Saturday, May 10, 2008

CNBC stock contest: Is winning a weekly prize worse than losing?

If it’s late spring, it’s time once again for the CNBC stock trading challenge. First prize is $500,000 and the runner-up wins $250,000. Even after taxes, that's a lot of money.

But the non-cash weekly prizes carry such a hefty income tax liability that I don’t think I’d want to win most of them.

If you are in a combined 37% federal and state income tax marginal tax bracket, in week 8 you could win 2 nights in a Bentley (with chauffeur) and pay only $3,700 in income taxes on a prize that retails for $10,000. Because I could rent an ordinary luxury car without a chaffeur for a couple nights for a few hundred dollars, something I'm not inclined to do in any event, I can't imagine why I'd want to rent a Bentley for several thousand dollars, the amount of taxes I would have to pay if I won a "free" prize.

Or you could win week 4’s prize of a private jet to Jamaica for a 3-night vacation for only $12,000 in taxes. Because one can be a guest in many of the world’s best hotels for under a $1,000 a night, $12,000 for 3 nights seems like a lot to spend for a “free” vacation –- one that comes complete with a 1099 showing income of $32,500.

If your tax bracket is a lot lower, then the tax cost would not be so high, but if you live in NYC or other high-tax locales, you would be paying a much higher amount than would be owed in the 37% bracket I used for my hypotheticals.

What do families do when they win a new house on Extreme Makeover: Home Edition? The producers of that show must pay a mint to build a house in a week; I wonder how generously those houses are valued on 1099s. [UPDATE (from "Another Roger" in the comments below): Extreme Makeover recommends a tax dodge.]


Hillary Clinton and the Pro-gun Vote

In a Thursday article for Town Hall, titled "Gun Owners for Hillary?", I examine Senator Clinton's success in winning gun-owner votes in the recent Democratic primaries. Susan Faludi's op-ed in the New York Times examines some of the changes in Mrs. Clinton's style which have made her more attractive to white males; my guess is that these changes are also particularly appealing to gun owners, who tend to place a high value on self-reliance and grit.


Brigadier General Hartmann Removed from Role in Military Tribunals:

As covered in prior posts, Col. Morris Davis, the former chief prosecutor at Guantanamo, resigned his post alleging, among other things, that military officers, including Brigadier General Thomas Hartmann, were exercising undue influence over the conduct of the trials of detainees and compromising the impartiality and fairness of the military commissions. Now it appears that at least one military judge concurs with Col. Davis' assessment. As the NYT reports:

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down. . . .

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly. . . .

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

Related Posts (on one page):

  1. Brigadier General Hartmann Removed from Role in Military Tribunals:
  2. Col. Davis for the Defense:
  3. A Prosecutor for the Defense:

Draft Insurance for College Hoopsters:

My colleagues Tom Hazlett and Josh Wright have a proposal for responding to the incentives for college basketball players to leave college early and to to turn pro--draft insurance for college underclassmen paid for by the university. They admit that for athletes from financially poor backgrounds this won't provide much of an incentive to stay, but for others it might. The premise is that there are some athletes who would like to stay, but simply can't afford it. For many top basketball players (such as Kevin Love), the marginal benefit of staying is relatively small in the sense that he may work up a few slots in the draft order but the marginal cost is quite high in the sense that a poor season could reduce his draft stock substantially. Right now the NCAA allows players to buy insurance for major career-ending injuries but not for minor injuries or performance declines that reduce draft position. Current rules also prohibit the insitution from paying for the insurance.

Here's Tom and Josh's wrap up:

Second, we posit that there are two reasons that freshman stars are so likely to leave college early. One is that NBA salaries are high, and that each year a player waits to cash in is one very rich year they lose. Until the NCAA cartel is smashed, that problem is beyond our solution. But the second motive is to mitigate risk. One clumsy leap and a $7.6 million guaranteed contract—the expected price tag for this year's 12th NBA pick—goes poof! And, as financial economists will tell you, that first $7.6 million is probably more important to you than the next.

So the answer, given that universities cannot pay athletes market wages, is to at least insure them. Were underclassmen to be appraised, via draft rankings, and then offered compensation in the event—post-graduation—they slipped by some increment, they could hedge this very considerable exposure. The NCAA allows players to insure, but the player pays even though it is largely the university (and its fans) that benefits. Moreover, policies can only insure against career-ending injuries, leaving the more common outcomes—less serious injuries and performance-related changes in draft status—terrifying prospects.

The schools should extend broader coverage. The contracts we propose do not fully compensate college athletes for their valuable service, and would thus retain only some of the talent now jumping early to the pros. Yet, the approach would preserve the NCAA's "amateur" wink, while allowing student-athletes to play college ball until their 21st birthday without risking the family jewels. A slam dunk, really.


Friday, May 9, 2008

More on Obama's View of the Constitution: Via Bench Memos, I recently came across what appears to be a transcript of Senator Obama's address to the Planned Parenthood Action Fund on July 17, 2007, in which he spoke about the law and the Constitution. An excerpt:
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.

That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.” I said, well look, that’s absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is — what is in the justice’s heart.
Sounds like a case for Kirby Kyle.

Arrested for a Turn Signal Violation: From Melissa, Texas, via Don't Tase Me Bro,
  Mark Robinson was driving through downtown Melissa last week when he was pulled over for failing the use his turn signal.
  But instead of getting a ticket, the officer took the 24-year-old to jail.
  He was booked, strip searched, and sat for 3 hours with criminals. “People talking about using drugs and shooting heroin. They asked me what I was in there for and I said a turn signal violation,” said Robinson.
  There aren't any warrants out for Robinson. In fact he says he's never been in jail. But he does admit to challenging the officer's questions during the stop.

Which Does America Need More, a gated community of Ron Paul supporters or the return of the Gong Show? (Hat tip for the first link: Sua Sponte)

Barack Obama on the Courts as a "Refuge for Justice": In an interview yesterday with CNN's Wolf Blitzer, Barack Obama spoke again on what kind of judge he would want appointed to the federal courts (he discusses the topic starting around the 9 minute mark). An excerpt:
What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings — and, in those circumstances, what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly. The courts become a refuge for justice. That's been its historic role. That was its role in Brown v. Board of Education.
  Unfortunately, Blitzer did not ask Obama an open-ended question of which Justices past or present he most admires, to get a better idea of what Obama has in mind. Instead, Blitzer asked Obama which Justices Obama likes among the Justices on the bench "right now." Obama responds that he thinks Justices Breyer and Ginsburg are "very sensible," and that even Justice Souter - who Obama notes is a Republican-nominated Justice --is "a sensible judge."

  UPDATE: In the comment thread, "Terrivus" offers an interesting perspective that (as far as I know) I haven't seen expressed elsewhere. I'm not sure if I agree with it, and parts of it seem clearly overstated. But it seems interesting enough to bring to the main text for discussion:
What's interesting is that Obama's very campaign is upending traditional notions of who has "access" to political power, and yet his approach to judicial nominations is premised on those traditional notions. Using the courts to protect "discrete and insular minorities" may have made much more sense in a time when it realistically wasn't as possible — from a structural point of view — for such groups to have adequate representation in the political process.

But advances in media and technology — as illustrated by Obama's own campaign, which was initiated within and is largely propelled by the netroots community — have largely removed these barriers today. Think of any group that would count as a "discrete and insular minority": blacks, Hispanics, gays, black Hispanic gays — anything. In the 1940s and 1950s, it was much easier for the political process to structurally cut those groups off. Today? Every one of these groups has the ability to come together, raise money, raise awareness, and attract followers and sympathizers in the public and among representatives. There is simply no "discrete and insular minority" that doesn't have the ability to access the political process these days in the same manner as all groups.

Now, does that mean that each of these minorities *gets their way* on every issue? No — they might often get outvoted. But getting outvoted after a thorough airing of issues is much different than not getting an airing at all. And after a couple more years of awareness and making arguments, those minorities may eventually change the public view enough to gain enough votes to put their favored policies in place. And that's democracy.

So I just find it odd that Obama's approach to judges rests on notions of the political process that his own campaign has proven are antiquated.

For the "This Really Burns Me Up" File:

The State of Oregon, bless its heart, has begun sending out cease-and-desist letters to websites like Justia and Public.Resource.Org, demanding that the sites take down copies of the Oregon Revised Statutes posted there on the grounds that the posting infringes the State's copyright in the statutes.

Hard to believe, but apparently true. [See Cory Doctorow's posting on Boing Boing, and the story from TechDirt, along with accompanying documents.

The copyright claim is (like a lot of copyright claims these days) probably about 98% horse manure. They're not asserting copyright in the text of the laws themselves, but in the "arrangement and subject matter compilation," the numbering of statutory sections, and the various "tables, indices, and annotations" contained in the documents. Lots of that stuff is simply not copyrightable -- and even as to the stuff in which there might be copyright protection, what makes the State of Oregon so sure that it, and not the various individuals who authored particular sections, owns the copyright to those contributions?

But that's not what burns me up, of course. What burns me up is that the State of Oregon would choose to assert its rather fanciful copyright claim for the purpose of making public access to the authoritative version of its laws more, rather than less, difficult. It is completely outrageous that in 2008 we do not have a complete and authoritative compendium of all of the laws of the 50 States, and the federal government, available at no cost on the net. Oh, did I mention that Thomson-West Publishing publishes and sells the Oregon Revised Statutes (and makes it available, for a fee, over its Westlaw service)? My colleague Peter Martin, of the Cornell Legal Information Institute, has been working on this problem for years and years, and has made some, but far too little, headway -- though I hope he keeps fighting the good fight on this front.

[Thanks to George Byrd for the pointer to this story]


Religious Accommodations and Eagle Protection Law:

Judge Michael McConnell, one of the nation's leading scholars of church-state and religious freedom law, has just written a characteristically thoughtful opinion on the subject. Much worth reading if you're interested in American religious accommodation law and how it plays out in practice. Thanks to How Appealing for the pointer.


Thursday, May 8, 2008

Mike Nifong Bankruptcy:

Speaking of the the Duke Lacrosse case, this is a bit of old news, but back in January Mike Nifong had to file bankruptcy to deal with the civil lawsuits that have been brought against him by the exonerated Duke lacrosse players. He lists assets of $243,000 and liabilities of $180 million (presumably contingent claims).

On the other hand, it is far from clear that bankruptcy will help Nifong very much in the long run. Section 523(a)(6) of the Code makes nondischargeable debts incurred for "willful and malicious injury" to others. This traditionally has been defined as something like an intentional tort, as in Kawaauhau v. Geiger. I'm not familiar with the details of the players' complaint against him (please flesh this out in the comments if any of you are familiar with it_ but I assume that it includes counts for claims such as defamation and libel and other intentional torts, so I would think 523(a)(6) has a good chance of applying. In the meantime, he does get some benefit from the automatic stay, however.

According to this website, Nifong lists about $5000 per month in "pension and retirement" income (which it appears that he is claiming as exempt from the tort claims of the lacrosse players), "and describes himself, charitably, as retired."

His full bankruptcy schedules are here.


Cory Maye Documentary: Reason.TV has just posted a documentary about the Cory Maye case: The Mississippi Drug War Blues: The Case of Cory Maye. Thanks to Radley Balko for the link (as well as all the other great work he has done with this case).

Vandalism of Pro-Life Display by University of Wisconsin - Stevens Point Student Government Official:

The Wausau Daily Herald has details; YouTube has video, which seems consistent with the Wausau article. The display was an array of crosses aimed at symbolizing the deaths of aborted fetuses.

For confirmation that the vandal (Roderick King) was a Student Senator, see here. The vandal's rationale:

In 1973 it was made a Constitutional right for a woman to have an abortion. It's not your responsibility. Since it's a right, you don't have the right to challenge it.... Do not put this [display] in front of all of us ... it is not your right.

I'd like to hear what actions the university or the student senate will take against Senator King for his vandalism.

Note, incidentally, that it appears that the use of the university's property for the exhibit had indeed been authorized by the university. (Even if the parklike area on university property was a traditional public forum in which speech had to be allowed, or a designated public forum that the university opened up for speech, it's likely that the university could bar installations planted in the ground — but it appears that the university did not impose any such content-neutral limitation.) Thanks to my friend Prof. Rick Garnett (PrawsBlawg, Mirror of Justice) for the pointer.

UPDATE: UWSP's response:

The University of Wisconsin-Stevens Point has received several communications regarding the May 1, 2008, display by the student organization, Pointers for Life, and the disruption of that display by opposing students.

The university values free expression and the open exchange of ideas. Pointers for Life is a recognized student organization that followed university procedure in staging its event.

The student who disrupted the display not only exhibited inappropriate behavior, but demonstrated intolerance that is unacceptable on the UWSP campus.

University procedures are being followed. In accordance with the Family Educational Rights and Privacy Act, which protects our students from disclosure of their educational records, results of those procedures will not be made public.

I can't speak to the FERPA question, but generally I think UWSP's statement is exactly correct. Many thanks to Thomas Muth for the pointer.


Process Service by E-Mail:

A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last month, allows this in certain circumstances, and canvasses past opinions on the subject. It then analyzes things this way:

[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.

The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.

Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.


The Bill of Rights Abroad:

The Federal Circuit just held that the Takings Clause generally doesn't apply to takings of foreign property owned by foreign citizens who have no connection to the U.S. In the process, the court of appeals also canvassed the precedents on the broader question, which can also involve the Fourth Amendment, the criminal procedure provisions, and other Bill of Rights clauses.

Much worth reading, and should be pretty readable even to nonlawyers. Thanks to How Appealing for the pointer.


Scholarship and Blogging:

Later this morning I'll be appearing on a panel on "Scholarship and Blogging: The View from the Academy" at the CWRU Conference "Collaboration Technology and Engaging the Campus 2008." I'll be talking about how blogging complements, advances, and at times gets in the way of my scholarship. The sessions are being recorded, and streaming video should be available here.

UPDATE: The panel's starting - so check out the video feed if you like.

FURTHER UPDATE: Here is Inside Higher Ed's coverage.


What About Those Nuns?

The WSJ's John Fund suggests there's a little more to the story of the "disenfranchised" nuns who could not vote on Tuesday because they lacked adequate IDs.

the story turns out to be much more complicated. The nuns had all been told earlier that they would need an up-to-date ID to vote. But none of them had asked to be taken to get an ID, and some flatly said they did not want to. Then on Election Day the nuns all showed up to vote.

They could have been given provisional ballots, which would have counted if they had shown up at a county clerk's office within 10 days to show an ID or sign an affidavit testifying to their identity.

The nuns would have none of it. According to the Associated Press, they told Sister McGuire that they were not interested in getting an official state ID. She decided it was futile to offer them a provisional ballot. She says it would have been impossible for them to get them to a motor vehicle branch--the nearest one is two miles away--within the allotted 10 days after the election.

But if their mobility is restricted, the Indiana law provides other ways in which they could have voted. Nursing homes can get a waiver of the ID requirement for residents to vote. And any Indianan over 65 is automatically eligible to cast an absentee ballot.

Related Posts (on one page):

  1. What About Those Nuns?
  2. Effects of Voter ID in Indiana Primary:

Does Barack Obama Have Enough Administrative Experience to be a Law School Dean?--

I was thinking about the story (whether true or not) that George Bush once suggested to a fellow baseball owner that he might want to be the commissioner of Major League Baseball. The felllow owner responded that Bush wasn't bright enough.

Then I thought about jobs that Barack Obama and John McCain might--or might not--be qualified for, including law school dean. McCain probably doesn't have the intellectual style of a typical dean — and he lacks a law degree and experience teaching in a law school.

In most respects, Obama would be an excellent choice for dean of a top law school, but I wonder whether (before this year) he had enough administrative experience to get the job. Running a small Senate staff would probably not be enough experience. And we know very little about Obama's work for Project Vote and Chicago's Annenberg Challenge educational programs.

Thus, I would say that, until the last year, Obama's administrative resume may have been too thin to be an obvious first choice to be a dean at a top law school. Ultimately, however, I think that Obama's very successful presidential campaign suggests that he has more than enough administrative skill and experience to run a faculty of 75 people, a staff of 100-200, and a law school of a thousand students.


Can Dann Be Impeached or Removed?

Scandal plagued Ohio Attorney General Marc Dann is holding firm and refusing to resign. Indeed, he's hired a political opposition-research firm to assist in communications. Still, every prominent political figure from Dann's own political party, including the Governor, has said Dann must resign or face impeachment.

If Dann had any honor, he'd resign. That much is plain. But does that mean he should be impeached? Has he even engaged in impeachable offenses? The Ohio Constitition provides that any state officer may be impeached for any misdemeanor in office." The key question, it seems to me, is what qualifies as a "misdemeanor."

Under one reading, this would require that an officer actually commit a crime in order to be eligibe for impeachment. After all, "misdemeanor" typically connotes a particular category of crime. I find this reading implausible, however, as it would suggest that a state officer can be impeached for committing lessor crimes ("misdemeanors") but not greater crimes ("felonies"). I suppose one could argue that in most cases, the commission of a felony will include the commission of a misdemeanor as a lesser-included offense, but I still find this argument unpersuasive.

I find more plausible a reading of the Constitution that uses "misdemeanor" in the traditional sense of meaning a "misdeed" or "an instance of misbehavior." (See various definitions here.) Under this definition, Dann has clearly committed impeachable offenses, even if one ignores his affair, including misleading investigators, misappropriation and misuse of state resources, accommodating and enabling misdeeds by his subordinates, and contributing to the creation of a hostile work environment within the state AG's office, among other things. And I am willing to bet more will be revealed by pending investigations and litigation.

For more on whether Dann should be impeached, see this debate between two Columbus Dispatch writers. (Yes, No).

Interestingly enough, under Ohio law, there is another way for Dann to be removed from office. The Ohio Constitution provides:

Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution.
The relevant removal provisions of the Ohio Code provide for the initiation of judicially administered removal proceedings upon the filing of a complaint signed by a number of voters equal or grater to fifteen percent of the votes cast in the last gubernatorial election. Importantly, the standard for removal incorporates a fairly broad definition of official misconduct that would justify impeachment. Section 3.07 of the Ohio Code provides:
Any person holding office in this state, or in any municipal corporation, county, or subdivision thereof, coming within the official classification in Section 38 of Article II, Ohio Constitution, who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any official duty imposed upon him by law, or is guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance is guilty of misconduct in office. Upon complaint and hearing in the manner provided for in sections 3.07 to 3.10, inclusive, of the Revised Code, such person shall have judgment of forfeiture of said office with all its emoluments entered thereon against him, creating thereby in said office a vacancy to be filled as prescribed by law. The proceedings provided for in such sections are in addition to impeachment and other methods of removal authorized by law, and such sections do not divest the governor or any other authority of the jurisdiction given in removal proceedings.
Whether or not one believes Dann is guilty of a "misdemeanor" justifying impeachment under the Ohio Constitution, it seems to me that he is clearly guilty of "misconduct" as defined by the Ohio Code, and vulnerable to a removal action. Initiating such an action would be costly - requiring the collection of over 600,000 signatures -- and placing Dann's fate in the hands of the judiciary could unduly politicize that branch. Bipartisan impeachment proceedings would be preferable to a citizen-initiated removal action, and a resignation would be best of all.


KC Johnson on New Duke Hoax Scholarship.--

KC Johnson has a long post taking apart a recent scholarly article on the Duke Rape Hoax by three faculty members — Wahneema Lubiano, Michael Hardt, and Robyn Weigman -- the first two of whom were involved in stirring up hatred against the Lacrosse players.

Apparently, some of the Social Text article is unintentionally funny:

Lubiano, Weigman, and Hardt had little difficulty in identifying the true victims of 2006-2007 events in Durham—themselves, and their fellow members of the Group of 88.

The victimizers? Not Mike Nifong, or Sgt. Gottlieb, or Duke administrators who failed to enforce the Faculty Handbook. Not the Duke professors who rushed to judgment or abused their classroom authority. No, the victimizers, according to the Lubiano Trio, were “the blogs.”

According to the Lubiano Trio, “the most extreme marginalization was reserved for the faculty whose professional expertise made them most competent to engage the discourses on race and gender unleashed by the inaugurating incident — scholars of African American and women’s studies. Instead, administrators, like the bloggers themselves, operated under the assumption that everyone was an expert on matters of race and gender, while actually existing academic expertise was recast as either bias or a commitment to preconceived notions about the legal case. Some faculty thus found themselves in the unenviable position of being the targets of public discourse (and disparaged for their expertise on race and gender) without being legitimate participants in it.”

If the Group’s expertise made its members “most competent to engage the discourses on race and gender unleashed by the inaugurating incident,” there was nothing, to my knowledge, to prevent them from doing so. Instead, of course, Group members by and large pursued an opposite approach. They rushed to judgment in issuing their statement when most people presumed the lacrosse players guilty—and then, when the case started to collapse, they either refused to explain their earlier position or offered almost comical rationalizations for their spring 2006 statements and actions.

The Lubiano Trio’s new narrative requires some . . . creative . . . re-interpretations of the past. To take some examples:

The Group of 88’s Ad

Here’s how the Lubiano Trio’s article described the Group of 88’s ad: It “sought to grapple with issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

Yet here’s how Lubiano herself described the ad in early April 2006, when she invited people to sign: “African & African-American Studies is placing an ad in The Chronicle about the lacrosse team incident [emphasis added] . . . We will not be listing the names on the ad itself (only the supporting departments and program units).”

The Lubiano Trio’s article makes no mention of this inviting e-mail, nor the ad’s unequivocal assertion that something “happened” to Crystal Mangum, nor the ad’s thanking—“for not waiting and for making yourselves heard”—the protesters who had presumed guilt, nor the ad’s claim that five departments officially endorsed its contents even though none of the departments actually voted on the matter. It remains unclear how any of the above items relate to “issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

The Blogs

Intoned the Lubiano Trio, “The latter framing [focusing on the accuracy of the allegations] was embodied most prominently by Friends of Duke University, an organization formed to raise money for the defendants.”

What are they talking about? FODU, a grassroots organization of Duke alumni and supporters, was created in summer 2006 not to raise money for the defendants but to urge the Duke administration to publicly demand that Durham authorities accord to Duke students the same due process rights granted to all other Durham residents.

The Lubiano Trio appears to have confused FODU (which wasn’t a fundraising organization) with the Association for Truth and Fairness, the organization that did raise money to help defray the defendants’ legal bills.

The only problem: the ATF wasn’t a blog—which makes its existence irrelevant to the Lubiano Trio’s commentary on the blogosphere.

The Media’s Role

The Lubiano Trio informed their readers that “the television newsweekly 60 Minutes aired five segments on the topic, and stories appeared in the New Yorker, Newsweek, Rolling Stone, and Sports Illustrated, on the editorial pages of every major newspaper in the country, and on local and national evening newscasts.”

Actually, 60 Minutes ran three, not five, segments on the topic. And the New York Times, which most people (especially, I suspect, members of the Group of 88) would consider a “major newspaper in the country,” did not publish an editorial on the case.

The Defense Attorneys and the Group of 88

After scouring the defense attorneys’ change-of-venue motion, the Lubiano Trio concluded, “Since its publication, the ad has figured prominently in both campus and media debate and was cited as evidence in a defense motion for change of venue, on the assertion that the accused players could not receive a fair trial in a town in which prominent community members, including faculty, had failed publicly to defend their innocence.”

In fact, the December 2006 defense motion contained no such assertion. (The Lubiano Trio’s article contains a footnote citing the defense motion, but the authors, perhaps unsurprisingly, elected not to specify a page number in which this assertion allegedly was made.) To my knowledge, no defense lawyer, at any stage of the case, stated that “prominent community members, including faculty, had failed publicly to defend [the players’] innocence.” Defense attorneys spoke about the presumption of innocence—a far different thing than an outright declaration of innocence. And many critics of the Group of 88, including me, spoke of the need for academics, of all groups in American society, to speak up for due process—which is also a far different thing than an outright declaration of innocence.

That the Lubiano Trio equated calls for professors to defend due process and the presumption of innocence with demands that academics actually affirm the players’ innocence gives a sense of how skewed were Group members’ conception of the justice system. . . .

Blog Criticism of the Group

Blogs, according to the Lubiano Trio, used “powerful tactics of harassment” against members of the Group. “Typically we [Group members] should . . . work as maids for the players’ families [or] return to the slave quarters.” Group members “have also been found guilty of numerous crimes, including treason, sedition, and tax evasion(!).”

Although the Lubiano Trio’s article does contain footnotes, the Group members elected to supply not even one citation for any of these outlandish claims. It doesn’t take a Ph.D. to figure out why.

What does the inclusion of these unsourced ramblings say about the editorial policies of the Duke University Press journal Social Text?

Here is what the scholars wrote in Social Text regarding the Group of 88:

[They] would become the objects not simply of hostility, on campus and off, but also of enormous faux-juridical speculation that sets forth the “legal” case against them and establishes the terms of the judgment they “owe” to make amends. (Typically we should resign, work as maids for the players’ families, return to the slave quarters, apologize, or simply hide in shame. At the very least, as Joseph W. Bellacosa has argued in a Newsday opinion piece, “Duke Faculty Should Be Shunned by Students.”). . . . In the language of the blogs, we were not just communists but traitors, and the fields of study we occupied were not areas of scholarly inquiry but pathological hothouses in the service of anti-American sentiment and reverse racism.

Here is the confusingly written footnote supporting the last quoted sentence:

A number of blogs have focused on discrediting the scholarly projects of specific members of the so-called 88 as a means of casting suspicion on their possible standing in the Communist Party and their complicity with terrorism and anti-Israeli sentiment. They have also been found guilty of numerous crimes, including treason, sedition, and tax evasion.

First, I strongly doubt that suggestions that the offending professors should "work as maids" or "return to the slave quarters" were "Typically" offered by their critics. Indeed, in a very quick Google search, I couldn't find any instances of these two suggestions. Such disgusting insults must have been relatively rarely made by their editorial and blogger critics, if made by them at all.

Second, the way that the footnote's comment about being a communist is presented makes it appear that such a claim is unwarranted. But according to a mainstream news magazine review of Johnson's book, Michael Hardt is a "self-described 'joyful communist.'" Is Hardt now implying that he was misquoted, or is he objecting to people describing him in the same terms that he describes himself? Certainly, there is nothing sleazy about calling a self-described communist a communist, just as it would be fair to call a self-described fascist a fascist.

Third, as KC Johnson notes, it was bad form for the professors not to have supported their claims about the blogs with actual citations to the offending posts. Assuming that the professors are not engaged in their own little hoax, I wonder whether their complaints about blogs aren't mostly about commenters to the blogs, rather than the posts of actual bloggers. Given the three professors' documented sloppiness with the truth and their unusual claims in their new article, the editors of Social Text should have required citations before allowing them to make such questionable claims in a scholarly article. (Indeed, it's not too late for the editors to publish an errata online giving citations for each claim I quoted and indicating which of them were actually made by bloggers themselves.)

Last, why do these Duke professors bother to write about the Duke lacrosse hoax if they are not going to deal with their own actions honestly? If they can't simply face the truth, they should put down their shovels and stop digging.


Bush v. Gore and Conservative Law Professors:

Andy Koppleman writes over at Balkinization:

One of the more depressing results of the decision was the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision. One can easily imagine what they would have said had the Court engaged in such contortions on behalf of Democrats. The dishonesty or self-deception of the Bush v. Gore majority is perhaps understandable: by reaching the result they did, they got something tangible that they badly wanted, a Republican president. But what, exactly, do scholars gain by mortifying their intellects in this way? They are worse than political hacks. They are public relations flacks for political hacks.

To which I respond, what on earth is Andy talking about? If conservative law professors were rushing to endorse Bush v. Gore, surely the Wall Street Journal's op-ed page would have found room to publish their views. A check of the Journal's archives showed that no such endorsement appeared. The Journal did, however, publish a critique of the opinion by then-Professor Michael McConnell, a piece that is said to have cost McConnell the solicitor general's job, and perhaps a supreme court appointment.

Meanwhile, I remember attending the Federalist Society's annual faculty conference just a few weeks after the decision. Not surprisingly, everyone was talking about Bush v. Gore, and to my recollection, no one endorsed the majority opinion on its merits, and quite a few attendees were openly hostile to the decision. Even Richard Epstein (a libertarian, not a conservative, fwiw), who defended the result in Bush v. Gore in 2001, described the majority opinion as a "confused nonstarter at best, which deserves much of the scorn that has been heaped upon it."

A few conservative legal scholars have defended the Supreme Court's resolution of Bush v. Gore from academic critics. But these are careful, scholarly works and were published well after the decision came out. No signs of rushes to judgment for political reasons here.

By contrast, even though the Court's basic equal protection argument received seven votes, I'm not sure that a single liberal law professor (a much larger group than conservative law professors) has argued that the Court was right, no matter how expansively such professors had previously argued the equal protection should be interpreted. Prominent liberal professors including Ronald Dworkin (NY Review of Books, Jan. 11, 2001), Bruce Ackerman (American Prospect, Feb. 12, 2001), Alan Dershowitz (Oxford University Press 2001), Michael Klarman (Calif. L. Rev. 2001), Jeffrey Rosen (New Republic, Dec. 25, 2000), and Laurence Tribe (Harvard L. Rev. 2001) wrote critiques of Bush v. Gore that appeared very quickly. And I also recall reading that one prominent (though unidentified) liberal law professor had an op-ed ready to be published the morning after the election arguing that the electoral college, not the popular vote, should determine the next president, only to pull the piece when it turned out that Bush, not Gore as expected, benefited from that line of reasoning.

Perhaps it's true that conservative law professors are more likely than liberal law professors to be "public relations flacks for political hacks." If so, the response to Bush v. Gore sure doesn't provide evidence.

UPDATE: And I as best I can recall, those few conservative law professors who did defend the Court's equal protection ruling argued that the decision was correct given existing precedent dating back to Warren Court decisions applauded by liberal scholars, not that the Court's opinion was correct on originalist grounds, or that it was a manifestation of judicial restraint.


"Wine's Pleasures: Are They All In Your Head?": The New York Times has this very interesting essay on the psychology of enjoying different wines -- and more broadly, on the psychology of enjoying lots of other luxuries. More over at The Pour.

Wednesday, May 7, 2008

McCain and the Jewish Vote, II:

Back in February, I suggested that McCain would start with a base of 25-30% of the Jewish vote (or slightly more than Bush received in 2004) and, if Obama was the nominee, that it's feasible he could get 40% or more.

A recent Gallup survey (analyzed here by Shmuel Rosner of Ha'aretz) shows Obama getting 61% of the Jewish vote, compared to 32% for McCain. Given that some fraction of Jewish potential McCain voters are probably reluctant to admit that they don't intend to vote for a liberal Democratic African American candidate (all three are categories to which many Jews feel loyalty/obligation), the real numbers are likely a bit worse.

The survey is based on polling data for the entire month of April, which means that it only partially accounts for the recent publicity over Rev. Jeremy Wright, whose antics (especially his vigorous defense of Farrakhan) are hardly likely to attract Jews to Obama.

Clinton does substantially better among Jews than Obama, which is especially interesting given that the Jewish demographic overlaps to a large degree with Obama's base of supporters--well-educated, professional, urban; the rural blue collar vote that has recently favored Clinton doesn't have much of a Jewish component. Gallup's press release doesn't break down the Jewish vote by subpart, but I'm guessing that Obama is particularly weak among older Jews, and among the Orthodox. Translation: trouble for Obama in Florida, and to a lesser extent Ohio and Pennsylvania (in the latter state, Hillary crushed Obama 62-38% among Jewish voters).

Caveat: The Gallup data is based on a sample size of only 588 Jewish Democrats, and Gallup does not reveal its estimate of the margin of error.


Sharia! Men Oppressing Women! American Courts and Foreign Law!

How come there aren't more comments on the Maryland court decision that refuses to recognize a Pakistani (Islamic law) divorce? What, not enough sex? Not enough politics? Not enough prosecutorial misconduct?


Michigan Supreme Court Domestic Partner Benefits Decision Available Online,



North Carolina Appellate Court, Lesbians, and the "Psychological Parent" Doctrine:

Mason v. Dwinnell, decided yesterday, upheld a trial court's decision that awarded joint custody of a child to the biological mother (Dwinnell) and the mother's lesbian ex-partner (Mason). The child had been conceived when Mason and Dwinnell were a couple, and was raised by Mason and Dwinnell together until the two broke up when the child was four; the two had then, by mutual agreement, had joint custody until the child was seven.

The court stressed that "[a]lthough this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties." And the court reasoned -- applying what looks like the "psychological parent" doctrine that quite a few courts have applied in recent years -- that because Dwinnell voluntarily let Mason help raise the child for several years, and let the child treat Mason as a parent, Dwinnell voluntarily surrendered her constitutional right to exclusive control over the child. The proper standard was thus the "best interests" standard applicable to disputes between parents; and the trial court's decision that joint custody was in the child's best interests was not an abuse of discretion.

I haven't thought much about the psychological parent doctrine, but I'm inclined to think that it is sound. And if it's sound in general -- for instance, when the psychological parent is a stepparent who raised the child from infancy (with the other biological parent out of the picture) -- then it's equally sound for same-sex relationships. Whatever one might say about whether in the abstract it's better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man.


"How Cleaning Up America Dried Up The Amazon": The New Scientist has an interesting report on some surprising relationships that may exist between pollution and climate change. (Obviously, this doesn't suggest that pollution is good — just that the interaction is complex.)

Maryland's Highest Court Refuses to Recognize Pakistani (Islamic Law) Divorce:

The case, decided yesterday, is Aleem v. Aleem. The court reasoned that, while foreign divorces are generally recognized unless they violate the state's public policy, the sex-discriminatory nature of Islamic divorce law does violate Maryland public policy, at least where the parties are Maryland residents.

"If the Pakistani marriage contract is silent, [footnote: The places in the “contract” where a division of property would normally appear were simply left blank in the case at bar.] Pakistani law does not recognize marital property. If a pre-marital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law.... In other words, the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband’s name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband’s name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy."

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes.

Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife, perform "I divorce thee ..." three times [which is what happened in this case -EV] and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

Earlier, the court also reasoned that "the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband’s permission, is contrary to Maryland’s constitutional provisions [barring sex discrimination] and thus is contrary to the 'public policy' of Maryland." Just as Maryland courts refuse to enforce English libel law judgments, because those are arrived at without regard to American free speech principles, so the court refused to enforce the Pakistani divorce.

Note that this does not preclude the enforcement of prenuptial contracts that expressly limit marital property rights — the court expressly speaks of the default Maryland rule applicable "[i]f a pre-marital or post-marital agreement in Maryland is silent with respect to marital property." (There might be some minimum rights that a spouse might have under Maryland law notwithstanding any express prenuptial agreements, but the court clearly contemplates that a good deal of one's marital property rights can indeed be waived through such an agreement.) It also doesn't speak to what happens if the prenuptial contract doesn't give a specific limitation, but rather states, "in the event of a divorce, we agree that the property shall be divided by applying Pakistani law" or "... by applying Islamic law" or "... under a decision of an arbitral tribunal convened through [name of group]." Here the contract was entirely silent, so the court had no occasion to decide the matter.

My view is that the court decision is quite right on these facts, given the absence of any express agreement about marital property division. I'm inclined to say that if the parties had agreed to an uneven property division, or to a property division pursuant to sex-discriminatory rules, that agreement should be enforceable (again, subject to whatever minimum support requirement state law generally imposes, and setting aside child support issues, which are a matter of duty to the child and thus can't be waived by contract with the spouse). The wife was only 18 when she married the husband, but she was an adult, and should thus be held responsible for her contractual decisions, even if they are made under social or family pressure. But of course I'm aware that others may disagree, and may take a more paternalistic view with regard to contractual enforcement; and in any event in this case, there was no express contract to the first instance.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. Prof. Friedman also links to this Baltimore Sun article, which has more on the case, including commentary from Islamic law scholars.


New Rankings of Educational Quality in Higher Education:

Rich Vedder at the Center for College Affordability & Productivity has a new effort to measure the educational quality at institutions of higher learning. He admits it is imperfect, but it certainly is more relevant than the sorts of stuff measured by US News:

But just below the top there are some surprises. Duke, MIT and the University of Pennsylvania make the top 10 list at U.S. News but not at CCAP. Duke students don't rate their professors high enough. At the University of Pennsylvania not enough grads made it into Who's Who. Brown and Northwestern, both ranked 14 by U.S. News, and Dartmouth College, ranked 11 by U.S. News, all make it onto our top 10. The University of Alabama, which got great reviews from students, came in a number 7 on our national public university ranking; it's at position 42 on U.S. News' list.

The biggest surprises come in our list of liberal arts colleges. Wabash doesn't make the top 50 on U.S. News' list but ranks tenth with CCAP because of the awards its students won and its showing in Who's Who. Several other schools not high on the U.S. News list, including Whitman, Washington & Lee, Barnard and the U.S. Military Academy (a.k.a. West Point), are in our top 10. A number of excellent smaller liberal arts colleges do poorly on the U.S. News list but fare very well on the CCAP list, including Reed (twelfth) and Knox (sixteenth). Like other consumers, students want satisfaction and results, which is what CCAP measures.

The rankings for national universities is here.


Why Not "Jewland?"

Ha'aretz explains how the Jewish state came to be called "Israel," something I've wondered about. I still think "Judea" or "Zion" would have been a better name. Ever (state of the Hebrews) was among the other names considered.

The objection that "Judea" was an actual historic state, much of whose territory was not included in 1948 Israel, neglects the fact that there was also a historical Kingdom of Israel, whose territory was also not included in 1948 Israel (Har Gerizim, for example, the site of the Israelite temple, is in Samaria, part of West Bank). Moreover, it would have made a pertinent political point to call the country "Judea"--that the 3rd Jewish commonwealth need not occupy the exact same territory as its predecessors, a point that some of the Messianic elements within the Israeli Jewish community would do well to heed.


Michigan Marriage Amendment Nixes Domestic Partners Benefits:

So said the Michigan Supreme Court in a 5-2 decision today.

By state constitutional amenment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

The "similar union" language, along with the "for any purpose" language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: "It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage."

The Michigan decision sets an interpretive precedent that may be followed in the many other states that have banned same-sex marriages and recognition of other relationships "similar" to marriage.

UPDATE: The full opinion is now available here.



I'll be rafting through the Grand Canyon and unavailable for ten days, May 8-18. No email, no Internet, no cell phone, no TV, no radio, no Pony Express.

If the California Supreme Court breaks out on us, you'll have to deal with them on your own.

Effects of Voter ID in Indiana Primary:

The Washington Post reports that other than for a handful of nuns and some college students from out-of-state, the state's Voter ID requirement upheld by the Supreme Court in Crawford does not appear to have created a significant obstacles to prospective voters' ability to cast ballots.

there were few other such incidents reported across the state, which has one of the strictest laws in the country, requiring voters to have a photo ID issued by the state or federal government. After the Supreme Court upheld the law by a 6-3 ruling last month, there was widespread speculation that the ruling could hurt Barack Obama in the primary, since he was counting on strong turnout among African American voters in inner city neighborhoods in Gary and Indianapolis where many residents lack drivers' licenses. But Obama spokesman Bill Burton said this evening that the campaign had received only scattered complaints on the voter hotline it set up to deal with problems at the polls. He credited the campaign's aggressive voter outreach effort to make sure supporters had the ID they would need. (Residents without driver's licenses can obtain free picture IDs at department of motor vehicle branches.)

Bethany Derringer, a spokeswoman for the Indiana Secretary of State's office, said the office also had not received many complaints on a hotline it set up for today's vote. She said that should not come as a surprise, given that the state's voters have had to contend with the strict law since 2005. "We've had nothing earth-shattering," she said. "We've done extensive education on this."

Related Posts (on one page):

  1. What About Those Nuns?
  2. Effects of Voter ID in Indiana Primary:

Kos does well predicting the NC and Indiana primaries.--

Actual Results: Clinton by 2% in Indiana and Obama by 14% in NC.

Here are Kos's predictions:


Clinton: 51.1 percent

Obama: 48.9 percent

(Clinton +2.2)

North Carolina:

Obama: 56.1 percent

Clinton: 43.9 percent

(Obama +12.2)


Indiana Too Close to Call [-- Clinton wins].--

1:12am ET UPDATE: Hillary Clinton has won Indiana by over 22,000 votes with all counties reporting.

12:50am ET UPDATE: This is the same model I used to predict that George Allen's lead over Jim Webb would disappear on election night 2006, long before the TV stations reached the same conclusion.

12:40am ET UPDATE: With 95% reporting, Clinton leads by less than 17,000 votes. If the remaining precincts break in the same way as the existing precincts in those counties (and Michael Barone suggests they won't), Obama would pick up 18,400 votes (not including over ten thousand uncounted absentee ballots), leading to a 1,770 vote victory for Obama. This analysis includes Hamilton, Hancock, Lake, Marion, and Monroe Counties, but excludes Union County, which has not yet reported.

After midnight ET, Barack Obama is closing the gap. If the missing precincts follow the rest of the precincts in their counties, Obama will win.

Obama has conceded to Clinton and Clinton has claimed victory, but all this may be premature.


Tuesday, May 6, 2008

McCain's "Justice Advisory Committee":

It has a bunch of law professors, including the VC's own Orin and Eugene. Here's a riddle: There are more law professors on this committee from George ___ Law School than from any other law school. Fill in the blank. Answer after the jump. Hat tip: Overlawyered.



Obama Wins Big in NC, Based on Exit Polls.--

Barack Obama has been declared the winner in North Carolina by Fox News and CBS.

The exit polls have him ahead 55% to 41%, a huge lead.


"Who Owns a Suicide Note?"

Slate's Explainer answers, "Either the sheriff or the medical examiner"; but I don't think that's quite right.

A suicide note is a tangible item that was owned by the person who committed suicide; the property rights in it, as with all other property, go to the person's heirs under the will or under intestate succession rules (if the person died without a will). The government may well have considerable rights to hold on to the tangible item for quite a while, because it's evidence in the investigation of the person's death. But that doesn't mean the government now "owns" the note, only that the law allows it to keep temporary custody of the tangible item.

The same is true of the suicide note as a copyrightable work. Any note that's longer than a few words is protected by copyright, even if there's no copyright notice; that work is originally owned by the author, but when the author dies it goes to the author's heirs. The government's temporary custody of the note may physically block others from copying the copyrighted work, but the government doesn't own the copyrighted work.

As the Explainer points out, the government may also have -- depending on state law -- have the duty to place the contents of the note in the public record. I expect that such state laws do not violate federal copyright law, because such placement would be "fair use," despite the general principle that fair use is rarely available as to unpublished works. And fair use may also allow the media and others to further reprint what they see in the public record.

But none of this makes the government the "owner" of the copyright in the suicide note, because the government lacks a quintessential right of an owner: The legal right to exclude others from using the property. If, for instance, the suicide's heir reads the suicide note before the police show up, the heir may then publish the text of the note, and the government can't stop him: They don't actually own the copyright. If a third party publishes the text of the note, perhaps that might infringe the copyright in the note (unless that too would be fair use, which it well might be) -- but it would be the heirs, not the government, who would decide whether to sue over the infringement, because it is the heirs who own the copyright.

Now, as I said, it might well be -- especially if the note is placed in the public record and can then be copied freely from there (presumably on a fair use theory) -- that everyone would then be able to publish the note without copyright liability. But that just means that the note effectively wouldn't be owned by anyone: It would effectively stop being property at all, much like the works of Shakespeare stopped being property. (I say "effectively" because, unlike with Shakespeare's works, the note would still be technically covered by copyright law, but by hypothesis that formal protection would have no effective bite because of the broad fair use rights.)

So, the suicide note as tangible item would remain owned by the heirs, though the government would have temporary custody (as the body of the Explainer item discloses). The suicide note as copyrighted work would either be owned by the heirs -- subject potentially to some considerable rights on the government's part to place the note in the public record -- or would be effectively no-one's property, if the fair use rights are so broad that anyone would be free to copy it. The copyrighted work would never become the government's property in the sense of the government's having the right to stop others from using it.

Finally, this highlights a broader point: One often hears that the options are whether one entity owns the property or another entity owners the property, for instance "Do consumers own their personal information or do merchants?" But there's also often a third option -- no-one owns the property any more, and it's free for everyone to use. That's generally the case, for instance, as to facts (such as information about certain transactions, which the consumer, the merchant, and anyone else who learns about it are all free to disclose). And it may end up being the case for suicide notes that end up in the public record.


Clinton leads in exit Polls in Indiana.--

Although Fox News is not calling the Indiana primary, in exit polls Clinton leads by 7% among Democrats, a bit less among Republicans crossing over. She polls behind Obama 49% to 51% among Independents. [Overall, Clinton leads 52% to 48% in the exit polls.]

If the polls are accurate, it sounds like a 3-10% win in Indiana for Clinton, perhaps more if there is a Bradley Effect.

With 5% of the Indiana votes counted, Clinton leads 59% to 41%.

UPDATE: At about 8:10pm ET, CBS called Indiana for Clinton.

2d UPDATE, 11:30pm ET: I recently returned from the Becker-Posner rational choice workshop at Chicago. So far only CBS has called it for Clinton. And Lake County near Chicago seems to be holding back its votes. It could go either way.

3d UPDATE, 12am ET: Things are beginning to look like they are trending toward Obama in Indiana, but it's too soon to tell.


I Guess We Knew This Was Coming: From the Associated Press, via Howard:
   A former judge who lost a $54 million law suit against a dry cleaners over a missing pair of pants is suing to get his job back and at least $1 million in damages.
   In the suit filed in federal court, Roy Pearson [alleges] he was wrongfully dismissed for exposing corruption within the Office of Administrative Hearings, the department where he worked. In court documents, Pearson said he was protected as a whistle-blower and that the city used the fact that he was being "vilified in the media" to cut him out of his job.

"But for the Muslim Faith, the Children Would Have No Faith at All":

An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):

The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.

The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.

Two thoughts about this:

(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.

(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.


Obama Campaign Responds to McCain Speech on Judges: In his post below, Paul wonders how Senator Obama will respond to Senator McCain's address on judges. The Obama campaign put out the following statement this afternoon:
The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman’s right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

Prosecutorial Misconduct:

Check out the Ninth Circuit's decision in U.S. v. Chapman for a sharp rebuke of the government, including the affirmance of a district court's dismissing an indictment with prejudice — thus barring retrial — because of government misconduct:

The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial — the only lesser remedy ever proposed by the government — would substantially prejudice the defendants.

And from earlier in the opinion:

We are similarly troubled, both by the AUSA’s actions at trial and by the government’s lack of contrition on appeal. The government attorneys who appeared in the original AUSA’s stead on the critical day of the hearing on the motion to dismiss the indictment told the trial court that they “took this matter extremely seriously” and conceded that the government made a “very serious mistake in terms of [its] discovery obligations.” Before us, however, these same attorneys have attempted to minimize the extent of the prosecutorial misconduct, completely disregarding the AUSA’s repeated misrepresentations to the court and the failure to obtain and prepare many of the critical documents until after the trial was underway. Instead, they claim for the first time on appeal that none of the 650 pages were required disclosures under Brady/Giglio. When the district court first indicated that it was inclined to dismiss the indictment, it noted that it was “concerned [that] any lesser sanction [would be] like endorsing [the AUSA’s conduct].” The government’s tactics on appeal only reinforce our conclusion that it still has failed to grasp the severity of the prosecutorial misconduct involved here, as well as the importance of its constitutionally imposed discovery obligations. Accordingly, although dismissal of the indictment was the most severe sanction available to the district court, it was not an abuse of discretion.

By the way, note that the panel decision was unanimous, and that the panel consisted of two moderate Clinton appointees (Judges Wardlaw and Hawkins) and a quite conservative Reagan appointee (Judge O'Scannlain).


McCain Justice Advisory Committee: The Hotline has posted a list of members of the McCain campaign's newly-formed Justice Advisory Committee.

An Odd Bit of Legalese:

In today's Ninth Circuit decision in U.S. v. Chapman:

The government misrelies upon United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984), and United States v. Gatto, 763 F.2d 1040 (9th Cir. 1985), to argue that ....

A quick NEXIS search through the NEWS;CURNWS and NEWS;ARCNWS files for "misrely," "misrelies," or "misrelied" found zero mainstream publications using the term. (It did come up with one law review article.) Neither the OED nor the dictionaries available through gave any definitions for "misrely." Google search likewise yielded very few examples; "misrely" produced only 158 items (not the number Google indicated at first, but the number one sees when one gets to the end of the Google results) — nearly all were either misspellings of "miserly," word lists, or junk. Likewise for "misrelied" (95 items) and "misrelies" (89 items).

But a Westlaw caselaw search found 30 cases, one from 1939 and the rest from 1973 or more recently, using the term or its variants. A search through law review articles found 9 items, though one was a quote of a case. That's not a lot of hits, but it suggests that the word is in some regular use: By way of comparison, eminently normal (again, not very common, but normal) words such as "enigmatically" (147 uses in caselaw), "pessimistically" (32 uses in caselaw), or "defeatist" (100 uses) are within an order of magnitude of this frequency (though I acknowledge that for "misrely" I looked at three grammatical forms of the term and not just one).

So this strikes me as an unusual example — a term that in Nexis-available sources is used exclusively by lawyers, that appears in its various forms on nearly 40 occasions in published legal work, and yet doesn't seem inherently tied to legal concepts. Why would the word have emerged among lawyers but not among others?


More on Regenerative Medicine, as to Fingers and Other Things:

The Speculist has more, arguing that there's a lot of there there.

Related Posts (on one page):

  1. More on Regenerative Medicine, as to Fingers and Other Things:
  2. Boy, I Sure Hope This Pans Out:

Academic Legal Writing:

A very nice review from Tiger Jackson and Jeff Newman, in 11 Scribes J. Legal Writing 141 (2007):

Every law student is encouraged to try to make law review, but no one has ever explained how to do it as well as Volokh. His tone and style are so natural that you can hear his voice in your mind. Starting from scratch, he explains what a law review is, why the experience is valuable, what the write-on competition entails, how to boost your chance of success on it, and what the staff of a law review does. He demystifies the details of the write-on, making this section alone well worth the price for first-year law students.

But even a student who has no desire to be on law review will find this book enormously helpful for writing a seminar paper. In addition to reviewing important points of writing style (e.g., passive voice, legalese, redundancy), Volokh briefly explains the often-overlooked elements of logic and rhetoric and how their misuse can diminish an argument. Unlike most other writing guides, Volokh's book spends plenty of time showing the reader how to use evidence and why it must be critically examined rather than blindly accepted. Even though only five pages are especially devoted to seminar papers, much of the advice Volokh dispenses about writing for law review applies just as well to writing for a professor, and Volokh explains why. He encourages students to consider submitting papers to competitions and even to other law reviews, whether or not they are on their own schools' law review.

Despite the subtitle, this book isn't just for law students. Novice and experienced law-review writers will also find sound advice for improving their writing and expanding their markets. Volokh systematically guides the reader through the stages of producing publishable legal writing, from choosing your subject to methodically researching it, writing about it, and submitting the piece for publication. This book is a must-have for every law student. We also recommend it for practitioners interested in writing and publishing scholarly papers.

So the book is a nice present for incoming law students, for students who are starting their second year and plan to participate a law review write-on competition, for students who plan to write a student article (whether for law review or otherwise), or for graduates who are contemplating going into teaching and thus need to write more.

As I mentioned before, the publisher no longer gives me copies than I can sign and sell. But I've finally made up some bookplates — basically labels with a simple design on them — that I'll happily inscribe, sign, and send to anyone who asks. Send no money, but e-mail the address and the preferred inscription (if you have a preference) to volokh at


Josh Wright on Law & Econ:

Josh Wright has continued his series of posts on law and economics (prior posts embedded in his most recent post).


New Criterion Symposium on Liberal Education:

Several very interesting articles in the latest issue of The New Criterion. The full issue is available here.

This is an interesting passage from the essay by Alan Charles Kors on "The Sadness of Higher Education":

The academic world I so loved revealed itself best in an undergraduate course I’d taken on the history of Europe in the twentieth century. When the professor, a distinguished intellectual of the Left, returned the midterms to the hundred plus or so of us who were in his course, he said that we’d saddened and embarrassed him. “I gave you readings that allowed you to reach such diverse conclusions,” he explained, “but you all told me what you thought I wanted to hear.” He informed us that he would add a major section to the final exam: “I’m going to assign the book I disagree with most about the twentieth century. I’m not going to ask you to criticize it, but, instead, to re-create its arguments with intellectual empathy, demonstrating that you understand the perspectives from which he understands and analyzes the world.” I was moved by that. The work was Friedrich Hayek’s The Road to Serfdom, and it changed the course of my intellectual and moral life. It also showed me immediately how I wanted to teach as an intellectual historian. Each year, I teach thinkers as diverse as Pascal and Spinoza, Hobbes and Butler, Wesley and Diderot. I offer courses on intellectual history, and the goal of my teaching is to make certain that my students understand the perspectives and rich debates that have shaped the dialogue of the West. I don’t want disciples of my worldview. I want students who know how to read deeply, how to analyze, how to locate the essential points of similarity and divergence among thinkers, and, indeed, how to understand, with intellectual empathy, how the world looks from the diverse perspectives that constitute the history of European thought. I know that I am not alone, but I also know, alas, that I am in a distinct minority in my pedagogical goals in the humanities and the so-called social sciences.


Michelle Obama’s Stump Speech: The Politics of Frustration.--

Byron York is among several commentators today who, with a jaundiced eye, are covering or discussing Michelle Obama’s stump speech:

Walking onstage to chants of “Yes, we can!” and “Fired up — ready to go!” she quickly gets to the heart of her message: There are forces out there who are trying to take away everything Barack has worked for. They — she doesn’t mention anyone in particular but does refer to one “brand name politician” — are trying to win this election for themselves and thereby deny Obama the opportunity to move America to the mountaintop of hope. And they must be stopped.

“We’ve learned that we’re still living in a time and in a nation where the bar is set, right?” she tells the crowd.

“That’s right.”

“They tell you all you need to do is do these things and you’ll get to the bar — ”


“So you go about the business of doing those things — ”

“Yes — ”

Her husband has been doing just that, Obama explains — raising money, building an organization, winning caucuses, winning primaries, and amassing a large number of delegates. And yet he still hasn’t won, because nothing is ever enough for those unnamed adversaries.

“You start working hard and sacrificing, and you think you’re getting closer to the bar, you’re working and you’re struggling, you get right to that bar, you’re reaching out for the bar, and then what happens?”

“They raise the bar!”

“They raise the bar. Raise the bar. Shift it to the side. Keep it just out of reach.”


“And that’s just what’s been happening in this race.”

Mrs. Obama begins a long riff about how that is happening not just to her husband but to Americans as a whole, who are working hard only to find the benefits of their work kept just out of reach. “You know what happens when you live in a society where the vast majority of people are struggling every day to reach an ever-shifting and moving bar?” she asks. “You know what happens in that kind of society?”

“THEY GET FRUSTRATED!” yells a man in the audience.

That’s right, Obama says. And that frustration leaves people isolated and afraid, and then “we pass on all that negative energy to the next generation.” She tells the story of a ten-year-old girl she met in Newberry, S.C., before that state’s primary. “It was in a little beauty shop, and we were having a rally — it was me and a bunch of women and a couple of brothers,” she recalls. After the rally, the girl came up to her and said, with great seriousness, “Do you realize when your husband becomes the next president of the United States, it will be historical?”

Everybody laughs; what a cute thing for a child to say. But then Obama asked the little girl what that would mean for her. “It means that I can imagine anything for myself,” the girl said.

The crowd begins to applaud; they think they’re hearing a happy, inspiring story. But that’s not where Mrs. Obama is going.

“And then that little girl started to break down in tears,” she continues. “She sobbed so hard. She was crying big, huge tears. And I had to think, why is this little girl crying so hard? And I thought, you know what’s going on? This little old girl gets it.”

“Yeah — ”

“This little ten-year-old girl knows what’s at stake.”

“That’s right — ”

“She knows that she’s already five steps behind — “

“Mmm-huh — ”

“She knows that her hopes for college are already dwindling — ”

“Yes — ”

“She knows that if she gets sick, maybe has an asthma attack, instead of going to a doctor and being treated, she’s going to be sitting in an emergency room for hours on end.”

“That’s right — ”

In short, Obama says, the little girl, just ten, knows that the bar has been moved far away from her, and she “feels that veil of impossibility, and it is suffocating her.”

“This little girl is in all of us,” Obama concludes.

“Mmm-huh — ”

Even Michelle Obama herself. “I’m not supposed to be here,” she tells the crowd. “I am a statistical oddity. As a black girl raised on the south side of Chicago, I’m not supposed to be here. I wasn’t supposed to go to Princeton. They said my test scores were too high” — surely a verbal slip, because in the past she has said she was told her test scores were too low — “I wasn’t supposed to go to Harvard Law School, because they said it might be a little too hard for me. And I certainly am not supposed to be standing here with a chance to become the next first lady of the United States of America.”

But here she is, in just that position — only to find that they, as always, are trying to raise the bar a little higher, just out of her and her husband’s reach. Still, she asks the crowd “to close your eyes and do some dreaming…to dream of the day that a man like Barack Obama is standing in front of the Capitol with his hand on the Bible.” With that, the audience erupts into shouting and applause.


Senator McCain's Speech on Judicial Philosophy

Senator McCain spoke at Wake Forest University today on his judicial philosophy. The text of the speech can be found here.

From a conservative perspective, he says all the right things. I take him at his word. I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.

Senator McCain also spoke eloquently about the rule of law. He concluded his speech with this passage:

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them — the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice.

I would be interested in seeing Senator Obama's response to the speech, including a more thorough explanation of why he was one of 22 Senators to vote against Chief Justice Roberts.


Pollsters Battle it Out in Primaries.--

It’s not just Obama v. Clinton today. Among pollsters, it’s Zogby v. Insider Advantage and Survey USA.

Zogby has Obama up a staggering 14% in NC and, perhaps more surprising, Obama also up 2% in Indiana.

Insider Advantage shows Obama up only 4% in NC and down 4% in Indiana.

Survey USA has Obama up 5% in NC and down a staggering 14% in Indiana.

My guess is that Zogby will be farther from the final results than Insider Advantage (and perhaps than Survey USA as well). But then, I haven't done any polling in either state.

In the November 2004 general election, Survey USA got the state-by-state presidential results closest of 11 polling organizations studied.

UPDATE: As noted in the comments, Daily Kos has a nice review of 6 pollsters this primary season. Survey USA (4.7% av. error) has a wide lead over 2d place Rasmussen (8% av. error). In fifth and sixth (last) place are Zogby (9.8%) and Insider Advantage (10.1%).

2d UPDATE: In NC, with a large African-American turnout and heavy pre-election voting, most of the online commentators are predicting a huge win for Obama. So Zogby might be right after all . . . .

3d UPDATE, Tuesday evening: Right now Indiana is too close to call and NC is going overwhelmingly for Obama. At least in the closeness of estimates, it appears that Zogby is going to be a big winner as well tonight.


Will Dann Be Impeached?

Officials from his own party have threatened to impeach embattled Ohio AG Marc "Dannimal House" Dann, but Dann is hanging on (for now). While there's no schedule for impeachment proceedings at the moment, this Saturday the state Democratic Party will vote on rescinding its 2006 endorsement of Dann for AG. Such a vote would change Dann's affiliation from "Democrat" to "Independent elected as a Democrat."

If the legislature follows through on the impeachment, Dann could be the first statewide Ohio elected official ever to be impeached and removed. The Plain Dealer is listing potential replacements.


Nothing New Under the Sun:

Charles E. Pierce was prosecuted for violating section 12.05 of the Wisconsin Corrupt Practices Act, which bars spending aimed at "influenc[ing], directly or indirectly, voting at any election or primary," except (1) by a candidate or a candidate's campaign committee, (2) by a party committee, or (3) by people "residing with the county where such expenses are incurred" who are spending the money "for rent of hall or other rooms, for hiring speakers, for printing, for postage, for telegraphing or telephoning, for advertising, for distributing printed matter, for clerical assistance and for hotel and traveling expenses." (There was also an exception for speakers' paying their own traveling expenses.) The Wisconsin Supreme Court struck this down as a violation of the freedom of speech.

The interesting thing is that this happened in 1916, in State v. Pierce, 158 N.W. 696 — and the arguments about this sort of speech restriction were in many ways quite similar to what we hear today. Here are some excerpts, first from Chief Justice Winslow's majority opinion:

Freedom of speech and freedom of the press have always been supposed to be the very corner stones of Anglo-Saxon democratic institutions.... The Constitution of Wisconsin declares (section 3, art. 1): “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press” [and Section 12.05 violates this provision] ....

Under [the] terms [of section 12.05] a man, or body of men, who are honestly convinced of the necessity of a change of policy in the state government, commit a crime if they spend any money in another county than their own in bringing their views to the notice of the voters of such other county. There is really but one exception to this, and that is that a public speaker may pay his traveling expenses in going to and from his own meetings, but even he may not hire a hall in which to make his speech. If this be not an abridgment of freedom of speech, it would be difficult to imagine what would be.

Under such a law no pioneer in any reform which depends for its success on a change in the law could leave his own county and communicate his sentiments at his own expense to his fellow citizens of other counties without committing a crime. Under such laws no great propaganda for better laws and better political conditions which has not been formally taken up by a political party can ever be carried on, and the reformer whose eye kindles with the dawning light of a better day must be content to confine his personal activities to the inhabitants of his own small bailiwick.

Almost every forward step in political and governmental affairs comes as the result of long agitation and discussion in the press, on the rostrum, and in the open forum of personal contact. This agitation and discussion often goes on for years before the idea is formally indorsed by any party. Yet it will generally be the case that during this period there will be individual candidates in one party or the other, or both, who favor the new thought. Now this law means that in such a situation no man, or group of men, can do a stroke of political work involving expense in any other county than their own, however legitimate and praiseworthy be the means which are used. No political committee will take up the work, for the very good reason that the party organization has not indorsed the doctrine.

There are times also when devoted citizens firmly believe that no organized political party stands for the right or deserves support, and that an independent candidacy is necessary. Can it be that under such circumstances these citizens can be wholly deprived of the right to go to any part of the state at their own expense, collect information on the subject, and endeavor by word of mouth or by the distribution of printed matter to put the issue as they see it before such fellow voters who are not residents of their own county? ...

We are by no means unmindful of the high and admirable purposes which inspired the authors of the Corrupt Practices Act. There is no member of this bench who is not in the fullest sympathy with any legislation which will tend to reduce to an absolute minimum the danger of corruption and coercion during political campaigns, but when such a law goes beyond regulation, and absolutely prohibits that which the Constitution expressly protects, the court can do nothing but say so....

Now here's Justice Siebecker's dissent, joined by Justice Kerwin:

The terms of section 12.05 are not, in my opinion, an invalid restraint or abridgment of these rights [to speak and publish] in the light of an urgent necessity to regulate the mischievous expenditures of money in elections. It is important to observe that the statute does not regulate the expenditures of money by persons in their political activities, or in promulgating their sentiments and convictions on any subject or any policy of government disassociated from and independent of any activity of influencing voters in an election, and also that no person is precluded from participating as a speaker in political campaigning in elections and speaking his sentiments freely, except that when a person so participates as a speaker in an election campaign to influence voters ... [he must] carry on his work at the expense of a party committee, a personal campaign committee, or a local county agency ....

The act also permits the widest freedom to all persons and groups of persons to promote and agitate for any cause by the press, and print through the mails at the place of their residence, and thence throughout the state. This shows that the freedom of speech and press is wholly unaffected by the provisions of this act, and is as unconfined as ever as to all matters other than campaigning for votes in an election, and in such campaigns all persons have the unrestricted liberty to speak throughout the state as they please and employ the mails of their counties, and thence throughout the state to publish their sentiments and expound their doctrines, policies, and reforms concerning any cause. [Note the echo of the modern "media exception." -EV] A very broad and unrestricted field for activity is thus available to every publicist, speaker, reformer, or any body of men honestly concerned with the necessity of bringing their views to the notice of votters of the state....

Reasonable regulations to guard the ballot are necessary to prevent unbridled license in the exercise of these fundamental rights [of speech and press] in order to maintain a government of laws.... [C]orrupt practices acts are enacted to remedy these evils, and the right of free speech and press does not imply that its inviolability is such that it can do no wrong. Indulgence of it is always conditioned on the proposition that its exercise does not subvert the government, and “is limited, but not abridged, by laws passed in the exercise of police power for the protection of the moral health of the community.”

The legislative provisions of section 12.05 are directed at the evils in elections, and seek to correct them by limiting contributions and expenditures of money, and by requiring all persons engaged in political campaigning to carry on their activities through the prescribed agencies of committees and local groups. To accomplish these purposes the Legislature found it necessary and expedient to subject the citizen to these methods of campaigning, which in some measure operate to confine the rights of the freedom of speech and press in elections to the prescribed manner of exercising them.

[The free speech/free press clause of the state constitution], in common with all other provisions, is subordinate to the great leading purpose for which constitutional governments have been established, namely, to form a more perfect government and to promote the general welfare, and, like all fundamental rights, requires regulation to prevent these rights from being abused, which is the law of liberty. This doctrine is forcibly and clearly expressed in the words: “Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.”

Where the abuse of the purity of elections begins, through whatever means it be accomplished, liberty of speech and press must end, for without such a check this right could be made a most effective instrument of mischief. The Corrupt Practices Act was framed to guard against such mischiefs, and the Legislature found its provisions appropriate and necessary to check existing evils, which threatened to subvert the rights and privileges, of the elective franchise. In the light of the public evils and the pernicious influence on voters in elections which flow from the lavish expenditure of money, there is much justice and sound public policy in the legislative restrictions imposed on persons by the Corrupt Practices Act.

No doubt exertion of the legislative power in this regard has its difficulties and embarrassments in order to preserve and protect the elective franchise from abuse and the rights guaranteed by liberty of speech and press.... [But the law is] within the discretion which obviously animated the legislators in their vigilance to correct existing mischiefs that threaten to subvert the purity of elections, and ... its provisions do not operate to unreasonably restrain or abridge the liberty of speech and press in the light of eradicating the evils that have grown up in the political field from lavish expenditures of money which menace the freedom and purity of the ballot....


Monday, May 5, 2008

1930s Fashion Designers Predict Fashion in the Year 2000: Pretty amusing — and nice work on the prediction about carrying phones.

It's David Lat's World, and BigLaw Partners Are Just Living In It: Remember the old days when law firms worried about getting sued if they fired an attorney? These days, I would think the greater fear is that the firing will get ugly and end up featured on Above the Law.

A Few Final Thoughts on Burkean Conservatism:

Dale's helpful latest post helps clarify and sharpen our remaining disagreements about Burkean conservatism, the degree of deference due to tradition, and the costs and benefits of rapid change.

Dale continues to agree with me that "coercively imposed traditions" are not due any presumption of validity. But he clarifies his stance by stating that this category should be limited to "practices imposed by authoritarian societies, which never grew from the common sentiments and culture of the people but are simply imposed by some dictator like Stalin or Hitler." This is still a very important narrowing of the Burkean presumption in favor of tradition. Most of the world's governments throughout history have been authoritarian or totalitarian, and Burkean conservative arguments have often been deployed against proposed changes in those governments' structure and policies. Even in many democratic societies, there are important policies that have been left in place from pre-democratic times because of the force of inertia, status quo bias, or accumulated interest group power.

However, Dale is right to suppose that my notion of "coercively imposed traditions" is broader than his. I do not claim that any tradition that some people consider "oppressive" is coercively imposed. However, I do believe that this is true of traditions imposed on a large group of people against their consent, even in the case of democratic societies. There is a possible exception for policies imposed for the purpose of eliminating preexisting coercion (e.g. - the abolition of slavery, which was imposed over the objections of slaveowners). And obviously, the definition of "coercion" is itself contestable in lots of ways I can't even begin to address in this post.

In general, however, democratic process has too many flaws for us to assume that a policy has a presumption of validity simply because it has been enacted and maintained by democratic means (widespread political ignorance on the part of voters is one such flaw, but by no means the only one). This is especially true in the case of policies that victimize groups who have little or no influence over the political process. For example, gays and lesbians had very little political influence until fairly recently, because it was too dangerous for most of them to openly identify themselves, and thereby almost impossible for them to mobilize politically. This is, to my mind, a compelling reason for denying antigay policies enacted during that period any presumption of validity - no matter how long they have been in place. Such policies might still be persuasively defended (though I doubt it); but it would have to be on grounds other than a presumption in favor of tradition.

Democratically enacted policies are probably better, on average, than those enacted by dictatorships or oligarchies. But there is no reason to presume that status quo democratic policies are necessarily better than market processes or than new policies enacted by the very same legislative processes that produced the old ones.

Another difference between us is that I continue to believe that status quo bias is a serious problem, whereas there is no comparably widespread irrational bias in favor of change. As I discussed in a previous post, I think the social science research generally supports me on this. If I am right, a Burkean presumption in favor of tradition is likely to reinforce harmful preexisting biases.

Finally, Dale says that the Burkean presumption against rapid change should only be set aside in the case of "slavery, and comparably great evils, and not much else." This is a narrower formulation than his original statement that it should be set aside whenever there is a "gross injustice" or a "great" and "irreparable" harm. To my mind, the new formulation is too narrow, and I like the earlier one better. I don't see why a policy that causes "only" half has much harm and injustice as slavery should be subject to a presumption in favor of gradualism. Moreover, the new formulation also ignores the other potential advantages of rapid change that I discussed in my first post in this series.

That said, I will end by reiterating my view that there should be no general presumption in favor of either gradualism or speed. The optimal pace of change will vary from case to case. There are situations where even a very great injustice should be eliminated only gradually, because the costs of rapid change are too high.

On balance, I think Dale's version of Burkean conservatism is more appealing than many others because he wisely jettisons some of Burkeanism's most indefensible baggage. However, I think the logic of his limited concessions to the value of change is compelling enough to justify going further in the same direction.


"Not Going To Put My Lot in With Economists":

From ABC News This Week on Sunday, an exchange about Sen. Hillary Clinton's gas tax suspension plans:

[George Stephanopoulos:] But economists say that's not going to happen. They say this is going to go straight into the profits of the oil companies, they're not going to actually lower their prices. And the top two leaders in the House are against it. Nearly every editorial board and economists in the country has come out against it. Even a supporter of yours, Paul Krugaman of 'The New York Times" calls it pointless and disappointing. Can name one economist, a credible economist who supports this suspension?

[Clinton:] Well, you know, George, I think we've been, for the last seven years, seeing a tremendous amount of government power and elite opinion basically behind policies that haven't worked well for the middle class and hard-working Americans. From the moment I started this campaign, I've said that I am absolutely determined that we are going to reverse the trends that have been going on in our government and in our political system. Because what I have seen is that the rich have gotten richer. A vast majority, I think something like 90% of the wealth gains over the last seven years have gone to the top 10% of wage earners.

[Stephanopoulos:] But can you name an economist who thinks this makes sense?

[Clinton:] Well, I'll tell you what, I'm not going to put my lot in with economists. Because I know if we did it right, if we actually did it right, if we had a president who used all the tools of the presidency, we would design it in such a way that it would be implemented effectively....

Thanks to Wall Street Journal's Best of the Web for the pointer.


Another Volokh Conspiracy Commenter Makes the Big Time:

California Lawyer cites Cornellian:

Last summer David B. Lat, a former federal prosecutor who writes Above the Law (, openly made fun of the lyrics to a song that law firm Nixon Peabody commissioned to celebrate its inclusion in Fortune magazine's list of the best companies to work for. Nixon Peabody asked Lat to take the posted song down from his blog, claiming copyright violation. The dispute landed in the New York Times and provided fodder for countless other blogs. "... boy am I glad I don't work at Nixon Peabody," commented someone called Cornellian at the popular Volokh Conspiracy blog ( "That song makes it seem like a place run by Dilbert's pointy-haired boss."

Thanks to Nick Mikulicich for the pointer.


The Appropriate Role of Outside Critics in Politicized Academic Disciplines:

I came across an interesting post by Professor Kenneth Dauber on a list to which I subscribe. I am reprinting it below with his permission. Professor Dauber's comments were prompted by the recent tenure controversy involving Barnard anthropology professor Nadia Abu El-Haj, and an obviously one-sided article in the New Yorker on that controversy, but I think have broader significance. Note that I don't know enough about anthropology to endorse Professor Dauber's view of that discipline [note that he takes no position on the quality of El-Haj's work]. But Professor Dauber's remarks go to a broader issue--the tendency of certain departments, or entire disciplines (see, e.g., Women's Studies), to be overtly politicized, and for academics who have participated in this politicization to then claim some sort of academic freedom right to autonomy not merely from outside interference, but from outside scrutiny and criticism. Here's Prof. Dauber:

1)Modern anthropology, founded, essentially, by Franz Boas — interestingly enough, a Jew and a professor at Columbia — took as its social good the appreciation of communities that the march of the West had relegated to the primitive.

Contemporary anthropology continues that tradition, but, now under the influence of a general academic agreement that the West equals colonialism, with barely a remainder of what else the West might be, it continues with the difference that it is less important to articulate the values of marginalized communities than to break down Western hegemony.

That the anthropological project of appreciating other communities is also a product of the West is what anthropology cannot admit. And that marginalized communities might adhere to values that are, actually, not to be appreciated is outside the discourse.

2) History: History is not particularly interesting to anthropologists. Since what anthropology is interested in is the way in which communities construct themselves, history and myth, fact and fiction serve equally well.

Anthropology is very bad at analyzing historical cultures--that is cultures for whom what actually happened is important. What actually happened is not exactly outside the discourse, but it is, if we may use the word, itself "marginalized."

3) Free speech: Within academic disciplines, free speech is highly constrained. There are norms, criteria of what counts as evidence, attitudes, and anyone violating these will have a hard time getting published or getting a job or getting promoted.

Depending on the criteria, this can be a good thing. It rules out the promotion of fantasy. When the criteria themselves are fantastic, however, they rule out the promotion of anything one might like to call truth.

Comparing the criteria you use with the criteria that those in other disciplines use is generally outside the discourse of your own discipline, not only in anthropology, of course, but very definitely in anthropology.

Let's put it bluntly: Whatever the particulars of the Abu-El-Haj case, whether her work is good or bad, to deny that a highly politicized discipline that evaluates the work of its practitioners from within the terms of that politics, to claim that experts with a vested interest in the blindness of their discipline necessarily are objective, to attribute to everyone and every objection an unholy commitment that contrast badly with the holy commitment of defenders is not only to be blind but either to blind yourself or attempt to blind others.

UPDATE: Post slightly edited for clarification purposes.

Related Posts (on one page):

  1. Norman Levitt on Nadia Abu el Haj and "Science Studies":
  2. The Appropriate Role of Outside Critics in Politicized Academic Disciplines:

DNA Matches and Statistics:

Patterico criticizes the use of statistics in this L.A. Times article:

[I]n 2004, a search of California's DNA database of [338,000] criminal offenders yielded an apparent breakthrough [in a 1972 rape/murder case]: Badly deteriorated DNA from the assailant's sperm was linked to John Puckett, an obese, wheelchair-bound 70-year-old with a history of rape.

The DNA "match" was based on fewer than half of the genetic markers typically used to connect someone to a crime, and there was no other physical evidence.

Puckett insisted he was innocent, saying that although DNA at the crime scene happened to match his, it belonged to someone else.

At Puckett's trial earlier this year, the prosecutor told the jury that the chance of such a coincidence was 1 in 1.1 million.

Jurors were not told, however, the statistic that leading scientists consider the most significant: the probability that the database search had hit upon an innocent person.

In Puckett's case, it was 1 in 3.... In every cold hit case, the [scientific expert advisory] panels advised, police and prosecutors should multiply the Random Match Probability (1 in 1.1 million in Puckett's case) by the number of profiles in the database (338,000)..

I'm not knowledgeable enough about these things to speak with confidence about just how these things can be explained accurately and comprehensibly to a jury. I may also be mistaken even about the more basic things (I've forgotten far too much about statistics, I'm sorry to report). Still, I'm pretty sure that both "the chance of such a coincidence was 1 in 1.1 million" and "the probability that the database search had hit upon an innocent person ... was 1 in 3" aren't quite right.

To begin with, if I'm right that the "1 in 1.1 million" number means roughly that 1 in 1.1 million people have the particular DNA markers that Puckett had, that's about 6000 people worldwide. To say that the defendant is one of only 6000 people who may have committed a crime (or one of only 3000, if the 1 in 1.1 million figure means 1 in 1.1 million males) doesn't by itself tell you much. It certainly doesn't tell you that there's only a 1 in 1.1 million chance that "although DNA at the crime scene happened to match his, it belonged to someone else."

Now it may well be that, coupled with other evidence, the DNA match information might be quite probative. To take a simple example, imagine that only 1 in 100 men have red hair, and it's discovered that the killer had red hair. That the defendant had red hair is surely relevant evidence, coupled with various other evidence. But it doesn't say that there's only a 1% chance that "although the hair color at the crime scene happened to match [the red-haired defendant's], it belonged to someone else."

On the other hand, "the probability that the database search had hit upon an innocent person ... was 1 in 3" also strikes me as wrong. Most obviously, I don't think it can't be the case that you should just "multiply the Random Match Probability (1 in 1.1 million in Puckett's case) by the number of profiles in the database (338,000). That's the same as dividing 1.1 million by 338,000" to yield the "chance that the search would link an innocent person to the crime." Say that the database had 2.2 million profiles; under that calculation, the chance that the search would link an innocent person to the crime would be 200%, obviously nonsensical.

Now I think that the multiplication might be someone's oversimplification of a different formula — the chance that a database of 338,000 people would yield a match with an innocent person, when there's a 1/1,100,000 chance that any particular innocent person would have the DNA markers. That formula is 1-(1-1/1,100,000)^338,000, which yields 26.5%, rather than 338,000/1,100,000 (30.7%). Nor is it an accident that the two percentages are close; when n is relatively low compared to a, 1-(1-1/a)^n is relatively close to n/a.

But even taking account of this oversimplification, this strikes me as mistaken. 1-(1-1/1,100,000)^380,000 is the probability that, if the rapist is not in the database, a database search would still come up with someone (who would then be innocent, since by hypothesis the rapist is not in the database). It is not "the probability that the database search had hit upon an innocent person."

Here's one way of seeing this: Let's say that the prosecution comes up with a vast amount of other evidence against Pickett — he admitted the crime in a letter to a friend; items left at the murder site are eventually tied to him; and more. He would still, though, have been found through a search of a 338,000-item DNA database, looking for a DNA profile that is possessed by 1/1,100,000 of the population — and under the article's assertion, "the probability that the database search had hit upon an innocent person" would still have been "1 in 3."

Despite all the other evidence that the police would have found, and even if the prosecutors didn't introduce the DNA evidence, there would be, under the article's description, a 1/3 chance that the search had hit upon an innocent person (Pickett), and thus a 1/3 chance that Pickett was innocent, presumably more than enough for an acquittal. That can't, of course, be right. But that just reflects the fact that 1/3 is not "the probability that the database search had hit upon an innocent person." It's the probability that a search would have come up with someone innocent if the rapist wasn't in the database.

So, as I said, I'm not sure what juries should be told about these statistics, and how to weigh them together with the other probative evidence that's introduced at trial. But it seems to me that both of the options given in the quote — "the chance [that although DNA at the crime scene happened to match [defendant's], it belonged to someone else] was 1 in 1.1 million" and "the probability that the database search had hit upon an innocent person ... was 1 in 3" — are incorrect.


Is everyone Burkean now?

The exchanges Ilya, Orin and I have had about Burkeanism have helped to sharpen where the real disagreements are. There is more common ground than at first it seemed, though after Ilya's latest post I do see more clearly where we may differ.

It turns out that Ilya's view of "coercively imposed traditions" — practices to which little if any respect should be given — is much broader than mine. If I understand him correctly, for Ilya it means any tradition that may be viewed as oppressive (unfair?) to a group of people, even if democratically arrived at and even if subject to critique and revision over time. When I refer to practices imposed by authoritarian societies, which never grew from the common sentiments and culture of the people but are simply imposed by some dictator like Stalin or Hitler, I mean only that. If tradition is accorded no respect except when practically everyone agrees with it, and can be said to have assented to its continuance, then indeed it hasn't much force. Burke did not think that, and neither do I. The respect for tradition in Burkean thought is more robust.

Also, as against my claim that we should doubt our ability to impose beneficial reform, Ilya observes that "we must also doubt our ability to know when the status [quo] is really beneficial, and our ability to properly assess its costs and benefits." Here I think there is a real difference between Burkean and non-Burkean thought. As between doubts about the value of a longstanding practice and doubts about the expected benefits of changing it, the Burkean will resolve doubts in favor of the tradition. I don't think that's the case with many other approaches to policy and law, which seem much more sanguine about the prospects for change. Here, I think a Burkean would regard something called "status quo bias" as a good thing, not a bad one.

On the appropriateness of rapid change where there's gross injustice or great harm, the difference between a Burkean and non-Burkean approach would start with the willingness to see things as so wrong and harmful they must be changed immediately. I use this term to mean things like slavery, and comparably great evils, and not much else.

By contrast, as I tried to suggest in the case of laws against drug use, the very fact of near universal regulation, a longstanding practice of disapproval, and great concerns about unintended consequences, would lead a Burkean to think the case has not been made for an immediate and wholesale end to the war on drugs. It's obvious to a pure libertarian that the war on drugs must end and end now because it violates postulates of individual freedom, arrogates much coercive and intrusive power to the government, and has resulted in identifiable harms, but a Burkean would not analyze the problem the same way. Burkeans are not slow libertarians.

So for a Burkean there is a very broad range of traditions that should be accorded respect and a presumption in their favor and a very narrow range of historical cases where incremental change seems inadequate. Much as I would welcome everyone on board, I think that makes Burkeanism distinct from the methodolgy of many who advocate libertarianism, modern political liberalism, and indeed much right-wing ideology.


Red Sox-Yankees Rivalry Taken Too Far:

I'm a big Red Sox fan and definitely enjoy the Red Sox-Yankees rivalry. This case, however, shows that even the best sports rivalries can be taken too far.

UPDATE: More details available here.


Getting Money or Sex by False Statements:

The "rape by fraud" issue noted below does raise some interesting conceptual questions, for instance "Why do we make it a crime to take property when consent is gotten through fraud, but not to get sex when consent is gotten through fraud"? But while I think the "why" is interesting and important, the bottom line strikes me as clear: There is likely to be much more injustice and suffering if the criminal law were to police a vast range of lies and concealments in sexual relationships than if the criminal law stayed out of this.

Moreover, I should note that when people get property by lies that yield a marriage, that may well not be criminal or even civilly actionable. Consider, for instance, Askew v. Askew, 22 Cal. App. 4th 942 (1994), where a court rejected a man's claim that his wife had defrauded him by marrying him without ever having loved him or been attracted to him:

Ronald testified there were “numerous discussions” with Bonnette about “passion, desire or physical attraction” before their marriage. Bonnette said (in Ronald's words) “that she loved me. That she had this lust, this passion, this desire. That I could trust her. That I could believe in her.” Later he testified that Bonnette “described the passion as being this-this-this-this-love. This-this sexual desire. This-this strong commitment. This great endorsement for me as a person.” She also said, “I am honest with you. I will always be honest with you. You can trust me. You can believe in me. I will not lie to you.” Many times Ronald asked her to tell him “if there's anything I should know about our marriage, or anything about our relationship, be honest with me. Tell me. Tell me before the marriage.” Bonnette said there was “nothing” Ronald “need[ed] to know.”

Ronald then testified he relied on these statements in transferring the five properties “into [his and] her name [jointly].” But he would not have transferred the properties if he had “known the truth” (referring to the revelations from the 1991 counseling session) that he knew “now” — i.e., that she really had no desire for him “physically” or “sexually,” that she had no “passion” for him prior to the marriage, or “during” the marriage....

Bonnette was called as part of Ronald's case-in-chief. She admitted that she did not have sexual desire for Ronald prior to or during the marriage, even though she “may,” at one point “early on in the relationship,” have told Ronald that the two of them had a “very satisfying” sexual relationship. Ronald also called a friend of the Askews who testified that in about 1989 while at dinner at a local restaurant Bonnette told her that she did not love Ronald when they first got married.

Had this been a normal commercial relationship and the misrepresentations had been about ordinary commercial matters, the conduct likely would have constituted actionable fraud (and perhaps even criminal fraud). But the court read the state statutes abolishing the breach of promise of marriage and similar causes of action broadly:

At this point the policy behind the anti-heart-balm statutes bears some elaboration. Plainly, these statutes not only preclude certain “old fashioned” causes of action, but also embody a basic reluctance on the part of both the Legislature and the judiciary to allow recovery for promises of love. This reluctance stems, no doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in courts of law. Using the courts to distinguish “between a false statement of one's feelings and a change in those feelings” presents, in Judge Posner's phrase, “exquisitely difficult” problems of proof....

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....

Seems quite right to me — and imagine what would happen if people could sue not just over "I love you" marriage fraud, but also "She told me I was only her second lover" marriage fraud, or similar forms of fraud as to nonmarital sexual relationships. Or (to return to the preceding post) imagine such behavior could be made into a crime, either on the theory that the lie led to a transfer of property in the marriage or the love affair, or that it led to the sex in the first place.

Related Posts (on one page):

  1. Getting Money or Sex by False Statements:
  2. Cheating on One's Lover = Future Felony in Massachusetts?

Cheating on One's Lover = Future Felony in Massachusetts?

That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.

I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.

The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

UPDATE: Commenter Arkady hints at another hypothetical: Woman fakes orgasms, or more broadly tells the man that he's a great lover. Man says that he wouldn't have continued having sex with her if he'd known that she wasn't having orgasms -- or that he wouldn't have continued having sex with her if he'd known that she was willing to fake something like that, or to lie about his prowess. A prosecutor claims that a reasonable person would indeed have reacted the way this man says he would have reacted. The jury, or the judge deciding on a motion to dismiss, is supported to decide whether a reasonable person (not the average person, mind you, but a reasonable person) would have reacted this way. How on earth is a jury or a judge to make that legal decision?

Related Posts (on one page):

  1. Getting Money or Sex by False Statements:
  2. Cheating on One's Lover = Future Felony in Massachusetts?

Dale Carpenter's Version of Burkean Conservatism:

I agree with much of what Dale Carpenter says in outlining his insightful version of Burkean conservatism in response to my critiques of it (see here and here). However, I fear that not much is left of the Burkean presumptions in favor of tradition and against rapid change after Dale's qualifications. What remains can be embraced by adherents of most other ideologies, not just Burkean conservatives.

I. The Value of Tradition.

Dale concedes that "coercively imposed" traditions enforced from the "top down," as in "authoritarian societies," don't deserve any special deference. This is a very important concession, since Burkean conservative arguments have often been used to defend the maintenance of authoritarian or even totalitarian regimes. I would add, merely, that even in democratic societies, there are many coercively imposed policies as well. For example, the oppression of politically weak minorities by biased majorities and harmful policies imposed through the machinations of powerful interest groups. The exact boundary between coercion and consent is one that can be debated. But this concession surely eliminates a large part of the presumption in favor of tradition usually advanced by Burkean conservatives.

Dale also argues that "[t]he more widely a tradition is observed and the longer it has lasted, the more trustworthy it is to the Burkean and the more a presumption in its favor should be indulged." There may be some validity to this point. However, it is in tension with Dale's concession on coercively imposed traditions. Some of the most longlasting and widely observed traditions got that way precisely because of the enormous amount of coercion used to keep them in place. Slavery and the inequality of women (both near-universal traditions until the 19th century) are excellent examples. I would also argue that longlasting traditions are particularly prone to engaging our natural biases in favor of the status quo. Dale "doubts our ability to know when a change really will be beneficial, when the risks of change will outweigh the expected benefits, and whether we will be able to impose it competently." There is some merit to this point too. But we must also doubt our ability to know when the status quo is really beneficial, and our ability to properly assess its costs and benefits. As a general rule, social science research suggests that we are more likely to overvalue the benefits of the status quo then undervalue them.

Once we take proper account of coercively imposed traditions and status quo bias, I'm not sure much is left of the Burkean presumption in favor of tradition that adherents of numerous other ideologies can't also accept.

II. Rapid Change and Gradualism.

Dale also wants to maintain the Burkean presumption in favor of gradualism as against rapid change. But here too, he carves out major exceptions. For example, he concedes that "incrementalism is not a good answer in cases of gross injustice and irreparable and great harm." That is a major concession, because now the real action in most debates about change shifts to the question of whether there is "gross injustice" or "irreparable and great harm." For example, Dale argues that we should move slowly in abolishing the War on Drugs, if at all. In my view, that war causes both gross injustice and irreparable and great harm and so should be abolished relatively quickly. The presumption against rapid change will not play any significant role in the debate between us on this subject. A large proportion of the cases where Burkean conservative arguments are deployed involve situations where one can credibly argue that the status quo causes gross injustice, irreparable harm, or both.

Dale also argues that gradualism isn't a good approach in "emergent circumstances," by which I think he means emergencies. This further narrows the scope of any presumption in favor of gradualism.

Dale contends that change should only be adopted on the basis of "relevant experience" rather than "abstract theorizing." At that level of - yes - abstraction, it's hard to disagree. Who could be against taking account of "relevant experience"? Unfortunately, however, even the most relevant possible experience doesn't analyze itself. We need "theorizing" to determine what aspects of experience are relevant and how to weigh that evidence.

Finally, Dale notes that some of the changes I described as "rapid" (e.g. - the abolition of slavery) actually resulted from ideas and criticisms developed over a long period of time. I agree. But I think we have to distinguish between the development of ideas behind a change and the implementation of the change itself. It is the presumption in favor of gradualism on the latter that I have been criticizing. Hardly any major change is likely to be imposed immediately after the ideas behind it was first invented. Even the French Revolution - the classic Burkean rapid change bogey - was the product of Enlightenment ideas that had developed over the course of more than a century. Soviet communism, another paradigmatic example of harmful rapid change, was the end result of at least 100 years of socialist thought and criticism of capitalism. If the period of time during which the ideas behind change germinate counts in determining its speed, then virtually any major change can be considered gradual.

Once we purge Burkean conservatism of various weaknesses as Dale has done, it becomes much more attractive. Unfortunately, however, these modifications also empty Burkeanism of most of its distinctive content. Even a fairly radical libertarian like me can endorse most of what remains. But if I too can be a Burkean conservative in Dale's sense, that strongly suggests that the term has been hollowed out and lost most of its utility. That said, I don't object to Dale using the term to describe his ideas. I just think that his version of Burkean conservatism has much less distinctiveness than the package of ideas that usually go by that name.


Mildred Loving, R.I.P.:

The woman who challenged Virginia's anti-miscegenation law, resulting in the most appropriately named case in Supreme Court history (Loving v. Virginia), died Friday. Story here.


Gov. Strickland Asks Dann to Resign:

This morning Ohio Governor Ted Strickland sent a letter to embattled Ohio AG Marc Dann asking him to resign. The letter was also signed by the four other elected Democrats holding statewide office, the Democratic leadership in the Ohio legislature, and the Chair of the Ohio Democratic Party. Yet as the Columbus Dispatch reports, Dann is resisting these calls to resign, prompting speculation that he could actually be impeached and removed from office.

The fact that the state's Democratic Party leadership is united is seeking to see Dann resign is notable because if Dann were to step down now, his successor would have to stand for reelection this November. If he can hold on until October, on the other hand, his successor would finish out the balance of his term. Apparently the Democratic Party leadership believes the risk of losing the AG office this fall is outweighed by the nature of Dann's misconduct and its consequences for the AG's office as an institution. (Of course, concerns about the political consequences of keeping Dann around through this fall's elections could play a role too.) In any event, I think it's clear at this point that Dann's days are numbered.

In related news, Marc Dann had been scheduled to be the speaker at the Case Western Reserve University School of Law's commencement. He is an alum, and the law school has a tradition of featuring one of our own on that day. This morning, however, I learned that Dann had elected to "withdraw" as the commencement speaker. (ATL has more here.) Whether he did this on his own initiative or at the request of our Dean, it is all to the good. Now that he's on a roll, Dann should take the opportunity to "withdraw" from his current office as well.


Exam question. Advanced topics in firearms:

"The Colt revolver was:
a. The single most important development in firearms technology.
b. The single most important development in personal defense technology, at least for a small person's ability to defend herself against a group of larger assailants."

Agree or disagree with item a or item b, or both. If you disagree, please cite specific examples of more important development(s), and why you believe they are more important.

Impressively erudite answers in the comments! For further refinement:

For a., only consider firearms, not ammunition. This eliminates the (persuasive) argument in favor of the breech-loading metallic cartridge. It leaves an argument in favor of the machine gun--although one could counter-argue that the Gatling Gun was just a very sophisticated extrapolation of the revolver. To which one could sur-reply that the Gatling didn't change things all that much, in practice, but the Maxim Gun did, and the Maxim was in no way derivative of the revolver.

On b., only consider weapons, and not other technologies (such as telephones).


Dann Subject to Seven Investigations?

Think Ohio AG Marc Dann is only in trouble for his affair and Animal House antics? Not so. The Columbus Dispatch reports that Dann's office is undergoing seven investigations of one sort or another, a number that could increase. In addition to the various inquiries about the sexual-harassment complaints filed against one of Dann's subordinates (and former housemates), investigators are looking into his office's use of state credit cards, computers, and vehicles, and state Republicans may file an Ohio Election Commission complaint alleging misuse of campaign funds to pay for Dann's condo.

Here's more from the Dispatch:

Mark Collins, one of the attorneys for sexual-harassment complainants Cindy Stankoski and Vanessa Stout, said Dann's office has made it easy for his team.

"The internal investigation found a hostile work environment so pervasive, and with the type of lewd and ridiculous behavior, that they made our case for us."

Collins said Dann's last-minute change in his sworn statement about whether Jessica Utovich, his scheduler to whom he was romantically linked, stayed overnight at his Dublin-area condo probably doesn't amount to perjury under oath, as Republican officials have suggested.

However, he said, the disciplinary counsel of the Ohio Supreme Court could act to look into whether any of Dann's actions violated the code of professional conduct for lawyers. Dann was cited by the counsel in 2002 for failing to adequately represent a client in a divorce case.

Meanwhile yesterday, more Ohio newspapers joined the call for Dann's resignation. The list now includes The Dispatch, The (Cleveland) Plain Dealer, Dayton Daily News, The Cincinnati Enquirer, The (Canton) Repository, The Lima News, (Mansfield) News Journal, The (Newark) Advocate and The (Warren) Tribune-Chronicle, former employer of Dann's wife. The (Youngstown) Vindicator harshly criticized Dann yesterday but said he deserves a second chance.

In addition, Mary Jo Kilroy, a congressional candidate in central Ohio's 15th District and a Franklin County commissioner, called for her fellow Democrat to resign.

"I am appalled that those in power would abuse their authority in such a shameful way," she said in a statement.


The Tension Between Justice and Privileged Communications:

In yesterday's NYT, Adam Liptak had an interesting column about what happens when lawyer-client privilege results in wrongful convictions.

A lawyer’s broad duty to keep clients’ confidences is the bedrock on which the justice system is built, [most legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one.

“Lawyers are not undercover informants,” said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.

The analysis does bend a bit, in two ways, in cases involving death.

Legal ethics rules vary from state to state, but many allow disclosure of client confidences to prevent certain death or substantial bodily harm. That means, several legal ethics experts said, that lawyers may break a client’s confidence to stop an execution, but not to free an innocent prisoner. Massachusetts seems to be alone in allowing lawyers to reveal secrets “to prevent the wrongful execution or incarceration of another.”

And there is debate over how a client’s death affects a lawyer’s obligation to keep the client’s secrets. Most lawyers and courts say the obligation lives on. But it can be hard to live with the consequences.

In one case the story recounts, an attorney revealed his client's privileged confession, after his client's death, in an effort to free the man wrongly convicted of the crime -- and may face sanctions as a result.


Defending Burkeanism:

My co-conspirator Ilya criticizes some modern Burkeans for over-valuing tradition and under-valuing the possible benefits of rapid change. Orin offers some responses here that seem right to me, but that don't persuade Ilya. Since I doubt Burkeans want to over-value or under-value anything (who would?), I am not yet sure there is genuine or very deep disagreement here.

A Burkean ought to guard against a slavish and mystical adherence to tradition for the sake of tradition and ought to recognize that there are some circumstances in which incremental change isn’t good enough. But as I think Ilya would agree, this does not mean that everything is always up for grabs, to be eliminated as soon as someone gets the better of the argument. The general Burkean respect for tradition and presumption for incrementalism can still be defended.

First, on valuing tradition, it’s worth remembering why and to what extent tradition is valuable. As Ilya acknowledges, Burkeans do not think traditions should be immune to critique and revision. In fact, the fact that present practices are often the organic and evolved product of a process of sustained critique, revision, and adaptation over time is what makes them valuable. To the extent they have been immunized from such critique and have simply been imposed in top-down fashion, as in authoritarian societies, they are surely much less valuable. If this is what Ilya means by “coercively imposed tradition” then we agree it merits little if any deference or presumption of validity. And the person who resists even thinking critically about existing practices undermines the very thing that has made those practices worth defending.

Further, respect for tradition is a continuum. The more widely a tradition is observed and the longer it has lasted, the more trustworthy it is to the Burkean and the more a presumption in its favor should be indulged. Everyone, I suppose, wants beneficial change (however defined), but the Burkean doubts our ability to know when a change really will be beneficial, when the risks of change will outweigh the expected benefits, and whether we will be able to impose it competently. For the Burkean, every change involves some certain cost in exchange for doubtful benefit, which is why we usually presume against it. Finally, even where change is warranted, the Burkean believes it ought to be based as much as possible on relevant experience and not on abstract theorizing about reform. I am not sure Ilya disagrees with these points, either.

Consider an example. I doubt that a Martian, charged with setting up a system of criminal justice in which the guilty are to be punished and the innocent are to be set free, but having no knowledge of our history or practices, would come up with our system. Some features of it, perhaps, but not all. What’s the magic in juries, in the number 12, or in a requirement that the verdict be unanimous? There are many critiques of the jury system from both left and right. It is not a universal practice. It has many disadvantages and is inefficient. Juries are sometimes irrational and prone to many cognitive biases and errors. But because of its deep roots in our legal history and tradition, the Burkean would be very reluctant to give up the jury system in criminal trials without a very strong showing, based on relevant experience if possible, that a proposed replacement would be better and that we could safely and competently transition to it. Hayek and Oakeshott were clear and persuasive about how many present practices reflect, incorporate, and encode a degree of learning and experience that we may not grasp and that will be lost if we abandon them. We are not the flies of summer born into a new world every year.

Ilya rightly points to traditions and longstanding practices that we now universally recognize as oppressive and unjust – things like slavery and denying women the right to vote. But these practices were themselves changed, one could plausibly argue, through a process of critique and revision over time building on counter-traditions and experience.

Consider slavery, often offered as the most persuasive case of sudden change. A strain of American thought building on premises in the Declaration of Independence grew slowly to resist slavery. The practice was ended in many countries around the world before it was ended in this country. It was resisted with growing ferocity in the United States through ending the Atlantic slave trade and through opposition to its expansion into new states. An abolitionist political movement grew. These developments and many others laid the foundation for the violent end of slavery in the Civil War.

The civil rights movement, too, was a decades-long phenomenon that began long before Brown, and appealed to ideals dating back to the Founding and before. Women’s suffrage was first brought to the country through incremental state-by-state adoption, allowing experience and evidence about effects to accumulate, until it was finally made constitutional law by amendment in 1920. A similar story can be told about gradually increasing tolerance and respect for gay people over the past half century. Even gay marriage, which seems like such a radical and novel idea to many people, has in fact been made possible only by what Justice Scalia might call the “piecemeal deterioration” (see his dissent in Romer v. Evans) of traditional moral objections to homosexuality and by modest legal reforms over the span of several decades.

The strong objection, I suspect, might be that although many unjust practices have ended only gradually, they should have been ended much more quickly. So what if it took decades to end racial segregation? It should have been ended immediately. Yes, Dr. King quoted the Founders, but he objected passionately when well-meaning Southerners advised him, “Go slow now.”

That leads to Ilya’s second critique of Burkeanism: that it tends to under-value the benefits of rapid change. The most committed Burkean, and I think Burke himself, would agree that gradualism is not a satisfactory answer in at least the following two kinds of cases.

First, proceeding slowly and incrementally is often not the best answer in emergent circumstances. If the house is burning down, you douse the fire; you don’t moisten it, observe the flame, and then spritz it some more. Wars and other national emergencies often call for quick and energetic responses, not gradual ones.

Second, incrementalism is not a good answer in cases of gross injustice and irreparable and great harm (leaving to one side the large question of whether we can agree on what counts as “gross injustice” and “great harm”). If the city council has long ordered that ten innocent citizens be hanged in the town square every day at sundown, you don’t propose that only nine be hanged the day after tomorrow, only eight the day after that, seven the next, and so on. You insist the practice stop immediately. (Unless the choice really is to stop it slowly or not at all.) Burke himself was a harsh critic of many of the injustices of his day, like the “popery” laws persecuting Irish Catholics and the practice of punishing sodomites in the pillory, where citizens abused them.

This second category calls for hard judgments about what is so unjust and so harmful that it must be undone as quickly as possible, even if it is a longstanding practice, and even at the risk that sudden change will itself produce harms. Just as no judicial philosophy can survive modern scrutiny unless it finds some rationale for the result in Brown, no political program or philosophy can survive modern scrutiny that would tolerate even a day of slavery.

But lots of current disputes are much harder, or at least seem so now. The little libertarian in me objects to laws against prostitution and drug use, but the big Burkean in me looks around the world and sees almost universal regulation, finds longstanding restrictions in this country, worries about the unintended consequences in broken lives and more addiction, and wants to start – if I’m persuaded to start at all — incrementally with heavily regulated brothels and medicinal marijuana in a few isolated places. The ardent advocate of gay equality in me wants same-sex marriage tomorrow in every corner of the country, by judicial decree if necessary, but the incremental and cautious reformer in me wants more evidence about its effects in the places it’s being tried and proposes intermediate steps to meet only the most pressing needs of gay families.

The Burkean runs the risk that history will judge him very harshly for this caution. Some degree of injustice will be tolerated longer than, in hindsight, it should have been. But the Burkean recognizes that there are risks to incaution as well. And he thinks caution about changes in longstanding practices and traditions in particular is, on the whole, the better bet.


Is the Criminal Justice System Racist?

Heather MacDonald has this great article in the City Journal, persuasively debunking the myth that high black incarceration rates result from racial discrimination. She reviews the available empirical evidence, which finds no evidence of systemic racism. Instead, the studies show that a disproportionate number of African-Americans are in prison because they have committed a disproportionate number of serious crimes.

It is a tragedy that so many minorities are languishing in prison. But the "solution" that the Left often proposes of targeting racist cops or racist prosecutors is, as MacDonald demonstrates, wide of the mark. Instead, we need to look at the causes of higher rates of minority offending.


Debating Burkean Conservatism:

In his most recent post, Orin takes issue with my critique of Burkean conservatism. He argues that we should have a presumption in favor of tradition and also in favor of gradual rather than rapid change. He makes some thoughtful points; but in the end I don't feel persuaded. Just to clarify, however, I don't think that there should be any general presumption against tradition or gradualism. I merely oppose setting up a presumption in their favor.

I. Should we have a presumption in favor of tradition?

Orin argues that we should have a presumption in favor of tradition because otherwise we will tend to overestimate the problems of the status quo and underestimate its benefits:

In my view, it is smart to start with a presumption of validity of existing practice because it is human nature that "the squeaky wheel gets the grease." Problems with the status quo are visible, so they get our attention, while the benefits of the status quo often blend in to the background. I think this creates a consistent bias in how we assess the costs and benefits of change. When we look to alter the status quo, we often dwell so much on the improvements we anticipate that we miss the costs that may accompany it.

Obviously, some people are biased in favor of change. Orin would probably say that I'm one of them! If so, I'm an atypical case. Bias in favor of the status quo is far more common. Scholars even have a clever, original name for it: status quo bias. And there is considerable evidence documenting its existence (see, e.g., here). On the other hand, I'm not aware of any scholarly literature documenting the existence of a comparably widespread bias in favor of change. The literature on the closely related "endowment effect" also suggests that most people are more worried about losing what they have than about maximizing potential future gains.

Moreover, as I argued in my original post, people often take the validity of longstanding traditions for granted, without even attempting to examine their costs and benefits. The average white American in, say 1920, didn't take time to carefully weigh the costs and benefits of racial segregation. He most likely simply assumed that this longstanding practice was a good one.

Finally, as also discussed in my last post, there is a category of traditions that are systematically likely to cause more harm than good: traditions that arose because of coercive imposition by one group on others. These kinds of traditions may still turn out to be beneficial in some cases. But we should at least view them with some presumptive suspicion. I do agree, as noted in the earlier post, that there may be some case for a presumption in favor of traditions that arose through voluntary relationships. However, it is significant that most of the traditions that have historically caused debates between Burkean conservatives and their critics are of the coercive variety.

II. Rapid Change vs. Gradualism.

Orin argues that gradual change is better than rapid because "If we change gradually, we can test whether our sense of the costs and benefits are accurate. We can get a feel for whether our ideas are right or if we're missing something, and we can use our experience to learn and tailor future changes." In some cases this will be true. In others, it won't be so easy to control and "tailor" the pace of change. On the other hand, as I noted in my previous post, there are several systematic advantages of rapid change as well.

Orin also claims that my examples of beneficial rapid change may be unrepresentative. They may indeed be so, though I tried to explain why these examples rest on more general advantages of rapid change. In any event, I don't believe that either gradual or rapid change is generally superior to the alternative. As I tried to explain in the previous post, whether one is better than the other will vary from case to case. Sometimes the advantages of gradualism will outweigh those of speed and sometimes not. We should not start with a presumption in favor of either.


A Defense Of Burkean Conservatism: It won't surprise readers of the recent Ilya-Orin exchanges on constitutional interpretation that Ilya and I sharply disagree on the cluster of ideas generally grouped together as "Burkean conservatism." Indeed, I have often thought that our exchanges on constitutional interpretation were really just an application of our broader disagreement on Burke's ideas (or rather, what passes today as Burke's ideas — I agree with Ilya that we should accept the label as a given). Given that, I want to respond to Ilya's post and explain why I disagree with him on the alleged pitfalls of Burkean conservatism. Specifically, I want to make the case for presumptively valuing tradition and for presumptively favoring gradual change.

  First, the case for valuing tradition. In my view, it is smart to start with a presumption of validity of existing practice because it is human nature that "the squeaky wheel gets the grease." Problems with the status quo are visible, so they get our attention, while the benefits of the status quo often blend in to the background. I think this creates a consistent bias in how we assess the costs and benefits of change. When we look to alter the status quo, we often dwell so much on the improvements we anticipate that we miss the costs that may accompany it. This is sometimes called "the law of unintended consequences," but I think it's more just a failure to prospectively assess costs of change in the same way that we prospectively assess benefits.

  Valuing tradition is a smart counterweight that protects against this common human error. In my view, valuing tradition has nothing to do with blindly deferring to something just because it has been around for a while. Instead, it means looking carefully at the functions that the tradition serves and appreciating those functions even if they are not "squeaky wheels." My sense is that in most cases this will tend to facilitate a more accurate and realistic sense of costs and benefits of prospective reforms.

  The case for gradual change is related to the case for valuing tradition. If we change gradually, we can test whether our sense of the costs and benefits are accurate. We can get a feel for whether our ideas are right or if we're missing something, and we can use our experience to learn and tailor future changes. This isn't always possible because some problems are non-linear; a small step may not correlate to a small version of the change that a big step would produce. But I think it works often enough that it's a smart strategy to use as a default.

  My difficulty with Ilya's opposing case is that it is based heavily on a few specific examples, and yet we don't know if his examples are representative. Without question, we can look to examples of extremely bad things in the past and say it would have been better to end them quickly rather than slowly. But we can also look to examples of extremely bad proposals for change in the past and say it would have been better to try them slowly or not at all rather than to have embraced them. Because choosing the example picks the lesson, I tend to think that the anecdotal approach doesn't get us very far. One side picks slavery as the lead example and the other side picks communism, and neither can convince the other that their example is more illuminating.

Sunday, May 4, 2008

Sunday Song Lyric: Is there anything Marc Dann can do to save his career at this point? What about a really good apology? Perhaps. There are some really good apology songs out there, but none of the ones I could think of seem to fit the situation. Here's one anyway -- a song by a great band I haven't listened to in a while: Husker Du's "I Apologize."
All these crazy mixed up lies
Floating all around
Making these assumptions brings me down
And you get tight-lipped, how do I know what you think?

Is it something I said when I lost my mind?
Temper too quick, makes me blind

I apologize...
Said I'm sorry, now it's your turn,
Can you look me in the eyes and apologize?
The full lyrics are here.

I doubt this song would work for Dann. Is there another that would give him a better chance?


Pitfalls of Burkean Conservatism:

In this post, I am going to discuss two major shortcomings of Burkean conservatism: its excessive deference to tradition and its failure to recognize that rapid change is often preferable to a more gradualistic approach. I know that there is a controversy among Burke experts about the extent to which Edmund Burke himself actually held these views. So my objections are principally aimed at modern exponents of what is usually called "Burkean" conservatism, irrespective of whether Burke himself would have endorsed their views (e.g. Jonathan Rauch in the article on McCain that we have been discussing).

I. Overvaluing Tradition.

Rauch identifies "respect [for] long-standing customs and institutions" and reluctance to override tradition as key attributes of Burkean conservatism. Burkeans do not claim that tradition should be maintained at all costs; but they do accord it a high degree of deference and a presumption of validity. The obvious objection to this idea is that there have been many harmful and oppressive traditions, including very longstanding ones. Slavery, racism, sexism, authoritarian government, and - in the former communist world - socialism, are obvious examples. But the issue is not just that there are some very bad traditions. Burkeans could counter this point by arguing that, on balance, most traditions are good. The more fundamental problem is that there is a systematic category of traditions that are likely to be harmful because they are the result of coercion and imposition by one group (usually a dominant elite) on others. Most of the harmful traditions that I listed above fall into this category.

Coercively imposed traditions do not deserve any deference or presumption of their validity. It may sometimes be difficult or impossible to change them. But there is no reason to assume that they have any inherent value, as Burkean conservatives too often do. And it is important to recognize that Burkean appeals to tradition were in fact used to justify the continuation of slavery, racism, sexism, political authoritarianism, and communism when efforts to abolish these institutions got underway.

Burkeans such as co-blogger Dale Carpenter correctly point out that we sometimes fail to "fully appreciate the wisdom of longstanding practices and institutions." But this point cuts both ways: we also often fail to fully appreciate the harm they cause. And the latter bias is likely to be more common than the former. Most people have a strong tendency to take the validity of their longstanding practices for granted without serious questioning. As Dale knows better than I, until recently the vast majority of heterosexuals took the validity of homophobia for granted and grossly underestimated the harm it causes. Many hold such views even today.

Burkeans are probably on firmer ground in urging respect for traditions that emerge from voluntary interactions, such as business arrangements between willing buyers and sellers. Unfortunately, however, all too many Burkean conservatives have not limited their deference to tradition to such cases.

To make the point completely clear, I am not arguing that tradition, even coercively imposed tradition, is always harmful. I merely suggest that coercively imposed traditions deserve no presumption of validity. Indeed, we should view them with great suspicion unless and until a compelling justification is offered.

II. Undervaluing the Potential Benefits of Rapid Change.

Rauch also identifies opposition to "radical change" as a key attribute of Burkean conservatism. This view, I think, fails to recognize the potential advantages of rapid change.

There are many historical examples where the rapid elimination of oppressive traditions and institutions turned out to be wiser than a gradualistic approach. Slavery in the United States and serfdom in Russia were both eliminated very rapidly in the 1860s. This was almost certainly better than a gradual elimination over a period of several decades (as urged by some moderate abolitionists), which would have consigned several more generations to bondage. In the 1960s, Congress' rapid dismantling segregation in the South worked more effectively and caused less violence and "massive resistance" than the gradualistic approach the Supreme Court pursued in the 1950s. The rapid destruction of dictatorship and swift transition to liberal democracy in countries such as Germany, Japan, Italy, Grenada, and Panama has worked quite well. Most recently, those post-communist nations that made a rapid and complete transition from communism (e.g. - Poland, the Czech Republic, and Estonia) have done far better than those such as Russia, Belarus, and Ukraine, which adopted a more gradualistic approach - one which has led to lower economic growth and a resurgence of authoritarianism.

There are two systematic lessons to be learned from these cases. First, rapid change has the advantage of making it more difficult for supporters of the oppressive status quo to mobilize to prevent reform. For example, the Supreme Court's initial gradualistic approach to desegregation gave the southern states time and opportunity to pursue their strategy of "massive resistance" and gave groups such as the Ku Klux Klan the opportunity to resist with violence. In Russia, the failure to fully dismantle the communist power structure enabled the KGB and other communist institutions to retain some of their power and eventually install one of their own (Vladimir Putin) as president, thereby reversing some of the gains of the 1990s. In addition to denying them time for mobilization and counteraction, rapid change can also destroy some of the power structures these reactionaries need to make their resistance effective.

Second, to the extent that the tradition at issue harmful or oppressive, a gradualistic approach necessarily perpetuates the suffering it causes for a longer time than gradual change would. For example, a gradualistic approach to the abolition of slavery necessarily means that at least one additional generation will remain in bondage.

These potential advantages of rapid change are sometimes outweighed by its costs. I do not mean to endorse any general principle that rapid change is always superior. However, I do think that Burkean conservatives are wrong to argue for a general presumption in favor of gradualism. Whether rapid change is preferable to a gradualist approach will vary from case to case. It depends on how bad the status quo is, how much opposition has to be overcome, how effective reactionaries will be in taking advantage of the respite granted by gradualism, and other such factors.

Burkean conservatism isn't always wrong. But its advocates do tend to overvalue tradition and undervalue the potential advantages of rapid change.

UPDATE: In response to various comments, I suppose I should clarify that I am opposed to either gradual or rapid change for the worse. Thus, there is no need to point out that, e.g., communists supported rapid changes that I would consider harmful. Adherents of virtually any ideology oppose what they consider to be change in the wrong direction. The distinctive aspect of Burkean conservatism is the strong preference for gradualism even with respect to beneficial change. That is the tendency I seek to criticize. I do not believe that change as such is either good or bad. It depends on the direction of the change and how it is implemented.

UPDATE #2: This response to my argument claims that Edmund Burke didn't hold the views I attribute to Burkean conservatives. Perhaps not. But as I noted in the original post, I am criticizing modern writers who consider themselves Burkean conservatives. I take no position on the question of whether they interpret Burke's own views correctly. And these writers do place a strong emphasis on deference to tradition and opposition to rapid change - even if the change is in a beneficial direction.


McCain and Burkeanism:

Burkeanism isn't so much a philosophy as it is an attitude or disposition. As I see it, Burkeanism is not primarily about a commitment to any particular set of policy outcomes, though respecting tradition and continuity will tend to confine one's choices about policy in the short- and medium-term. Instead, Burkeanism suggests great humility about our capacity to effectuate significant change, distrusts a priori reasoning and abstraction, doubts our ability to fully appreciate the wisdom of longstanding practices and institutions, and worries a great deal about the unintended consequences of change. It isn't opposed to reform, of course, but is very cautious about it. Thus, the Burkean tends to favor incremental over convulsive change. For my brief description of Burkeanism (in the context of the debate over gay marriage), with relevant quotes from Burke, see this post.

Here is an example of what I mean by a Burkean attitude or disposition. I do not think there is a determinate answer to the question whether a Burkean, in 2003, should have supported the war in Iraq. But the reasons why one might have supported that war could be either Burkean or very un-Burkean. Supporting the war for reasons of national interest or security would have been defensible on Burkean grounds. Opposing the war for those same reasons would also have been defensible from a Burkean perspective, since ultimately the necessary judgments about the facts and the consequences of inaction were debatable. But supporting the war because one believed it would be possible by foreign invasion to "remake" Iraqi society, and "transform" the Middle East, would have been un-Burkean. Burkeanism is deeply hostile to the utopian concept of "nation building."

Further, the Burkean in one society will tend to have different policy preferences than the Burkean in another because his views will be shaped by his own society's customs, practices, traditions, and history. In this country, for example, the Burkean will be more committed to liberal and democratic values than to authoritarian and theocratic ones. When Burke expressed sympathy for the American rebellion, he did so on the grounds that the Crown had usurped the traditional rights of Americans as Englishmen.

Jon Rauch, always a thoughtful analyst, makes an interesting case in the Atlantic for John McCain's Burkeanism, at least as contrasted with many movement conservatives today. As Rauch argues, many people who call themselves conservatives are not very Burkean. Whether it's in the realm of foreign policy or judicial philosophy, they are too confident about their ends and too eager to use any means to have their way. They are too willing to ignore tradition and precedent, to be Burkean. They are too hard and pure. Right-wing ideology is not Burkeanism. McCain's legislative record demonstrates pretty clearly that he is no conservative ideologue, which is one reason so many of them have no patience for him.

Ilya correctly notes that some of McCain's political compromises have been necessary to get legislation passed, rather than an expression of what he really wanted. But compromise for a general conciliation is a Burkean move, and bowing to this kind of necessity is not a universally shared trait among today's conservatives. McCain was strongly criticized by movement conservatives, for example, for joining the Gang of 14 Senators who preempted a "nuclear" showdown in the Senate on judicial nominees that would have ended the longstanding practice of allowing filibusters. That was a Burkean moment for him, sharply criticized by those who wanted more radical and swift change.

Nevertheless, I am not sure whether McCain is really Burkean. The simple fact that he has taken particular policy positions doesn't answer the question. There is no Burkean tax plan.

The question of temperament, which Rauch does not discuss in his excellent Atlantic essay, is more important than any single policy position. What matters most to the question of whether McCain is Burkean, I think, is how he tends to approach public policy questions. Is it with caution and humility, with a preference for evolution rather than revolution? Or is it with a reformer's zeal, one who has an unshakeable goal in mind and will let nothing stand in the way?

On some issues and at some times, McCain has seemed the former. If memory serves, he supported the Iraq war on national-security grounds, not Wilsonian ones. On other matters, notably his enthusiasm for campaign finance regulations, he has seemed more the latter. If reports from some of his colleagues in the Senate are correct, McCain can be pretty arrogant and hotheaded. Those are not very Burkean traits. But if, at the end of the day, he's better described as patient and deliberate, there's reason to believe that he's closer to Burke than to Burke's critics.


A Pennsylvania Playoff?

Last night the Philadelphia Flyers finished off the top-seeded Montreal Canadiens. I'm still in shock they did it -- let alone in five games. If the Pittsburgh Penguins can beat the New York Rangers today, we'll have an all Pennsylvania playoff in the Eastern Conference finals.


Editorial Consensus Dann Must Go:

The chorus of voices calling on Ohio AG Marc Dann to resign is getting louder. Today's Cleveland Plain Dealer:

By his own actions and by those of the people he trusted the most, Dann has turned the attorney general's office into a laughingstock.

He has embarrassed the good people who work there.

He has embarrassed the governor whose coattails he rode into office, and their party.

He has embarrassed his wife and children, who did nothing to deserve this.

He has embarrassed the people who voted for him and those who depend on him.

Through his disfunction, he has given aid and comfort to those who would prey upon those Ohioans and their communities who need the state to stand up for them - and who had some reason to believe that under his stewardship, the attorney general's office was doing just that.

In short, Marc Dann has disgraced himself far more than he seems to realize. He has fallen so far, so fast, that it's impossible to see how he can recover, personally, politically or professionally.

That's why he needs to go. . . .

The honor of the attorney general's office and that of its 1,400 employees has been compromised by a handful of people who accompanied Dann to Columbus and composed his inner circle. He claims to have been unaware of what Gutierrez and Jennings were up to, even when they shared an apartment. He seems unable to fathom the message he sent to his agency by carrying on a not-terribly-secret affair with a young staffer. He seems to think that good intentions can offset a long string of serious errors and misjudgments.

No one in public life is perfect. But all must be accountable. . . .

From the Columbus Dispatch:

Ohio's attorney general must be able to provide leadership, command respect and exercise strong judgment. Marc Dann has failed miserably in all three and is not fit to serve.

Dann disgraced himself and his department, operating an office where the atmosphere was, in his words, "embarrassingly undignified."

That's an understatement. Dann, elected in November 2006 when Democrats swept four of five statewide offices, acknowledged at a news conference Friday that he had an affair with a subordinate while one of his lieutenants was sexually harassing two other attorney-general staffers. Yet another top aide tampered with the handling of the harassment complaints.

After the release of an in-house investigation Friday, two officials, General Services Director Anthony Gutierrez and Communications Director Leo Jennings III, were fired and a top adviser, Edgar C. Simpson, resigned.

The problem for Ohio's highest-ranking law enforcer is that problems caused by the three men are a direct result of Dann's bad judgment and lack of leadership. He knew the characters of his lieutenants when he hired them. Last year, he shared with Gutierrez and Jennings a Dublin-area condo where some of the sexual harassment occurred while he was there.

From the Cincinnati Enquirer:

The tone of an organization is set by its leader. By that criterion, Ohio Attorney General Marc Dann should resign.

On Friday Dann fired two top aides and forced the resignation of another because they violated the department's sex harassment policy. An hour later Dann acknowledged in a press conference that the standard for such misconduct had been modeled on his own behavior, as he had conducted an extramarital affair with a young female staffer. Yet Dann had the gall to say he would not step down because he was doing a "great" job as attorney general.

His hypocrisy is breathtaking. Dann was elected in 2006 as part of a Democratic sweep that promised to clean up state government from the taint of the scandal-plagued Taft years. His behavior is a betrayal of that promise and an embarrassment to the honorable people who serve in government.

Gov. Ted Strickland said he was shocked at the double standard Dann is exhibiting by staying on after firing his aides, but he stopped short of calling for Dann's resignation. Too bad. This is a moment when the governor should demand that Dann do what is right. . . .

There are those, including apparently Dann, who ask why a consensual extramarital affair is anyone else's business, much less a reason for him to leave office. But the issue is not whether Dann had an affair, but that he had an affair with someone who worked for him.

It is a legitimate question to ask whether he employed this woman at public expense because she was qualified or because she was his girlfriend. It also raises the specter of a boss using his position to obtain sexual favors, which is why such behavior is a violation of policy in most workplaces.

From the Akron Beacon-Journal:

Perhaps you're wondering after reviewing the fallout from the state attorney general's office, two firings of top aides, one resignation, the boss himself admitting a ''romantic relationship'' with an employee: What would an independent investigation have revealed?

Not that all of us haven't learned enough. Still, Marc Dann chose to keep the examination inside his office, handing the job to Ben Espy, a most capable attorney and a former state senator. An earlier version of Dann wouldn't have let such a dodge pass without yelping righteously and furiously. . . .

Dann hired his pal Anthony Gutierrez to run the maintenance, purchasing and mailroom operations. The Espy report describes no less than a manager out of control, pressuring women in the office for sexual activity, intimidating other workers by flaunting his connections to Dann, even suggesting that his family had mob connections.

Gutierrez mixed drinking with driving state vehicles (getting into wrecks). He owed thousands in back taxes at the time of his hiring. His escapade triggered the investigation. One evening, he brought a younger female colleague to the Dublin condo he shared with Dann and Leo Jennings, the attorney general's communications director. She drank too much, fell asleep and charges that she woke up with her pants unbuttoned and Gutierrez next to her.

Jennings joined Gutierrez in losing his job. The report stated that Jennings ''attempted to impede the investigation by attempting to persuade [assistant attorney general] Jennifer Urban to give false testimony under oath.''

Urban told Dann in a text message: ''I will not lie like Leo wants me to. . . . I love you and Tony and Leo, but not enough to get disbarred.''

How refreshing! Honor and duty in the attorney general's office. . . .

Must he go? Put a Republican in his place, and Marc Dann would demand a resignation, rushing past worthy accomplishments. That is the trap he set for himself: Will he be taken seriously?

Dann's hometown Youngstown Vindicator is the one voice calling for Dann to get a second chance — at least until an independent investigation is completed.

UPDATE: The Dispatch reports the first sexual harassment complaint was filed, and handled inappropriately, last October.

MONDAY MORNING UPDATE: I have just learned the good news that AG Marc Dann is withdrawing as the Case Western Reserve University School of Law's commencement speaker.