a right to child support from even an anonymous sperm donor.

Many states (although apparently not Pennsylvania) have established by statute that anonymous sperm donors have no parental obligations, but the existence of such laws doesn’t justify them. One possible defense of treating anonymous sperm donors differently is that states with such statutes abrogate the rights that genetic children fathered by anonymous sperm donors would otherwise have against their genetic fathers because such laws encourage sperm donation, which in turn makes it possible for the genetic children to be born, and being born but having no paternal financial support is better than never being born at all. But this logic, carried to its extreme, would suggest children would have no right to parental support in any case.

Perhaps another way to think about the problem posed by the case is that the woman cannot contract away the children’s right to the support of their genetic father, but there is no reason why she should not be able to indemnify the man from any such claims. Her promise not to seek child support can be interpreted as such an indemnification. This reasoning seems sound from the perspective of contract doctrine — the woman can commit herself to a contract but not the third-party children — but it raises obvious practical problems when the man earns sufficiently more than the woman (as was true in Ferguson) such that his court-imposed child support obligation exceeds what she could pay in damages. Following this path of reasoning often would result in the resort to bankruptcy law to determine how much of the amount the man owes to his genetic children he can recapture from their mother.



Andrew Olmsted, who blogged at Obsidian Wings, was killed yesterday in Iraq, where he was serving in the military. Months ago he composed a post to be published in case he died. It's here, and it's heartbreaking. There may be other notes that people serving in Iraq wrote to be read in case they died, but I haven't seen any of them, and I can't imagine they could be more powerful than this one. He says that he doesn't want his death to be used by either side in the debate on the Iraq war, but he also notes that it is easy to gloss over the human costs of war, and that many people do it. Olmsted's post makes that harder to do.


Supreme Court Agrees to Consider Constitutionality of Death Penalty for Child Rape:

Last May, I wrote:

Yesterday, the Louisiana Supreme Court upheld the death penalty for rape of a child under 12. In Coker v. Georgia (1977), the Supreme Court held that the death penalty for rape was unconstitutional. Many commentators had interpreted the reasoning of Coker as precluding the death penalty for anything short of murder and possibly some national security offenses (treason, espionage, and the like). But Coker spoke expressly and repeatedly of rape of an adult, so the question of the death penalty for rape of a child remains open.

Yesterday's decision follows the lead of a 1996 Louisiana Supreme Court case (State v. Wilson), but Wilson decided the question in the context of a pretrial motion, and the U.S. Supreme Court understandably -- given its general preference not to review decisions before a final judgment -- refused to hear the case. The new case, State v. Kennedy, upholds a death sentence, so I suspect the Supreme Court will agree to consider the issue.

The Louisiana opinion is long and detailed, and I can't do it justice with a capsule summary; but here's a particularly interesting passage that tries to apply the U.S. Supreme Court's death penalty methodology that was developed in the recent cases having to do with the death penalty for juveniles and the mentally retarded (one paragraph break added):

Overall, it appears that approximately 30% of capital jurisdictions (15 of 38, including federal) authorize some form of non-homicide capital punishment, a showing strong enough to suggest that there may be no consensus one way or the other on whether death is an appropriate punishment for any crime which does not result in the death of the victim. However, when the direction of change is considered, clearly the direction is towards the imposition of capital punishment for non-homicide crimes. As stated earlier, the number of jurisdictions allowing the death penalty for non-homicide crimes more than doubled between 1993 and 1997.

Most important to our analysis is the fact that four states have enacted laws which capitalize child rape since Wilson, evidencing movement in the direction that this Court thought possible back in 1996 when Wilson was decided. Looked at another way, even after the Supreme Court decided in Coker that the death penalty for rape of an adult woman was unconstitutional, five states nevertheless have capitalized child rape since then, a number which the Supreme Court held in Roper was sufficient to indicate a new consensus regarding society’s standards of decency towards the juvenile death penalty.

In fact, the trend is more compelling than in Roper, given the Roper Court’s reliance on five states abolishing the death penalty for juveniles after Stanford held that the death penalty for juveniles was constitutional. Here, we have five states enacting the death penalty for child rape in spite of Coker, which held that the death penalty for rape of an adult was unconstitutional. Furthermore, it is likely that the ambiguity over whether Coker applies to all rape or just adult rape has left other states unsure of whether the death penalty for child rape is constitutional. These states may just be taking a “wait and see” attitude until the Supreme Court rules on the precise issue. Thus, the fact that only five states capitalize child rape should not pose an obstacle to the Court’s consideration of the issue, given the direction of change, i.e, an increase of five since Coker....

[Moreover,] it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.

My suspicion proved accurate: The U.S. Supreme Court has just agreed to hear the case.


Yale Law Clinic Sues Yale Law Graduate for Bad Lawyering: There's a particularly interesting angle to the Jose Padilla lawsuit my co-blogger Jonathan Adler discusses below: Yale Law School's International Human Rights Law Clinic (representing Padilla) is bringing the suit against a Yale Law School graduate (Yoo '92), for providing bad legal advice.

  Based on the complaint, I don't think Yale Law School ends up looking very good on either side of this one. Yoo's legal analysis was very weak, for reasons we have explored at length here. But I don't think the Yale Law clinic has a strong legal footing, either. First, there's an interesting question whether Yoo would be entitled to absolute immunity or only qualified immunity for the legal opinions he drafted at OLC. My quick look at the cases suggests there's no clear answer to that.

  Second, while I am no expert in civil tort actions, I would think there is a significant problem with causation. As I understand it, the claim against Yoo is that he adopted legal positions in memos that permitted others to perform acts that violated Padilla's rights. I would think that is too far removed to satisfy the causation requirement for a civil tort action.

  UPDATE: Duncan Hollis has some interesting throughts on the case at Opinio Juris.

Padilla v. Yoo:

Via How Appealing comes news that Jose Padilla is suing John Yoo. A press release announcing the suit declares:

John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States.

The Chicago Tribune provides this additional background on the suit, and How Appealing has posted the complaint here. The complaint only seeks nominal damages and a declaration that Yoo authorized illegal and/or unconstitutional detention policies. Even so, I would be surprised were this suit to get all that far.


"There Was a Market Failure

and I was it" -- a great quote from Senator, Presidential candidate, and economist Phil Gramm:

A dozen years ago the then-Texas Senator had beaucoup bucks, a pile of endorsements, and a solid conservative platform [going into the primaries]. But as Mr. Gramm told us after his loss in 1997, "There was a market failure and I was it. People just didn't take to me."

From John Fund, in OpinionJournal's Political Diary.


Top Floor on the Law Blog Ivory Tower?

I'm pleased to report that we were listed as the top vote-getter in the Ivory Tower category on ABA's Blawg 100. Query what that means, but we'll take it.


AALS Conference:

I'm at the AALS conference in New York -- came in late yesterday, and I'll be here today and tomorrow. If you're at the conference, too, come by and say hello! I'll be on one of the plenaries this afternoon ("E-Expertise: How blogs, SSRN, Listservs, On-line Research Resources, and Other Electronic Technologies are Changing the Legal Academy of the 21st Century"), a hot topics panel on the Second Amendment tomorrow morning, and a panel on the future of legal scholarship tomorrow afternoon.


Were the Clintons Particularly Bad for the Democrats?

At The Corner, Mark Steyn writes that the Clintons were bad for the Democratic Party:

The Clintons' leadership of the Democratic Party was great for the Clintons, terrible for the Democratic Party: They lost the House, they lost the Senate, they lost state legislatures and governors' mansions, and in the end Clinton couldn't even bequeath the White House to his Vice-President in a time of peace and prosperity.

In a 2006 Yale Law Journal article Steve Calabresi and I presented data showing that losing power, even state governorships, as a presidential term progresses is common, not an exception. Essentially, we believe that a President and his party are a lightning rod for everything that goes wrong.

Our article can be downloaded at the bottom of this SSRN page. Particularly relevant are Figures 1 and 2 on page 2617 showing governorships by party since 1936.

UPDATE: I was amused by one of the comments below. Justin says that he knew this in high school. His comment brings to mind my observation of the three possible responses to workshop papers at the Univ. of Chicago Law & Economics Workshop in the early 1990s: (1) it's wrong; (2) it's trivial; or (3) it's already been done (usually coupled with the claim that the critic had already done it himself).

If Justin really knew in high school that the President’s party lost governorships, he should have written it up for the political science literature, because we didn’t find any political scientist who had shown this except in limited situations or any that pointed out that the backlash against the President in the states was stronger than the Presidential coattail effect. Perhaps we missed something (the field is huge), but some prominent scholars we consulted didn't mention anything directly on point. Indeed, one suggested that we do a version of our findings for a poli-sci journal.

We wrote in our Yale LJ article:

As James Campbell nicely documents, there is a backlash against the President’s party in the midterm elections for seats in state legislatures. Campbell shows that in state legislative races in presidential election years, the winning President’s party benefits from his coattails, but in midterm elections the President’s party suffers losses in state legislative races that approximately cancel out the gains from his coattails.

Further, in an article published thirty-five years ago, Stephen Turett analyzed incumbent governors’ races in 1900-1969, noticing that incumbent governors were more likely to be reelected in midterm elections if the President was of the opposing party. Turett limited his analysis of this midterm effect to incumbent governors running for re-election and interpreted it as merely offsetting the coattail effect in presidential election years.

When one adds all gubernatorial races to the analysis, as we do in Figures 1 and 2, the backlash against the President’s party in state races during a President’s term is actually stronger overall than the coattail effect in the presidential election year. To be more specific, we find that four years after a party wins a presidential election, it holds on average three fewer statehouses than it had before it won the presidential election. Perversely, winning the presidency seems to lead very shortly to losing power in the states.

Since 1932 there have been eight changes of party control of the White House (1933, 1953, 1961, 1969, 1977, 1981, 1993, and 2001). In every instance but one, the party that seized the White House held more governorships in the year before it took office than in the subsequent year it lost the presidential election. The only exception is that in 1980, Republicans held four fewer governorships than they held in 1992, immediately before the Republicans were voted out of the White House. Similarly, of the eleven Presidents since 1933, every one except two, Kennedy and Reagan, left office with fewer governorships than his party had before he took office, and Kennedy served less than three years.

In addition, if people generally understood that the blacklash / lightning rod effect is stronger than the coattail effect, I doubt that so many states would have moved their elections away from the Presidential election years in an apparently unsuccessful attempt to reduce the effect of Presidential elections on state elections for governorships.


Thursday, January 3, 2008


Also from the resolution "Combating defamation of religions" passed by the U.N. General Assembly (see the post below):

Affirms that the Human Rights Council shall promote universal respect for all religious and cultural values and address instances of intolerance, discrimination and incitement of hatred against any community or adherents of any religion ...

"[U]niversal respect for all religious and cultural values"? Surely this is patently impossible, and in fact contradicted within the same resolution by a provision that says, "Urges States to ensure equal access to education for all, in law and in practice, including access to free primary education for all children, both girls and boys, and access for adults to lifelong learning and education based on respect for human rights, diversity and tolerance, without discrimination of any kind, and to refrain from any legal or other measures leading to racial segregation in access to schooling." Holy war against nonbelievers is a religious value. Racial segregation is to some a religious value and to some a cultural value. Lesser education for girls than boys is to some a cultural value that is at least imbued with religious tradition.

True, they are bad religious and cultural values — but unless one redefines "religious and cultural values" to mean "good religious and cultural values," they surely are religious and cultural values. So either the statement is patently impossible, or (if one does redefine the phrase the way I alluded to) tautological and thus lacking in meaning. But I suppose meaning is too much to expect in this context.


U.N. General Assembly Urges Prohibition of "Ideas ... Aimed at Any Religion or Its Followers That Constitute Incitement to ... Hostility":

Jurist reports this happens last month, and points to this version of the resolution as the one that was passed. The paragraph I quoted above says that the UN General Assembly "Urges States to take resolute action to prohibit the dissemination of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence."

I think U.S. law is right to protect even racist viewpoints, as well as ones that advocate violence. But surely it is right to protect ideas that incite mere hostility to a religion. Anyone who argues Scientology, fundamentalist Christianity, fundamentalist Islam, or for that matter religion generally is foolish or dangerous will say things that are aimed at a religion and constitute incitement to hostility to a religion. The General Assembly resolution aims at the heart of the sort of speech that's necessary for free debate about ideas, not just at the periphery.

I noted two years ago that a similar resolution had been promulgated by the U.N. Office of the High Commissioner for Human Rights Resolution; now it's the U.N. General Assembly. Fortunately, this vote was 95-52, with nearly all the developed countries voted against. Let's hope that coalition continues to hold over the years.


Edwards on Corporate Greed.--

I am watching John Edwards' speech attacking corporate greed (he used the phrase at least 2 or 3 times). One of Edwards' examples of outrageous behavior by a corporation: Maytag closing its plant in Newton, Iowa.

Before posting I saw that Glenn at Instapundit had similar feelings about the speech:

Meanwhile, on the Democratic side, John Edwards is the big loser. Not from the vote, but from the absolutely awful speech he's giving right now. I think he knows it's awful, too, as he's blinking about twice per second.



Obama Declared Winner.--

Fox is declaring Obama the winner in Iowa.

UPDATE (9:50pm): With nearly 90% of the Democratic votes in, Obama is leading by 7% (at 37%). Edwards and Clinton are tied at 30%.

Related Posts (on one page):

  1. Obama Declared Winner.--
  2. Huckabee Declared Projected Iowa Winner.--

Huckabee Declared Projected Iowa Winner.--

Fox News is presenting Huckabee as the projected winner in Iowa—“an early blowout for Huckabee."

The Democratic results so far show three candidates in a virtual tie.

1st UPDATE (9:05pm ET): With 25% of precincts reporting, Obama leads Edwards and Clinton by 1%. Obama also led in Fox entrance polls. And I see that Des Moines County and Johnson County (Iowa City) have yet to report, both presumably areas of strength for Obama.

2d UPDATE (9:13pm ET): With half of the counts in, Obama now leads by 2%.

3d UPDATE (9:17pm ET): Still virtually no results from Story County (Ames-Iowa State U.), Des Moines County, and Johnson County (Iowa City-U of Iowa).

4th UPDATE (9:22pm ET): Still nothing from Linn County (Cedar Rapids). Obama leads by 4% over Clinton and Edwards.

5th UPDATE (9:27pm ET): I should note that the reports showing 71% of the Democratic precincts reporting is even more misleading than usual. Even within particular counties, it appears that the smaller precincts may be in, but the larger precincts are still not reporting. All this looks good for Obama and bad for Edwards.

Related Posts (on one page):

  1. Obama Declared Winner.--
  2. Huckabee Declared Projected Iowa Winner.--

Law Review Submissions Policy:

An articles editor for a Top 20 law review writes:

I have for some time been thinking that it would be best to simply eliminate accepting paper copy submissions for [our law review]. The online system we primarily use (and where we receive the vast majority of our submissions) is far superior to paper copies. Indeed, the only thing that paper copies do from my end is give me more tedious work that cuts into the substantial time I must give to other editing responsibilities, as I must log each submission my hand. It does so while giving authors no benefit that I can see.

I thus see no point to paper copies. They only add work for absolutely no benefit. I hear, however, that some professors actually prefer sending paper copies. The only halfway decent justifications I have heard are (1) that they can send a personalized cover letter via mail (this justification makes no sense as our online system allows for the submission of cover letters); and (2) that authors think they have a better chance of getting their submission promptly reviewed because the editor who reviews paper submissions will give them a quick look when logging them into the law review's system. This latter explanation is at least plausible, but my experience is that this gives the author no advantage over online submissions, as I and other editors do the same thing with online submissions.

I write to ask for your help. I would like more information on this issue from professors. As your blog is read by a wide array of professors, I was wondering if you could put a post on your blog asking professors to comment on this issue, so I and others can get better information.

A good question; what do our law professor readers think?


California Sues EPA Over Waiver Denial:

California filed suit against the Environmental Protection Agency challenging the EPA's denial of a waiver of preemption under the Clean Air Act for the state's greenhouse gas emission regulations. Here's coverage in the Washington Post and New York Times.

One interesting aspect of the suit, discussed here on the Warming Law Blog, is that California filed suit in the U.S. Court of Appeals for the Ninth Circuit, rather than in the D.C. Circuit. Most assume the Ninth Circuit would be more receptive to California's arguments, but most also assumed the suit would be filed in D.C., so what gives? According to the Sacremento Bee:

Generally, decisions by federal agencies must be challenged in the District of Columbia Court of Appeals, which tends to be more conservative than the 9th Circuit.

But lawyers backing California argue the state isn't constrained to file in Washington, D.C., because the Dec. 19 ruling left out key language stating that the decision was "of national scope and impact."

"They did not put that boilerplate in, so we can challenge it anywhere," said attorney David Bookbinder of the Sierra Club, which has worked with the state to defend the emissions law.

Was this a deliberate choice by the EPA or an oversight? A third option: EPA legal staff working who drafted the Administrator's letter to EPA knowingly left it out, and none of the political appointees caught it. In any event, seeing this suit in the Ninth adds an interesting twist.


Advantage--Prediction Markets!:

CNN Money:

Robert Shiller, a Yale economist who had argued for years that a bubble was forming in real estate prices, points out that one group was on target about where prices would go - investors in a real estate futures market that he helped set up on the Chicago Mercantile Exchange.

Starting in May 2006, the CME set up futures contracts for 10 metropolitan real estate markets, allowing investors to bet whether prices would go up or down and by how much.

By the end of 2006 those futures were pointing to real estate price declines between 5 percent and 7 percent in those markets, Shiller said. That ended up in line with the 6.7 percent annual decline in the October reading of S&P/Case-Shiller home price index, which was the largest drop recorded in that 20-year-old price measure.

"I'm not normally an advocate of market efficiency, but there's something to be said when you're putting money on the line with your prediction, rather than just talking," he said.

Those futures today are far more bearish about future housing prices than most current economists - foreseeing an additional 4 percent to 14 percent drop in prices over the next year.


Wednesday, January 2, 2008

Law School Classes One Should Definitely Take If One Wants To Practice in the Area:

Last year I posted, and asked our readers, about classes every law student should take. A reader now asks a related question:

I'm not sure what field of law I want to practice so I am constantly wracking my brain trying to figure out what classes I should take as my 2nd and 3rd year electives. Although, after studying law for a semester, I am more comfortable with the idea that by spending enough time reading hornbooks and extensively researching, a lawyer can start to practice in a field in which he didn’t take a single class while in law school, I am concerned that there may be some field(s) of law in which it might be significantly harder than others to do that. I’d like to know about that so that I can weigh taking classes in such an area....

Any thoughts?


How Political Ignorance Causes Political Nepotism:

In a September interview with the New York Sun, the soon-to-be assassinated Benazir Bhutto explained how political ignorance fosters political nepotism by leading voters to support canddiates who are relatives of popular politicians (hat tip Kerry Howley):

Q: Why do you think that the U.S. seems to have a harder time with women at the highest level of power than other countries?

A [Benazir Bhutto]: In a country like Pakistan or India, when a charismatic leader dies, people are not sure that the traditions he symbolized will continue—there’s a lot of illiteracy and there isn’t the same access to information. So they tend to transfer allegiance from a male leader to a female descendant, in the hope that his policies will be continued. But in Westernized societies, it’s a little different, because people have greater education and greater access to information—they don’t have the same need to be sure of the message of the leader.

Because voters know very little about the details of candidates' ideology and issue positions, they use a candidate's family affiliation with a popular political leader as an information shortcut. Voters could instead analyze each candidates' qualifications and ideology in detail (though, as Bhutto noted, that may be impossible for those who are illiterate or poorly educated). However, rational ignorance ensures that most of them have neither the time nor the incentive to do so. Bhutto herself, of course, rose to power in Pakistan in large part because voters associated her with her father, a popular politician who had been executed by a military dictator in 1979.

Bhutto was wrong to assume that this logic is limited to female politicians in economically backward societies. Right here in the United States, George W. Bush would probably never have become president if not for the voter name recognition he enjoyed by virtue of being the son of a former president. Hillary Clinton would not now be a frontrunner for the Democratic nomination if not for her association with her popular ex-president husband. Few of the many Kennedys who have achieved elected office would have done so absent their family name. To paraphrase one of Senator Ted Kennedy's electoral opponents, he would never have made it to the Senate if his name were not Edward Moore Kennedy but Edward Moore.

Is this kind of ignorance-induced voter nepotism a bad thing? I would suggest that it often is. Political leaders who achieve high office in large part because of nepotism are likely to be less qualified, on average, than those who reach it by virtue of their own achievements. This is not surprising; it takes a lot less ability to win office on your daddy's or spouses coat tails than to do so without it. George W. Bush's incompetence on many issues is a case in point. Most of the Third World politicians who became heads of government by this means were also failures in office (see the examples Kerry Howley gives in her post linked above). Benazir Bhutto, for all her recent courage in opposing military dictatorship and radical Islamism, was ineffective in her two terms as prime Minister of Pakistan in the 1990s. Isabel Peron's disastrous term as president of Argentina after the death of her husband Juan Peron helped set the stage for a brutal military dictatorship (not entirely unlike the way that Bhutto's failures in office helped pave the way for Purvez Musharraf's military coup).

On rare occasions, the nepotism information shortcut pays off. Winston Churchill was first elected to Parliament in large part because voters associated him with his father, Lord Randolph Churchill, a popular Conservative politician of the 1880s. However, Bush, Bhutto, and the lesser Kennedys are more typical beneficiaries of ignorance-induced political nepotism than Churchill.

As Bhutto pointed out, this form of nepotism does have one potential advantage: it can sometimes pave the way for women to reach high office in sexist patriarchal societies that might not otherwise accept them in such positions. I don't deny that such achievements have some symbolic value. But I'm not convinced that they're worth the high price we pay for them in the form of policy disasters caused by poor leadership. Moreover, it's not clear how much of a breakthrough for women such events really represent if people recognize that the women in question reached high office primarily because of their family connections. To my mind, the true breakthroughs for women in underdeveloped societies are likely to come when their opportunities and social status increase as a result of economic development. Ineffective political leaders of either gender are likely to set back such development - and with it the cause of women's rights.


Limiting Drunk Drivers to Small Vehicles:

A friend of mine mentioned that he'd heard that in Austria, people who had some number of drunk driving convictions were allowed to drive only a particular kind of very small car. That struck me as an intriguing idea.

Naturally, to implement this, the legal system would have to decide what the threshold number should be, and also how long they should lose the license for altogether. At one point on the continuum, one might not want to constrain the driver at all. At the other extreme, one might insist on barring the person from driving altogether. Still, I take it that at some intermediate point one might conclude that

(1) someone is enough of a menace that their liberty to drive should be constrained at least for some time even once they're let out of jail, but

(2) it would be too much of an economic burden on them and their families to strip them of a driver's license altogether.

If that's so, why not limit the person to the kind of vehicle that would cause the least possible damage to others, if it is driven drunk? It's true that all motorized vehicles can kill people other than the driver, but some are more likely to do so than others. If the person is to be let out on the road, might as well minimize the risk to bystanders.

One possible mandatory vehicle is a motorcycle, though perhaps there the risk of injury to the driver in case of an accident (which can of course be a non-drunk-driving accident, or even one in which the driver is largely innocent). Another might just be a very small car. True, there's a tradeoff between risk to people in other cars and risk to the driver's passengers. But I take it that most adult passengers are more likely to have in some measure knowingly assumed the risk than are outsiders, since they know they're getting into a small and thus somewhat more dangerous car. I would have some concern for their welfare, but not as much as for the welfare of the drivers and passengers of other cars.

Finally, while this is obviously a restraint on liberty, it strikes me as a pretty justifiable one (assuming it works). Drunk driving is rightly made a crime; the legal system may well constrain a person's liberty for committing this crime, especially since he has shown himself to be something of a menace to others' lives. This solution may preserve more of the drunk driver's liberty than the alternative, since the alternative may well, at least in some situations, be a total ban on driving. One can also try this sometimes-useful (though of course hardly perfect) libertarian rule of thumb for deciding the proper rules for government-owned shared resources: If the resources were privately owned, would reasonable owners who had full information about their customers impose such a constraint on their customers in order to better protect other customers? The answer, I think, would be yes (again, assuming the proposal works), which would cut in favor of this proposal.

But that's just my quick and tentative reaction; I'd love to hear what others think. I'd also like to know something more than just a vague, unsourced rumor about whether any jurisdictions have indeed experimented with this.


Equino-Human historical fantasy fiction:

My Independence Institute colleague Rob S. Rice has written a new book of historical fiction, titled Archival: Most Secret. The book tells three loosely-related stories: about a dissolute Scottish officer who ends up fighting in the Battle of New Orleans, about the declining years of Randolph Churchill, and about a British airman who is shot down over Crete in WWII. The common thread of these stories is a secret British ministry which has been involved with human-animal transformations. Each of the stories involves an equine-related transformation. You can order the book for $14.95 from Lulu, where you can also read the opening pages. I thought that the stories were interesting, and that all of them picked up steam as the stories progressed. That said, the format of the book (reproducing the full text of various documents purported to come from secret British archives) results in the plot moving forward relatively slowly on a per-word basis--especially in the Churchill story. But if you like horses and U.K. historical fiction, it's worth your time to read a few pages, and decide if the book is your cup of tea.


Methods of Execution in France, 1792 to 1981: Sorry for the gruesome subject matter, but my post on foreign law and methods of execution brings to mind the practices used in one of the countries popular among the Justices who favor looking to foreign law: France, or as Justice Breyer would put it, La République Française.

  Wikipedia has a fascinating history of methods of execution in France. It seems that from 1792 to 1981, when France abolished capital punishment, the only allowed method of execution was the Guillotine. The Guillotine was originally designed in the late 18th Century to be a more humane method of execution: the idea was that it would be fast, painless, and certain.
The basis for the machine's success was the belief that it was a humane form of execution, contrasting with the methods used in pre-revolutionary, ancien régime (former regime) France. In France, before the guillotine, members of the nobility were beheaded with a sword or axe, while commoners were usually hanged, a form of death that could take minutes or longer - other more gruesome methods of executions were also used, such as the wheel, burning at the stake, etc. In the case of decapitation, it also sometimes took repeated blows to sever the head completely. The condemned or the family of the condemned would sometimes pay the executioner to ensure that the blade was sharp in order to provide for a quick and relatively painless death.
  However, it seems that the use of the Guillotine was plagued by concerns that it was not as swift and painless as it was designed to be. Critics argued that in fact those executed by the Guillotine suffered greatly in the seconds after the blade fell:
From its first use, there has been debate as to whether the guillotine always provided as swift a death as Dr Guillotin hoped. . . . . [in light of] the possibility that the very swiftness of the guillotine only prolonged the victim's suffering. The blade cuts quickly enough so that there is relatively little impact on the brain case, and perhaps less likelihood of immediate unconsciousness than with a more violent decapitation, or long-drop hanging.

Audiences to guillotinings told numerous stories of blinking eyelids, moving eyes, movement of the mouth, even an expression of "unequivocal indignation" on the face of the decapitated Charlotte Corday when her cheek was slapped. Anatomists and other scientists in several countries have tried to perform more definitive experiments on severed human heads as recently as 1956. Inevitably the evidence is only anecdotal. What appears to be a head responding to the sound of its name, or to the pain of a pinprick, may be only random muscle twitching or automatic reflex action, with no awareness involved. At worst, it seems that the massive drop in cerebral blood pressure would cause a victim to lose consciousness in several seconds.
Anyway, that's Wikipedia's take; I don't know how accurate it is.

What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?: Several Supreme Court Justices believe that foreign law and practice can help elucidate the meaning of the United States Constitution. They contend that the experience and practices of other countries are relevant to the meaning of our founding charter; what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us. This raises an interesting question for those following Baze v. Rees, next week's case on the constitutionality of methods of execution: In countries that have the death penalty, how do they carry out their executions?

  Unfortunately, I couldn't find a good summary of the methods of execution in all 74 countries that have the death penalty. However, I did learn that the clear leader in terms of experience with capital punishment is China: It is estimated that China is responsible for about 80% of the executions worldwide every year. In China, the traditional method of execution appears to be the firing squad. Here's how one website described the process:
Executions are often carried out immediately after a public sentencing rally and the criminal's family is made to pay for the bullet. The prisoner's arms are shackled behind them and they are made to kneel down before receiving a single bullet fired at close range into the back of the head or neck by a soldier or policeman or by a bullet fired into the heart from behind using an automatic rifle.
  However, there is a growing movement in China to replace this with lethal injection; lethal injection was first used about ten years ago and appears to be gaining in popularity as a more humane method of execution. According to the USA Today, lethal injection in China is implemented using so-called "death vans," mobile execution chambers that travel from town to town. One person has estimated that as much as 40% of Chinese executions currently are carried about by the "death vans" instead of by firing squad. Unfortunately, I was unable to find anything on the specific cocktail of drugs the "death vans" use to carry out executions in China.

  In any event, China is of course only one example. Those who believe foreign practices are relevant to the meaning of the U.S. Constitution would want to look more broadly at many other nations, including Saudi Arabia and Iran, two countries with high execution rates. And of course I'm not endorsing this method of Constitutional interpretation: I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution.

D.C. Fires Its Gun Lawyer:

Tony Mauro reports on an interesting development in the District of Columbia v. Heller, the pending Second Amendment case before the Supreme Court. Despite his work on the District's primary brief, Alan Morrison has been fired by the city, apparently because he was seen as a "loyalist" of ousted D.C. attorney Linda Singer. Morrison is an excellent lawyer, so I find the District's actions hard to fathom — but I suppose it's also a bit of bizarre good news for the gun rights side in the case. (Hat tip: How Appealing.)

UPDATE: The Washington Post reports here.


Rudy Giuliani and the Authoritarianism Question: I very much appreciate John McGinnis's libertarian case for Rudy Giuliani. At the same time, it seems to me that there's a significant objection to Giuliani from a libertarian perspective: Many consider him the most authoritarian of the Republican nominees and the least concerned with the Rule of Law. (To get a flavor of the critiques, consider this video exchange between Megan McArdle and Dan Drezner. For a particularly harsh critique from a left perspective — over the top, in my view, but worth mining for evidence amidst the rhetoric — see here). I'd be very interested in hearing responses to these concerns from libertarianish Giuliani supporters.


I like this site, and if you do too, you might want to vote for it in the ABA's Blawg 100 "Generally Speaking" category. "You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once." (I voted for How Appealing as well as Overlawyered.)


Prof. Rick Garnett on Why He Supports Fred Thompson for President:

From Prof. Rick Garnett — please see here for more on this feature:

A candidate for President should present to the voters a reasonably attractive personality, experience and evidence of sound judgment, a clear-eyed understanding of the challenges and opportunities our Nation faces, and an array of plausible, sound policy proposals. (Fundraising prowess and skeleton-free closets are nice, too.) He or she should also — and this is crucial — understand and appreciate the close, rich connection between the enjoyment of human liberty and the structural features of the limited government for which our Constitution is a blueprint.

An eminent scholar of constitutional law, echoing James Madison and many other luminaries, has observed that "[t]he genius of the American Constitution lies in its use of structural devices to preserve individual liberty." I agree. And, in my view, the candidate who seems most inclined, and best prepared, to honor this "genius" is Sen. Fred Thompson.

Every candidate has a stump speech and each has floated, endorsed, and promised — ideally, without contradiction or inconsistency — a dizzying array of programs, initiatives, and — of course — "changes." Informed voters realize, though, that so much of what presidential candidates propose and embrace is, to a great extent, beyond the practical capacity of Presidents to get done. A candidate can say — and they all do — that he or she will "reform health-care" or "restore traditional family values" or "defend our borders", but sophisticated citizens understand that a President's ability to deliver these goodies is constrained by Senate rules, powerful House Committee chairpersons, the stock market's performance, and the like.

We need to ask, then, not only about a candidate's grab-bag of wonkery and litany of bullet-points, but also about his or her animating commitments. Sen. Thompson has staked out what I think are realistic and responsible positions on a wide range of important issues. More important, though, he has developed and shared, in a way that goes well beyond candidates' usual sound-bite sloganeering, the "first principles", which arise "out of the documents of Nation's founding and the wisdom of the ages", and that "guide [his] approach to the issues that are crucial to our Nation's future." (Go to the campaign web site, and see for yourself.) This exposition is one that, in my view, commends Sen. Thompson's candidacy to all of us who value the rule of law and cherish our Constitution's particular "genius."

Sen. Thompson understands — as did the Framers — that (in his words) "[g]overnment must be strong enough to protect us, competent enough to provide basic government services, but limited by the delineated powers in the Constitution." To achieve and maintain such a government — in a way that protects and respects human freedom — is, of course, no small challenge. Our constitutional response to this challenge reflects the considered belief that, as the Supreme Court has put it, "liberty of the person inheres in [constitutional] structure." Put differently, and as Chief Justice Rehnquist observed, this "constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties."

These are not airy abstractions, far removed from real-world, "kitchen table" concerns. Our President must understand — and I believe Sen. Thompson does — the Constitution's end (human freedom) and means (federalism, separation of powers, and limited government). This matters more, all things considered, than the extent to which his canned debate answers please dial-turning focus-group members. "Our Constitution," he recognizes, "innovatively guarantees our liberties by spreading power among the three branches of the federal government, and between the federal government and the states."

(For more from Sen. Thompson on this point, go here.)

Now, among the President's most important responsibilities — second only, perhaps, to his national-security duties and his obligations as Commander in Chief — is the identification, nomination, and support of Executive officials and federal judges who understand the Constitution's "innovative" design and their own role in its service. They must be willing to enforce the Constitution's limited-government and separation-of-powers features and, at the same time, respect the limits on their own powers. Federal judges must appreciate — they must really believe — that the Constitution protects freedom not so much by authorizing them to resolve divisive moral and policy questions as by structuring government in a way that facilitates the enjoyment of ordered liberty.

No doubt, the valuable assistance Sen. Thompson provided during the confirmation of our new, excellent Chief Justice both confirmed and deepened his understanding of the importance of good judges. And, once again, Sen. Thompson's clear statement of "principles" justifies our confidence: "A free and independent judiciary that interprets the law by adhering strictly to legal text and respects its limited role in our system of government is essential to our security and freedom, and we need judges who understand that role if we are to preserve our republic and freedom."

Finally, this last statement adds texture to Sen. Thompson's firm, consistent, multi-faceted commitment to the dignity of human life, which has earned the respect and endorsement of a wide range of pro-life groups and individuals. Some might wonder whether Sen. Thompson's pro-life views are in tension with his limited-government principles. They are not. Quite the contrary, in fact. At the end of the day, no political community can be what ours aspires to be if it excludes children in the womb entirely from the law's protection. Even a limited government limits private violence. Putting aside the merits of the moral question, though, there exist few greater insults to the freedom-protecting structural features of our Constitution than the Supreme Court's gross and arrogant overreaches in the Roe and Casey decisions. Only a presidential candidate who sees — as Sen. Thompson does — these rulings for what they are can, at the end of the day, be taken seriously as a friend of ordered liberty through limited government.


Prof. Brad Smith on Why He Supports Mitt Romney for President:

From Prof. Brad Smith -- please see here for more on this feature:

For politically oriented libertarians, politics is the art of picking the most libertarian candidate who has a chance of winning.

Bill Richardson has no chance of winning, and the other Democratic hopefuls offer nothing to supporters of limited government. On the Republican side, we can safely skip the Ron Paul debate -- he is not going to be the next president of the United States. John McCain sometimes blunders into support of limited government, but his usual reaction to his personal whim of the day is that government should do something about it. And, his honorable service to his country notwithstanding, his unstable personality and temper make him uniquely unqualified for the presidency.

That leaves three electable candidates who can offer some legitimate claim to libertarian sympathies -- Mitt Romney, Rudy Giuliani, and Fred Thompson. Romney is an easy choice.

Governor Romney's tax policy should make a libertarian's mouth water. It begins with the no-brainers -- make the Bush tax cuts permanent, eliminate the estate tax, and nix any increase in social security taxes. In addition, Romney has proposed substantial reductions in the corporate tax rate, where the United States rate is now one of the highest among the Western democracies, and in individual income tax rates, across the board. He has proposed eliminating all taxes on dividends and interest for those earning less than $200,000. One of Governor Romney's most important yet overlooked proposals is to make all spending on health care premiums and medical expenses tax deductible, an initiative that will do much to rationalize health care markets by putting individual coverage on the same plane as employer-provided health plans.

Romney is a talented businessman with an understanding of how start-up enterprises and a dynamic, growth oriented economy work. He understands how Sarbanes-Oxley is costing the U.S. is predominant place in world capital markets, and will take an ax to the Washington regulatory machine. As the Club for Growth says, Governor Romney has “an intuitive appreciation for free markets.” It's in his blood.

Romney is a strong supporter of free trade, as befits his background helping companies compete in the global economy. On immigration, Romney has exactly the right position -- opposition to illegal immigration (which libertarians should oppose if only because it undercuts support for legal immigration) while acting, “to encourage legal immigration and streamline the system.”

At one time, Romney, Rudy and Thompson all supported the egregious McCain-Feingold campaign finance bill. Rudy and Fred have since trimmed their sails, but only Romney has forthrightly admitted that his prior support was in error, and come out four-square in favor of the law's repeal.

Romney supports school choice and home schooling. And Mitt will appoint good judges.

Of course, it is one thing to have an agenda, and another to deliver. Both Romney and Rudy have shown an impressive ability to make headway on tax and spending issues in the face of overwhelmingly liberal legislatures and political cultures deeply attached to high levels of regulation and taxation. Despite a generally admirable voting record, Senator Thompson lacks the executive experience of Governor Romney and Mayor Giuliani, and it is difficult to name any issue, during his eight years in the Senate, on which he took the lead in promoting smaller government. The one bill which he played a critical role in passing was the odious McCain-Feingold legislation.

On its 2006 Governors Fiscal Policy Report Card, the Cato Institute rated Romney 12th overall and 7th of 26 Republicans. In 2004, Cato put Romney 11th overall, and 8th among Republicans. The Club for Growth has praised his “support for broad based tax cuts in liberal Massachusetts.” It is true that in addition to cutting spending in order to balance the budget deficit he inherited, Governor Romney supported a variety of fee hikes and the closing of “loopholes” in the tax code. Given the overwhelming Democratic majorities in the state legislature (137-23 in the House, 33-7 in the Senate), it is not realistic to think that the budget could have been balanced by spending cuts alone. Politics is the art of the possible --as it is, many of Governor Romney's spending vetoes were overridden by the legislature. In Washington, Romney will not face Democratic legislative majorities of such magnitude. Meanwhile, Governor Romney was victorious in what the Club for Growth calls a “bloody fight” with the legislature over the state capital gains tax, winning a rebate of $275 million for state taxpayers. He proposed reductions in the state income tax. During his tenure, state spending rose by an average of just 2.22% per year, versus annualized inflation and population growth of 3.0%. By comparison, under Mayor Giuliani spending in New York City rose at an average rate of 2.84%, versus population growth and inflation of 2.9%. Over a four year presidency, those differences would add up to nearly $80 billion in reduced government spending.

As Governor, Romney actually vetoed an increase in the state's minimum wage. He also successfully vetoed a legislative effort to put a moratorium on the opening of charter schools.

Governor Romney is a man who knows how to get things done, from his success in business, to turning around the Salt Lake Olympic Games, to running a remarkable campaign for President that most observers thought was totally improbable just two years ago. Halting and reversing the growth of government requires more than just the right views -- it requires the right abilities. Governor Romney has those abilities.

In foreign policy, libertarians were among the staunchest foes of communism during the Cold War. We should be equally in the forefront in the battle against the current threat to Western liberal values, Islamic extremism. The Cold war lasted over 40 years, and although it sometimes involved significant military action (most notably in Korea and Vietnam for the U.S., and in Afghanistan for the USSR), the principle antagonists avoided direct conflict on the battlefield. It was a series of small proxy wars, intelligence battles, and economic and diplomatic pressure. The United States must begin to think of the fight with Islamic extremism in similar terms -- as a long commitment in which conventional armies are of limited use. Romney is a candidate who is serious about the threats presented: resolute, but not bellicose; prepared to use force when necessary, but mindful of the limits of conventional warfare; aware of the need to win hearts and minds but not naïve about the nature of our enemies. Trade, commerce, and appropriate restraint will mark a Romney foreign policy.

Libertarians must understand that the Democratic nominee is going to be committed to a substantial growth in government, will probably be working with an even more statist Democratic Congress, and will appoint judges who see the Constitution's restraints on government power as obstacles to overcome rather than limits to heed. Governor Romney has demonstrated the ability to plan and run a first rate campaign, and to reassemble the elements of the Reagan coalition (including its non-libertarian elements) that resulted in the most libertarian Presidency of the last 80 years. He has a proven record of executive experience that Senator Thompson cannot match. While Governor Romney and Mayor Giuliani offer similar economic prescriptions and have each demonstrated ability to see them through In hostile circumstances, the Governor's opposition to McCain-Feingold, support for free trade (the Mayor has opposed NAFTA), and more restrained attitude toward the use of U.S. power abroad make him the preferred choice. His pro-growth tax proposals, proven record of controlling and even rolling back government spending and regulation, support for basic individual freedoms such as home schooling and the right to bear arms, and ultimately his ability to defeat the whichever unrepentant statist wins the Democratic nomination, make him the place where libertarians should be in 2008.


Prof. David Beito and Scott Horton on Why They Support Ron Paul for President:

From Prof. David Beito, cowritten with Scott Horton — please see here for more on this feature:

Voters who want more liberty and smaller government have only one realistic choice in the upcoming presidential race: Dr. Ron Paul. No other candidate comes close to matching his record. For more than three decades, he has consistently opposed spending, tax increases and burdensome regulation.

Paul is perhaps the most dedicated defender of free trade in the history of American politics. For this reason, he votes against agreements such as NAFTA, the WTO, and CAFTA, which advance managed trade more than they do free trade; empowering unelected bureaucracies and pitting one country against another. Instead, Paul wants the United States to follow Milton Friedman's call to lead by example, reducing trade barriers, regardless of what other countries do.

"Free trade is not complicated," Paul argues, "yet NAFTA and CAFTA are comprised of thousands of pages of complicated legal jargon. All free trade really needs is two words: Low tariffs." Paul is the best hope to breathe life into the largely moribund unilateral free trade tradition championed by Adam Smith, David Ricardo, Richard Cobden, and Frederic Bastiat. By contrast, Fred Thompson, who is probably the best of the other candidates on this issue, has voted to impose sanctions on Japan for failing to reduce tariffs.

Paul's unilateral approach combined with his calls for a foreign policy of humility, prudence, and diplomacy stands in stark contrast to other candidates who vow to meddle in the foreign affairs of other countries through sanctions and military force. Paul, of course, is the only Republican to call for ending the embargo on Cuba. He insists that private property rights and free markets are the only answers for Latin America, but knows that by trying to force these principles, we only drive their people toward socialism.

Paul breaks completely from the others in monetary policy. His long-term goal is to phase out the Federal Reserve, which he compares to a price fixing agency. As recent events, such as the lending crisis, devaluation of the dollar and roller coaster on Wall Street have shown, the Fed is incapable of managing the money supply in a world of uncertainty and constant flux. Paul would follow the course recommended by Nobel prize-winning economist F.A. Hayek, fully legalizing competition in currencies as well as eliminating legal tender laws and capital gains taxes on gold coinage.

Paul is the most consistent champion of civil liberties in the presidential race. He voted against the PATRIOT Act and has fought against the Real ID, personal income tax and attacks on habeas corpus.

Among the Republicans, Paul stands alone in calling for an end to the ruinous federal war on drugs. By contrast, none of the other Republican candidates will even endorse the moderate reform of letting states legalize medical marijuana. He is also unique in calling attention to the racism inherent in the drug war and the death penalty.

Only Paul has a realistic plan for Social Security. He will allow young Americans to opt out. To pay for the transition costs, and ensure that no one is thrown out on the street, he will close the foreign bases and reorient the military to national defense rather than world policing. Such a policy will foster peace and stability in the world. As examples such as Iraq, Iran, and now Pakistan show, foreign adventurism only leads to blowback and stokes anti-Americanism.

According to Michael Scheuer, the man whose bin Laden Unit at CIA gave Bill Clinton ten chances to capture or kill bin Laden before September 11th, Dr. Paul is the only candidate running who truly understands the terrorist threat and what should be done about it. Paul is determined to finally get those al Qaeda members who attacked and continue to threaten our country, while at the same time reversing the policies that drive their recruitment efforts.

No candidate, of course, is perfect. We differ with Paul on immigration and abortion. Even in these cases, however, he compares favorably with his opponents. While Paul, like Thompson, has spoken in favor of ending birthright citizenship for the children of illegal immigrants, he believes that a Constitutional amendment is necessary to make the change. And although Paul, an obstetrician, favors abortion restriction, he will allow the states to choose. Given the plurality of views on abortion, this is a sensible compromise.

Paul has shown time and again that he will act according to his conscience regardless of the personal consequences. When a draft resister named Paul Jacob went on trial in the early 1980s, Ron Paul did not hesitate to help. At considerable political risk in a time of Cold War, he traveled to the trial at his own expense and spoke on behalf of a powerless young man. This is the kind of courage we need in a president.

Ron Paul, the champion of the Constitution, the Air Force veteran for peace, the doctor for free market medicine, is by far the strongest candidate to face Hillary Clinton in the general election. He is the only member of the Congress to win three times as non-incumbent and has repeatedly won reelection by overwhelming majorities despite attempts of Republican leaders, including George Bush and Tom Delay, to defeat him.

Voters of all political descriptions, including anti-war and Reagan Democrats, independents, moderates, and conservatives have rallied around this man, in large part because they know he means exactly what he says and will stand up for what he believes in. If he wins the Republican nomination, most of the rest of the 68 percent of Americans who say that we're "on the wrong track" so far in this new century will be on board the Revolution by fall.

Ron Paul is hands-down the best hope for real change; for liberty, economic freedom, and limited government in this presidential race. His efforts to spread the message of individualism and constitutional government have already changed America. With your help, Dr. Paul can win and restore the republic.


Prof. John McGinnis on Why He Supports Rudy Giuliani for President:

From Prof. John McGinnis -- please see here for more on this feature:

While I am now a resident of Chicago, I lived in New York City for the duration of Rudy Giuliani's mayoralty. My support for his presidential candidacy stems from watching him transform a derelict, sclerotic and dangerous city into the vibrant urban center it is today. He did so by promoting the classical liberal virtues of public order, private accountability and entrepreneurial freedom that are sorely needed at the federal level. His triumph in the face of entrenched ideological, partisan and special interest opposition suggests he can succeed in Washington, making good the old adage that if you can make it in New York, you can make it anywhere.

At the time Rudy Giuliani was elected mayor, New York was in danger of falling apart and becoming an urban shell. Crime was out of control, with more than 2000 murders a year. There were large areas of the city where I was afraid to venture. A growing proportion of the city was on welfare. The Crown Heights riots had revealed the costs of treating people as members of ethnic groups rather than as individuals linked by civic bonds. Because of the low quality of life and high taxes, middle-class citizens were fleeing the city.

Rudy Giuliani turned this all around. He understood that civil order is the foundation of a prosperous and flourishing society and thus focused on policies that radically reduced crime of all kinds. One cannot say of many politicians that there are people alive because of their policies, but without Rudy Giuliani's leadership many walking the streets of New York today would have faced an early death.

Giuliani also understood that personal accountability provided the best opportunities for escaping poverty. He substituted workfare for welfare. Just as there are people were alive today as a result of Giuliani's policies, there are many more who are earning a decent living and self-respect.

But Giuliani did not simply restore order, he recognized that the conditions for enterprise and freedom required substantial tax cuts and deregulation. It is a tribute to the sum of his policy choices that today most New Yorkers want to stay New Yorkers, and that city has once again a claim to being the greatest city in the world.

To be sure, Giuliani is not solely responsible for the revival of New York. Impersonal forces, like the stock market boom and the decline of the crack epidemic, played important contributing roles. But huge forces militated against regeneration as well. Every day New York's leading newspaper delivered a wide range of bad ideas to the doorsteps of its most influential citizens. Its public sector sustained powerful unions with a vested interest in preserving the status quo.

Giuliani personally held these reactionary forces in check with his relentless stress on the sound political principles of civic order, personal accountability and freedom. Like Margaret Thatcher, he forced the opposition to change so that for the foreseeable future no viable politician in the city will advocate a return to the culture of dependency and the toleration of low standards of social conduct.

The values that were at the heart of the Rudy Giuliani's mayoralty would serve him well as President. Just as there needs to be respect for civic order in city for it to thrive there needs to be respect for global order, particularly in an age of weapons of mass destruction, for the United States to be secure.

The mayor's insistence on personal accountability unites social conservatives and libertarians and would help him secure the breadth of the conservative coalition necessary to govern as President. He is also a strong supporter of federalism — the constitutional structure most amenable to that coalition. Federalism simultaneously allows states to choose social norms that serve their citizens and citizens to choose states that serve them the best.

Mayor Rudy Giuliani successfully acted on his understanding that the greatness of America has been that its institutions foster both respect for the rule of law and a love of freedom, including entrepreneurship. A President Giuliani would have both the vision and determination to maintain, renew, and improve these institutions.


Libertarianish Law Professors on Why They Support Their Presidential Candidates:

My coblogger Ilya Somin had an excellent idea — invite libertarianish law/history/economics/public policy professors we know and trust to tell us (and you) why they support the Presidential candidate they've chosen to support. Today, we'll post several responses from these professors, unedited by us (except insofar as our choices of whom to invite necessarily involved a form of editing).

We limited this to "libertarianish" because we wanted feedback that would be helpful to fellow pro-limited-government folks; the adjective is designed to cover a fairly big tent, but still focus on those who are generally not far from our views. We limited this to professors in law/history/etc. because we wanted someone who is more likely to have thought through the matter the way we're professionally inclined to, and to explain the matter the way we would. And we limited this to professors at least one of us knows and trusts because we are more confident we'll get candid and thoughtful feedback from them. We also deliberately sought feedback from people outside our little Conspiracy. These are all rough proxies, we realize, but our sense is that they are generally useful ones.

As a result, we're happy to say that we have short essays in hand from law professor John McGinnis, supporting Giuliani; from history professor David Beito, supporting Paul; law professor Brad Smith, supporting Romney; and from law professor Rick Garnett, supporting Thompson. We realize the choices of supporter for each candidate are idiosyncratic, and others may well have chosen other people. But we had to make some choices, and these reflect people whom we knew, who we thought would fit the criteria we mentioned, and who could respond on rather short notice.

We tried contacting someone we know who supports McCain, but didn't hear back from him, nor did we hear back from the campaign when we e-mailed them to ask whether they could recommend someone (though we'd then have to figure out whether that someone matches our criteria). We don't know anyone who fits our criteria who supports Huckabee, and we didn't hear back from the campaign when we e-mailed them to ask whether they could recommend someone. Our judgment was that Duncan Hunter and Alan Keyes were too marginal (nor did we know anyone who fits our criteria who supports them). And we didn't know of anyone who fits our criteria who supports the leading Democratic candidates.

Nonetheless, if we do discover some such people, whether they support McCain, Huckabee, Hunter, Keyes, or the Democratic candidates, we'd be glad to have them post similar essays. If you, for instance, are one such person, please do get in touch with me about this (though please keep in mind the criteria we've set forth). I feel no obligation to give equal time to everyone; our criteria are designedly focused in a way that we think would be helpful to people of a particular political stripe. Nonetheless, I would like to be as inclusive as possible given those criteria.

We also tried to gather the material in time for the Iowa caucus — naturally, not because we think we could affect it, but because we expect that post-caucus media coverage will be dominated by horse-race stories (even more so than the pre-caucus coverage), and we wanted to get things out when the climate of conversation is a little more substantive. Nonetheless, we're sure that post-caucus posts would be helpful for our readers as well.

In any case, that's a pretty long metholodogical introduction. The actual posts are coming forthwith.


Iowa Poll Results.--

The most important of the local Iowa polls (Des Moines Register) shows substantial leads for Obama and Huckabee.

The composites at Real Clear Politics, on the other hand, show nearly dead heats (with very slight leads for Clinton and Romney).

Although caucuses are notoriously hard to predict, it will be interesting to see which polling agencies (or composites) are closer to the final results.


Tuesday, January 1, 2008

Panel on Post-Kelo Eminent Domain Reform:

As part of this year's 10th Annual Federalist Society Faculty Conference in New York City, I have organized a panel on post-Kelo eminent domain reform. The panel will be held on Friday at 9:00-10:45 AM, in the Tansa Room of the Parker Meridien Hotel (118 W. 57th St.). Participants include prominent eminent domain scholars such as James Ely (Vanderbilt), David Dana (Northwestern), Daniel Kelly (a visiting fellow at Yale), and my colleague Steve Eagle. I'm not going to be officially participating myself, but will be present as the panel organizer. The participants' papers, along with contributions by Richard Epstein and Andrew Morriss, will be published in an upcoming symposium in the Supreme Court Economic Review, edited by co-blogger Todd Zywicki and myself.

As I discuss in more detail in this paper, over 40 states, as well as the federal government, have passed eminent domain reform laws since the Supreme Court decided Kelo v. City of New London. There has been more legislative reaction against Kelo than any other Supreme Court decision of at least the last 35 years. So if you're going to be at the AALS conference and have an interest in property law, eminent domain, or the political impact of Supreme Court decisions, try not to miss this panel. I hope to see you there.

Related Posts (on one page):

  1. Panel on Post-Kelo Eminent Domain Reform:
  2. Upcoming Panel on Executive Power:

Bill Kristol, New Columnist for the N.Y. Times:

Kristol has joined David Brooks as a conservative voice on the Times' op-ed pages. They have a lot in common: Jewish New Yorkers with elite educational and high-powered political credentials, and fellow believers in "National Greatness" (i.e., Big Government) (neo)conservatism. I can't help but think that the Times' editors' thought process is something like this: if I absolutely had to talk to a conservative Republican at a cocktail party, who would it be?


Upcoming Panel on Executive Power:

This Thursday, I will be on a panel on executive power at the upcoming Federalist Society 10th Annual Faculty Conference in New York City. The other panelists will be Harvard political theorist Harvey Mansfield, Sandy Levinson of the University of Texas (and the Balkinization blog), and my George Mason colleague Neomi Rao. I anticipate that, on this issue, I will have more points of agreement with Sandy than with Neomi and Professor Mansfield, which is an interesting role reversal. Some of my reservations about unfettered wartime executive power are discussed in this post.

As usual, the Fed Soc conference scheduled to coincide with the annual AALS conference. This panel will be held at 6:30 PM at the Parker Meridien Hotel, 118 W. 57th St., in the Tansa Room.

Related Posts (on one page):

  1. Panel on Post-Kelo Eminent Domain Reform:
  2. Upcoming Panel on Executive Power:

An Important Bicentennial:

On Jan. 1, 1808, it became illegal to import slaves into the United States. Eric Foner reflects about this important, and neglected, anniversary.

Jan. 1, 1808, is worth commemorating not only for what it directly accomplished, but for helping to save the United States from a history even more terrible than the Civil War that eventually rid our country of slavery.

UPDATE: Jack Balkin has more on the end of slave importation here.


Past Perfomance is No Guarantee of Future Results:

Frank Nothaft, chief economist, Freddie Mac, toward the end of the bubble: "I don't foresee any national decline in home price values. Freddie Mac's analysis of single-family houses over the last half century hasn't shown a single year when the national average housing price has gone down." Yahoo News: "The median price of a home sold last month was $210,200. That marked a 3.3 percent drop from a year ago" (and a much greater drop from the June 2005 high of $230K). Not as big a drop, of course, as Freddie Mac's stock price. It wasn't until February '07 that Freddie announced "that it would stop buying those mortgages that have 'a high likelihood of excessive payment shock and possible foreclosure,'" and that "it would limit the use of loans that don't require income verification or other documentation, and will recommend that lenders collect adequate escrow for taxes and insurance payments."

A lot of bad decisions during the bubble were made based on past performance, with the decisionmakers failing to take account of the fact that the bubble was unique--prices had never risen so far, so fast, and there was unprecedented amounts of fraud and abuse in mortgage lending, tied to incredibly relaxed underwriting standards. Failure to use foresight instead of hindsight led all sorts of seemingly shrewd investors to put their money in mortgage-backed securities, anticipating that default rates would not exceed historic levels, in part because prices would continue to rise steadily and allow any borrowers in trouble to refinance or sell at break-even or beyond.


Ron Paul Excluded from New Hampshire candidates Forum:

Given that he's polling in New Hampshire better than Thompson, almost as well as Giuliani, and not far from Huckabee, all of who were invited, this is very strange. Paul supporters may be paranoid, but, as the saying goes, just because you're paranoid doesn't mean that no one's out to get you.


Charlie Wilson:

My friend Don Kates e-mailed me this fascinating Washington Post article about Charlie Wilson -- of Charlie Wilson's War -- and I thought it was worth passing along. My wife and I saw the movie a week ago, and quite liked it; not great, but very good.


Monday, December 31, 2007

Hello Kitty Assault-Like Rifle,

at Thanks to Clayton Cramer for the pointer.


Happy New Year: On behalf of all of us here at the VC, I just wanted to wish all our readers a happy and safe new year. Thanks for reading! See you in 2008.

Law Professor Misery Roundup:

Paul Caron of Taxprofblog has a roundup of the extensive commentary(including two of my own posts) stimulated by his post arguing that law professors tend to be "miserable." He also seems to modify his original claim somewhat:

Much of the commentary argues that law professors have a great job and that most are happy with their jobs. I agree with both points -- my modest question is that, given how great this job is, why are some law professors so unhappy?

The answer, I think, is that some people in virtually any job are unhappy. There are people in all walks of life who are unhappy for reasons having little or nothing to do with their jobs. For example, I'm somewhat unhappy right now because I'm recovering from ankle surgery and can't walk; that has nothing to do with being a lawprof. And even the best jobs are going to have some incumbents who are unhappy because they are temperamentally or otherwise unsuited to them.


Comments Prompted by the Post Immediately Below This One,

but that don't squarely answer the question -- "When a complainant in a criminal case (or some other kind of witness, in a criminal or civil case) is about to become unavailable because he is being recalled to active duty, how does the legal system treat the matter?" -- may go here.

Related Posts (on one page):

  1. Comments Prompted by the Post Immediately Below This One,
  2. Active Military Witnesses/Complainants in Criminal Cases:

Active Military Witnesses/Complainants in Criminal Cases:

BlackFive carries a report of an alleged anti-military hate crime (vandalism). I can't speak to the facts, having seen just this one account; but I am curious about one legal question: When a complainant in a criminal case — or some other kind of witness, in a criminal or civil case — is about to become unavailable because he is being recalled to active duty, how does the legal system treat the matter?

I know that there are some protections offered to active duty military in some situations; I expect these protections must have their limits, for instance because in some situations the Speedy Trial Clause may preclude delay in a criminal case. But I don't know much about the details, and I'd love to hear what our lawyer readers have to say.

So if you know, please post your comments. Also, please keep the comments limited to those that speak about how the legal system treats this question. If you have general thoughts about this incident, or thoughts about how the legal system should treat this question, please post them here. I'd like this thread to just be a repository for answers to this legal question (and perhaps disagreements with those answers), since I take it that some readers will find such a discussion of the actual state of the law to be especially interesting or even useful.

Note, incidentally, that I label this incident an alleged hate crime because, if the facts are as alleged, it is a hate crime, and because that's a clear quick way of describing the matter. I am not urging any specially heightened penalties for such crimes, nor to my knowledge is the complainant.

Related Posts (on one page):

  1. Comments Prompted by the Post Immediately Below This One,
  2. Active Military Witnesses/Complainants in Criminal Cases:

The Interesting Case of Baze v. Rees: On Monday, January 7, the Supreme Court will hear argument in Baze v. Rees, a case on the constitutionality of the current method of lethal injection that 35 states use to carry out the death penalty. The question: Does use of the three-drug cocktail of chemicals that states use to carry out executions amount to cruel and unusual punishment because of the risk that state officials could make an error and inadvertently cause the individual to suffer pain before he dies? The briefs of the parties and the various amici are available here.

  Baze is a very interesting case, and I wanted to offer some thoughts on it. (Full disclosure before I begin: I have discussed the case with counsel for the Respondents, although of course this post only reflects my own views.) I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.

  First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways. The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). But how do you measure what is necessary — necessary compared to what alternative?

  Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?

  Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

  How will these factors play out?

  I gather the case will be trivially easy for the four more conservative Justices. For the four on the right, the notion that the Eighth Amendment's prohibition on cruel and unusual punishment could bar a painless procedure on the ground that there is some chance things could go wrong and inadvertently cause pain is likely to seem rather silly. And you don't need to be an originalist to get there: In Estelle v. Gamble, 429 U.S. 97 (1976), the Court held that deliberate indifference to medical needs could violate the Eighth Amendment but that the accidental infliction of pain — pain caused by "[i]nadvertent failure to provide adequate medical care" — did not. Justice Marshall's opinion in Estelle favorably discussed Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947), a method of execution case decided on Due Process grounds, and suggested that it was "similar" to the Eighth Amendment issues raised in medical care cases. If you apply the same standard to methods of execution (which seems sensible, given Estelle's favorable discussion of Resweber and suggestion that it was "similar"), this issue should be easy.

  For the other five Justices, though, I think this is likely to be a more difficult case. My sense is that these five Justices will want to push the states to adopt better procedures. But it's really quite hard to know how to do that; the Justices are not doctors, and they have no particular knowledge of how to regulate what amount to medical procedures. Plus, my sense is that there is very little experimental knowledge among experts as to which means of execution are actually the most reliable in ending life without pain. (Medical associations bar doctors from participating in executions.) And it's not like the Supreme Court can order the creation of a commission to study the reliability of different drug cocktails. Given that, a Justice wanting to push states to improve their methods of execution won't have a lot of obvious specific recommendations to make.

  The brief for the defendant (the one making the constitutional claim) tries to deal with these issues by making two moves. The first move is to aggregate risks: the brief argues that when determining the risk of pain, the Court should aggregate all of the executions that use a particular protocol: the question shouldn't be whether a particular execution is likely to involve inadvertent pain, but rather the chances that someone will suffer terrible pain if the protocol is allowed given the hundreds of people who may be executed using that protocol. (Brief at 42). The aggregation move magnifies the risk; it's not just one person's isolated risk that matters, but rather the cumulative risk of everyone in the future or in the past subject to that protocol.

  The second move is to suggest that the Eighth Amendment requires a factual hearing to hash out all the probabilities. The brief argues that an execution protocol is unconstitutional if, "taken as a whole" — that is, looking at all of the executions that use this particular protocol — [it] presents a significant risk of causing [someone] severe pain that could be avoided through the use of a reasonably available alternative or safeguard." (Brief at 38). The defendant's brief stresses that this is an evolving standard: the idea, as I understand it, is that the constitutionality of a particular protocol requires a factual hearing on (a) the risks and quantity of pain inherent that protocol, (b) the number of executions that will share that protocol, and (c) the latest state of technology and science on reasonably available alternatives and safeguards. It's sort of Learned Hand's Carroll Towing formula as an Eighth Amendment standard.

  I highly doubt the Supreme Court will adopt this test, as it seems too obviously to be a recipe for endless litigation. That's certainly understandable; if you're counsel for the defendant, a day of litigation means a day without an execution. But it's not a very workable test, for lots of reasons; most obviously, it hinges on how courts characterize protocols and whether they group them together or see each slightly different practices as defining distinct protocols. And the idea of measuring risk by aggregating risks of all the other people who have or might be executed under a particular protocol strikes me as rather strange. Why is it relevant what other states do? And how can you sum up all the risks given that the frequency of a protocol being used presumably must be based on a prediction about future choices of the many different states — and the condemned, in states that offer individuals the choice of method of execution — in future decades?

  Anyway, that's my sense of the case. What's going to happen in the case is anyone's guess. If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices. That won't really answer the constitutional question, but it will kick the ball down the road for a few years.

  Finally, I realize the death penalty is a controversial topic, but please keep comments civil and presume good faith in your fellow discussants (and in your blogger, for that matter).

Sunday, December 30, 2007

Sunday Song Lyric - 2007 Index:

It's been quite a varied year for the SSL. We didn't post a lyric every week, but we seek to have done a good job of covering the waterfront this year. An index for all 2007's entries follow.

Dec. 23 - The Pogues, Fairytale of New York
Dec. 16 - N.W.A., F**k the Police
Dec. 2 - Portishead, Sour Times
Nov. 11 - Pink Floyd, Wish You Were Here
Oct. 28 - Fall Out Boy, I'm Like A Lawyer With The Way I'm Always Trying To Get You Off
Oct. 7 - John Mellencamp, Jena
Sept. 30 - Nickelback, Rockstar
Sept. 23 - Herman Hupfeld, As Time Goes By
Sept. 16 - Kate Bush, This Woman's Work
Sept. 9 - Holt Marvell, These Foolish Things (Remind Me of You)
Sept. 2 - Nine Inch Nails, Hurt
Aug. 26 - Duke Ellington, Solitude
Aug. 19 - Alarm, Eye of the Hurricane
Aug. 12 - Kurt Weill & Bertolt Brecht, Solomon Song
Aug. 5 - Marcy Playground, The Vampires of New York
July 29 - Richard Adler & Jerry Ross, Rags to Riches
July 22 - Mary Chapin Carpenter, The Long Way Home
July 15 - The Cure, Jumping Someone Else's Train
July 8 - Arctic Monkeys, Teddy Picker
June 24 - White Stripes, Icky Thump
June 17 - Ricky Skaggs, Father Knows Best
June 10 - Linkin Park, What I've Done
June 3 - Genesis, Illegal Alien
May 27 - [Memorial Day Lyrics]
May 20 - Sam Cooke, A Change Is Gonna Come
May 13 - Five for Fighting (John Ondrasik), Freedom Never Cries
May 6 - Elvis Costello, Radio, Radio
April 29 - Sublime, April 29, 1992 (Miami) April 15 - Buddy De Sylva/Lew Brown, Life Is Just a Bowl of Cherries
April 8 - Arcade Fire, Keep the Car Running
March 25 - Bloc Party, Uniform
March 18 - Dropkick Murphys, The Dirty Glass
March 11 - Joss Whedon, Once More With Feeling
March 4 - Melissa Etheridge, I Need to Wake Up
February 25 - Randy Newman, Our Town
February 11 - Elton John/Bernie Taupin, Philadelphia Freedom
February 4 - The Clash (Paul Simonon), The Guns of Brixton
January 28 - Leonard Cohen, Hallelujah January 21 - Jay-Z, 30 Something/Minority Report/Kingdom Come
January 7 - Evanescence, Lithium

As always, I appreciate recommendations for future posts, and I appreciate all of the feedback I've received on the SSL to date.


A True Clash of Fundamental Values - The Debate Over Radical Life Extension Technology:

I have often argued that many political disagreements that seem like differences in fundamental values are really disagreements over the right means to achieve common ends. That is certainly true of many of the issues that divide libertarians from liberals on the one hand and social conservatives on the other. However, there are some exceptions to this generalization. Cato Unbound's recent debate over the desirability of radical life extension technology (which could potentially extend human lifespans for decades or centuries) highlights an especially stark divergence of this type - one that definitely does separate libertarians from at least some social conservatives in a fundamental way. To me, and to most libertarians, it seems pretty obvious that life extension is an extraordinarily good thing in and of itself. Perhaps some negative second-order effects of this technology could outweigh its vast benefits. But those negative effects would have to be truly enormous to outweigh the massive benefits of decades or centuries of extra lifespan. This is especially true, given the fact that life extension research seeks to extend not merely lifespan, but "healthspan" - the length of time during which we will remain reasonably vigorous and healthy (see Aubrey de Grey's lead essay in the Cato debate).

In his contribution to the Cato debate, conservative bioethicist Daniel Callahan clearly takes a different view:

I had a child who died a few months after birth, and I considered that tragic as did everyone else, but when my mother died at 86 of cancer, no one considered it a tragedy or even a great evil. Those who knew her said at her funeral that “we loved your mother and will miss her, but she had a good and full life.” I have never heard anyone say it is a tragedy that Socrates, Shakespeare, George Washington, and Albert Einstein died and are no longer with us. And while I hope in my more self-regarding moments that my friends and families will wail and gnash their teeth at my funeral, I doubt at my age they will do so; and I can, so to speak, live with that.

I couldn't possibly disagree more. To me it seems extremely obvious that it is a tragedy that Socrates, Shakespeare and the rest are no longer with us. Apart from the benefits of longer life to these individuals themselves, the rest of us would gain from the additional great works they might have produced in the extra time. Who knows what masterpieces Shakespeare might have given us had he lived to be 552 rather than 52? As far as personal anecdotes go, my grandfather died a few years ago at the age of 95. Despite his advanced age, his death definitely was "a great evil" and his relatives and friends still miss him. Perhaps death was a lesser evil compared to going on living in the near-vegetative condition he had fallen into near the end. But if de Grey and other experts are correct, the result of radical life-extension technology will not be additional years of a vegetative existence but decades or centuries of added healthspan. It's hard to say whether my family's reaction to death is more typical than Callahan's (though I tend to think it is). But the difference between them is striking.

There are some pragmatic consequentialist arguments against anti-aging technology that don't implicate fundamental values. For example, critics worry that without relatively short lifespans, there will be no generational succession in powerful leadership positions, and therefore important institutions might stagnate under leaders who have become moribund. I think that most such arguments are weak. The generational succession problem is easily addressed by instituting term limits for leadership positions - policies which already exist for many key offices in both the public and private sector, including the presidency. But at least these concerns are based on values that I can understand and sympathize with.

By contrast, Callahan's argument really does represent a deep moral chasm between us. If taken seriously, it implies that little or no good was achieved by extending life expectancy from the "natural" average of 35 or 40 that prevailed before the Industrial Revolution to today's 75-80. Indeed, Callahan himself at one point suggests that life expectancy was "long enough" (quoting the philosopher Seneca) back in the days of the Roman Empire, when "the average life expectancy was 30 and one was considered old at 40." It's hard to tell whether he really means to say that a life expectancy of 30 to 40 is acceptable. But if he does, it further underscores the difference in moral values between his brand of social conservatism and my own views.


Some Evidence on Law Professors' Relative Job Satisfaction:

Those who read and debated my recent post on the question of whether law professors are "miserable" may be interested to see some actual evidence of relative job satisfaction among law professors as compared to other law school graduates. In 2006, Yale Law School surveyed members of the Yale class of 2001 on a variety of career-related issues including job satisfaction. 67% of graduates working in academia said that they were "very satisfied" with their jobs, compared to 51% of those working in "public service," 30% of those employed by businesses, and 30% of those working for private law firms. At the other end of the scale, there were no academics who were only "somewhat" or not at all satisfied with their jobs, compared to 19% of those working in public service, 16% of those employed in business, and 34% of those in private law firms.

It is striking that job satisfaction among academics is high not only relative to those in private practice, but also relative to graduates employed in "public service," which is often viewed as a career path chosen in large part to maximize personal happiness rather than income.

There are, of course, some limitations to this data. First, only Yale graduates are surveyed. The average Yale graduate in academia may have a somewhat better job than the average academic in general. On the other hand, the average Yale graduate in private practice or public service also probably has a better job than the average graduate of most other law schools. A more serious problem is that there are only 12 total academics in the sample. This is just enough to be statistically significant, but is a small group nonetheless. In addition, the survey question measures only the respondents' satisfaction with their jobs. It doesn't measure their overall level of happiness. Some academics might be happy with their jobs, but miserable more generally. However, the former is the better measure of the marginal effect of the job itself on personal happiness, which is after all the point at issue.

Finally, I should emphasize that the data does not prove that all, or even most law school graduates would be happier in academia than in other kinds of jobs. Obviously, academics are a self-selected group that draws disproportionately from those who would enjoy the job most. However, the survey does suggest that those law school graduates who choose to become academics are, on average, happier with their jobs than those who choose other careers.

UPDATE: Co-conspirator Orin Kerr points out that Yale has compiled the combined numbers for the 1996 to 2000 graduating classes (each also surveyed five years after graduation) here. As Orin notes, the numbers are similar to those for the Class of 2001 discussed in the post. For the 1996-2000 group, 75% of those working in academia, 60% of those in public service, 49% of graduates employed in "business," and 24% of those working for private law firms reported that they were "very satisfied" with their jobs. Similarly, 5% of the academics, 8% of those in public service, 13% of the business employees, and 37% of the law firm lawyers reported that they were only "somewhat satisfied" or "not satisfied." The 1996-2000 data represent a much larger sample than that for the Class of 2001 alone. In combination, the data for all six classes make a strong case that legal academics have higher average levels of job satisfaction than law school graduates working in other fields.


No meaningless games for NFL playoff teams.--

A few years ago, I noticed that one of the prevalent beliefs in the NFL is a myth: it is widely thought that it doesn’t matter whether an NFL team bound for the playoffs wins its last regular-season game. Accordingly, many playoff teams rest some of their starters for their final regular season game, as the Chicago Bears did last year in their season-ending loss to Green Bay, a precursor of their loss in the 2007 Super Bowl. Like NFL coaches, many commentators also do not seem to understand that losing the last regular-season game is an excellent indicator of not making or not winning the Super Bowl.

Since the 1995-96 season, only one of the 12 Super Bowl winners (the 1999-2000 St. Louis Rams) lost their last regular-season game. Further, one would have to go back to the 1980s before finding a Super Bowl winner who lost its last regular season game by more than 7 points.

Why is this so? Of course, some strong teams need to win their last game to maximize home-field advantage in the playoffs, but other strong teams may simply be good enough to win even when they are not trying their hardest.

Whatever the reasons, winning your last regular-season game is an important indicator of your ability to win the ultimate prize: the Super Bowl.

Note that this analysis does not necessarily mean that resting your starters in the last game is the wrong strategy: perhaps you had almost no chance to win the Super Bowl anyway so resting them made no difference, or perhaps you are good enough to win the last game without your starters, in which case resting them might be the right move. But whatever the pre-game probabilities might be, after the game your chances of winning the Super Bowl are slim if you lost the final regular-season game (and especially if you lost by more than 7 points).