Saturday, August 2, 2008

Obama "Will Not Run for Anything in 2008":

I was reading a very interesting profile of Obama from the January 2005 Columbia College Today, and came across this:

As for speculation that he could be the country's first black president, Obama says that he will not run for anything in 2008. He is quick to temper high expectations and scrying [sic] about his lofty political future with quips about how he doesn’t yet know where the Senate bathrooms are, and how he'll be "sharpening pencils and scrubbing floors" for the first few years. "He says that the first thing is for him to learn to be a first-rate senator," says Jarrett, the finance committee chair. "If that leads to something else one day, fabulous. But first things first."

Politicians lie, or change their mind, about their ambitions every day, so I report this more for amusement than for the claim that it tells us anything about Obama.


Of Umpires and Judges:

As the posts in this thread suggest, Chief Justice Roberts' analogy between judges and umpires has many antecedents. Lawprof Eric Muller takes the prize for finding the earliest judge-umpire analogy so far, a 1912 district court decision.

Many people criticize the umpire-judge analogy because the rules of baseball are much clearer than those of constitutional law and give umpires less discretion than judges have. This criticism is, I think, overstated. Umpires exercise a great deal of discretion over the size of the strike zone, when to throw players and managers out of the game, and other important issues. As in legal theory, there are even broad philosophical disagreements as to the best method of umpiring. For example, some believe that the umpires should strictly enforce the rules as written (a position roughly analogous to textualism in legal interpretation). Others adhere to longstanding traditions that in some cases diverge from the letter of the rules (e.g. - the rule against catchers blocking the plate is often left unenforced); this is similar to precedent-based reasoning in law. There are also some umpire practices that seem analogous to "purpose-based" legal interpretation.

Where the judge-umpire analogy really breaks down is not in the realm of interpretative theory but in that of incentives. Unlike federal judges, baseball umpires don't have life tenure. Major League Baseball can fire them or discipline them if it determines they aren't doing a good job. MLB also has a lot of discretion in deciding which umpires will call which games (e.g. - picking only the best umpires to do the World Series). On the other hand, federal judges are extremely difficult to remove, and the political branches of government don't have much control over which judges will hear which cases - especially at the Supreme Court. Thus, unlike with umpires, it's much more important to pick the right people for the job from the start. If you pick the wrong ones, they're likely to plague you for decades to come.


Sitemeter is Fixed--[Well, Not Completely]--

Sitemeter appears to be fixed. Blogs should now be working in Internet Explorer.

[UPDATE: Well, it's no longer preventing the loading of blogs, but getting Sitemeter stats doesn't seem to be working when I click on the Sitemeter icon at the bottom of our page or of Althouse's.]

I received the following email in response to a technical support notice I sent them last night:

Dear Jim,

We apologize for the problem this has caused on your websites. We became aware of a compatibility issue with our SiteMeter tracking code and IE 7 (possibly IE 6) browsers that started last night.

The problem was related to some work we were doing on the backend system for our upcoming website launch.

We've identified and resolved two separate but related issues -

1 - IE Users viewing pages - There was a problem with users who placed their SiteMeter tracking code outside of their HTML Body Tag. Because of the changes we made this created a failure for visitors viewing sites using Internet Explorer 7.

2 - Accessing SiteMeter and Stats - Individuals trying to access or view their SiteMeter stats by clicking on their SiteMeter logo/icons were unable to gain access. This again appears to have affected only individuals using IE7.

At this time both problems have been fixed and our services are fully operational.

If you have any additional questions please let me know.

Sincerely, . . .

SiteMeter Support

Related Posts (on one page):

  1. Sitemeter is Fixed--[Well, Not Completely]--
  2. Internet Explorer Problems Accessing Blogs.--

PLF Challenges Polar Bear Listing:

The Pacific Legal Foundation has filed a notice of intent to sue the Fish & Wildlife Service challenging the listing of the polar bear as a "threatened species" under the ESA on behalf of the California Cattleman's Association, California Forestry Association, and the Congress on Racial Equality. There's more on the planned suit here.

While I like much of PLF's work, I think they're on the wrong side of this one. However pointless or mischievous the polar bear listing may be -- and however speculative some of the scientific data upon which the listing is based may be -- I believe the "best available" science easily supports the FWS decision. (See this article and my posts below.) Further, given the deference a reviewing court should show to the FWS' decision and scientific determination, their lawsuit should not fare particularly well. This may be bad policy, but it's the law.


Roberts on the Umpire Analogy.—

Some of you might recall my post about the umpire analogy not being as simple as it seems, which Senator Cornyn read to Justice Roberts and asked him about during his confirmation hearings.

I wrote:

Roberts' comparison of a judge to a baseball umpire reminds me of an old story about three different versions of judicial reasoning, built on the same analogy.

First umpire: “Some are balls and some are strikes, and I call them as they are.”

Second umpire: “Some are balls and some are strikes, and I call them as I see 'em.”

Third umpire: “Some are balls and some are strikes, but they ain’t nothin' ‘til I call 'em.”

It was in the 1980s that I first heard that story about the three sorts of umpires and its relation to legal reasoning.

Senator Cornyn said that he read my story on the blogs and asked Roberts “which of those three types of umpires represents your preferred mode of judicial reasoning.”

Roberts responded:

Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong. I guess I liked the one in the middle, because I do think there are right answers. I know that it's fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. That's not the view of the law that I subscribe to.

I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute. I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. And the job of a good judge is to do as good a job as possible to get the right answer.

Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try. In any case — and I don't subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

One of the most famous ethics articles of the 1970s was built on the idea of a judge as an umpire: Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975).


Justice Jackson and the Umpire Analogy: As Ilya's post suggests, then-Judge John Roberts was not the first to compare the role of a judge to the role of baseball umpire. Indeed, the comparison probably goes back to the invention of baseball, and at the very least has been around for many decades. I'm reminded of one notable usage, Justice Jackson's description in 1951 of how Second Circuit judges Learned and Gus Hand approached the job of deciding cases:
[Learned and Augustus Hand] have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Me on Penn and Teller:

I appear a couple of times toward the end of the latest episode of Penn and Teller's Bullshit!, the theme of which is sensitivity training. The episode will be repeated a few times this week, and will be available on "On Demand" through November. Surprisingly, a friend informs me that one can also find it, for now, on YouTube.


Banana split:

I have some of the same reactions as Eugene to the Fifth Circuit's denial of rehearing en banc in the sexual-devices case. The fact that there is now a split between the Fifth Circuit and the Eleventh Circuit on whether a state can ban the commercial promotion of sexual devices (including, without limitation, "dildos" and "artificial vaginas") increases the likelihood the Court will hear the case. Likewise, the fact that seven judges on the Fifth Circuit saw fit to dissent in writing from the denial increases the likelihood cert will be granted. Such a review could be the occasion for some much-needed clarification of Lawrence.

On the other hand, I take more seriously than Eugene the possibility that the Court will simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance. Add to that the fact that the circuit split is unlikely to grow since I'm unaware of comparable laws outside the jurisdictions of these two circuit courts (correct me if I'm wrong, I haven't researched the issue). This may simply be an issue for future law school exams.

If the Court does take the case, how might the Court decide it? Lawrence seems to be the main precedent, though the dissents in the Fifth Circuit missed a few others that would have some bearing on the Court's decision. Here are some possibilities for an outcome. These are very preliminary thoughts.

(1) Broad fundamental right; Texas law unconstitutional. The Court could clarify that Lawrence was indeed a fundamental-rights case, contra Judge Garza's views in dissent on the Fifth Circuit. It could then hold that the use of sexual devices by adults in the privacy of the home partakes of that fundamental right: broadly defined, perhaps a right to "adult sexual autonomy." The next step would be to address Judge Garza's argument that the Texas law is untroubling because it does not ban private use or possession, but only "commercial promotion." That distinction, the Court could hold, makes no difference in the Court's case law. It's inconceivable under Griswold, for example, that the Court would uphold a total ban on the sale of contraceptives, while striking down the ban on use. In Eisenstadt v. Baird, which Judge Garza did not cite, the Court struck down a ban on the distribution of contraceptives to unmarried people. By analogy, the Court would not uphold a ban on the sale of newspapers, magazines, films, and books that contain material protected by the First Amendment. Having gotten past the commercial aspect of the case, the Court would then hold that the state's asserted interest in morality is insufficient to sustain a law infringing on the exercise of a fundamental right.

(2) Narrow fundamental right; Texas law constitutional. The Court could hold that while Lawrence recognized a fundamental right, it is a narrow right, a "relational right" (not a general right to adult sexual autonomy) in the sense that it is based on protecting intimate sexual activity that may lead to a more enduring bond between two people. Purchasing a sexual device, which the couple then uses, may enhance sexual pleasure but is too peripheral to the core of the right. The law would then have to be analyzed as a rational-basis case (see #4 below).

(3) Rational-basis review; Texas law unconstitutional. The Court could hold either that Lawrence was a rational-basis case, or was a narrow fundamental rights case (see #2). Either way, a ban on commercial promotion of a sexual device need only be rationally related to a legitimate state interest. But does the state of Texas have a legitimate interest in a total ban on commercial promotion of sexual devices? Justice Scalia, whom lower court judges (including Judge Garza) love to cite as the authority on the meaning of Lawrence, argued that the one unequivocal holding of the decision was that all morals legislation was at an end. No longer could a state walk into court to defend a law, say that "morality" was the only reason for the law, and expect to win. If he's right about that, and even if only rational-basis review applies, then the Texas law should be unconstitutional since the state's only defense of the ban on commercial promotion was morality.

(4) Rational-basis review; Texas law constitutional. The Court could hold that only rational-basis review applies (for the reasons given in #3), but that a morality-based justification is sufficient to uphold the law. The Court could reach this conclusion under an analysis like the one Eugene suggests, whereby the Court holds that some "liberty interests" are more equal than others, that is, more important in the lives of those who exercise them, and that buying and selling sexual devices just isn't very important. For these low-level liberty interests, a morality-based state interest is sufficient.

(5) Sliding scale; Texas law constitutional. The Court could avoid, once again, any definitive application of its usual bifurcated approach to rights in substantive due process cases, and thus avoid clarifying Lawrence. Instead, the Could could engage frankly in the kind of sliding-scale analysis that Eugene suggests it might use: the "importance" of a liberty is "weighed" against the "strength" of the state interests. The analysis could go something like this: Having sex with another consenting adult in the privacy of your home is an important liberty, just like using contraceptives or getting an abortion, which a conclusory morality interest could not outweigh. However, buying and selling (as opposed to using) sexual devices is not a very important interest in the intimate lives of individuals, so even a conclusory morality interest is good enough to sustain a ban.

(6) Sliding scale; Texas law unconstitutional. On the other hand, the Court could say that commercial sale is often a necessary precursor to use, as with contraceptives. And use of sexual devices, like use of contraceptives, is an important aspect of sexual intimacy for some people (especially those with sexual dysfunctions). Given the importance of the personal interest, a mere morality concern by the state is not enough to justify a total ban on commercial promotion.

(7) Or something else entirely.


Of these, I think #1 and #3 are the most likely outcomes. I doubt the Court will opt for #2 because, while Lawrence does discuss the importance of the conduct to relationships, I doubt that's a substantive limit on the right. It would be very difficult for the Court to decide in future cases what aspects of sexuality do and do not help build relationships. #5 and #6 seem unlikely, but certainly possible, to me. Justice Scalia's recent opinion in Heller, joined by Justice Kennedy, explicitly rejected a balancing approach to protection of Second Amendment rights because such approaches are unusually malleable. #4 looks a lot like #5 and #6, but at least would fit closer to the established framework, and so may be a more likely vehicle for the kind of analysis Eugene predicts.

In any event, if the Court takes the case I'd expect a 5-4 decision, with Justice Kennedy again casting the deciding vote. Maybe that alone makes #7 the most likely outcome of all.


Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:

I should have noticed this before. But it turns out that Fifth Circuit Judge Jerry E. Smith (the judge co-conspirator Todd Zywicki and I clerked for) analogized judging to baseball umpiring some two years before Chief Justice John Roberts famously used the same metaphor in his confirmation hearing for the Supreme Court. In a February 2003 interview with Howard Bashman of How Appealing, Judge Smith said that "A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite." I don't claim that the Chief Justice got the idea from Judge Smith. I don't even know if Judge Smith's use of the analogy was the first one. However, it does seem to be the case that Judge Smith used it before Roberts. Since Judge Smith is a big baseball fan, it's not surprising that he would use an analogy from that sport.

Like most metaphors, the judge-umpire analogy is an oversimplification of reality. For example, there is much more disagreement over judicial philosophy than over umpiring philosophy. On the other hand, umpiring is more complex than some detractors of the metaphor realize. Just as judges differ in interpretive philosophy, umpires differ in their definition of the strike zone, the amount of offense they are willing to tolerate from players and managers before kicking them out of the game, and so on. Limited as it necessarily is, the judge-as-umpire metaphor is a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants.

Related Posts (on one page):

  1. Of Umpires and Judges:
  2. Roberts on the Umpire Analogy.—
  3. Justice Jackson and the Umpire Analogy:
  4. Judge Jerry E. Smith and the Origins of the Judge-Umpire Analogy:

Dildoes Going to the Supreme Court?

Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."

On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).

Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split. My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that's too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges' belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it's important enough to justify a place on the docket.

So I'll go out on a limb and predict:

(1) The Supreme Court will agree to hear the case.

(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.

(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).

None of this is to endorse either a narrow or broad view of unenumerated rights; I'm simply trying out my crystal ball here. Please note that it's been notoriously unreliable in the past.

Thanks to How Appealing for the pointer.


Friday, August 1, 2008

The Political Ignorance of Swing Voters:

Some reviewers have been panning the new movie Swing Voter, which stars Kevin Costner as an ignorant and politically apathetic swing voter who ends up casting the decisive vote in a presidential election. I'm sure the movie has its flaws. It does, however, get one thing right: swing voters - on average - tend to be far more ignorant about politics than the rest of the electorate. Like any statistical generalization, this one isn't true in every case. There are some swing voters who know a great deal about politics. They, however, are the exception, not the rule.

I. Explaining the Ignorance of Swing Voters.

As I have discussed in various articles (e.g. here and here), most citizens know little about politics. They are rationally ignorant. Because there is so little chance that your vote will be decisive (less than 1 in 100 million in a presidential election), there's no incentive to acquire political knowledge if your only reason for doing so is to cast a better-informed vote in order to ensure that the "right" candidate wins. Numerous studies find, however, that swing voters - defined as those who are in the ideological center and don't have any strong identification with either party - are among the most ignorant. For example, in my research using questions from the 2000 National Election Study, I found that self-identified "Independent-Independents" could on average correctly answer only 9.5 of 31 basic political knowledge questions, scoring much lower than self-described "strong Democrats" (15.4) and "strong Republicans" (18.7). Many other studies find similar results.

Thus, the voters who know the least are the ones who tend to determine electoral outcomes. Not exactly a comforting thought.

Why do swing voters tend to be so much more ignorant than the rest of the electorate? It's tempting to assume that it's because they are stupid. However, ignorance is not the same thing as stupidity. Even very smart people are inevitably ignorant about a great many things. Indeed, as noted above, for most voters political ignorance is actually quite rational.

Part of the reason why swing voters tend to be ignorant is that they have lower average education levels than committed partisans, and education is correlated with political knowledge. But another important factor is that they tend to be less interested in politics; in most studies, interest in politics is a stronger predictor of political knowledge than any other variable, including education, income, race, gender, etc. Their lack of interest is part of what prevents them from developing strong ideological or partisan commitments in the first place.

As I discuss in this article, the fact that there is little incentive to acquire political information in order to be a better voter suggests that most of those who do acquire such knowledge do so for other reasons. They find politics entertaining or they enjoy "cheering on" their political "team." In the same way, the people who know the most about pro sports tend to be those who enjoy watching games and those with the strongest commitment to their favorite teams. Because swing voters generally don't find politics to be very interesting and by definition have no strong commitment to a party, they have far less incentive to acquire political information than strong partisans do.

II. The Bias of the Partisans.

In noting the ignorance of swing voters, I don't mean to praise the knowledge of committed partisans. Although they tend to know more than the swing voters do, they also tend to be highly biased in their evaluation of the knowledge they acquire, overvaluing information that makes their preferred party look good and dismissing data that cuts the other way (see this article for relevant cites). Like the ignorance of the swing voters, this kind of bias is individually rational behavior. After all, since he too has almost no chance of actually influencing the outcome of an election, the partisan's motive for acquiring political knowledge is less to seek the truth about candidates than to get entertainment value from following politics. And cheering on his party and confirming his prejudices is a big part of the latter for many people.

In the same way, committed sports fans are more interested in rooting for their favorite team and against its rival than in finding out the truth about their relative merits. When I read up on my beloved Red Sox and the rival Yankees, I do it for fun; not because I think I can influence the outcome of Red Sox games or because I want to get at the objective truth about the two teams. "Political fans" tend to be the same way. Sports ignorance and sports fan bias are mostly harmless. Not so with their political counterparts.


Internet Explorer Problems Accessing Blogs.--

I'm having a strange software problem tonight. When I tried to open several blogs, including Volokh, Instapundit, and Althouse, I got an error message that Internet Explorer was unable to load the page. When I tried loading the same pages from caches after Google searches, most of these wouldn’t load either. Strangely, I was able to visit many other sites on the internet, including new ones I had never visited before.

I tried several things that didn’t work:

1. Rebooted

2. Installed and ran Spybot

3. Downloaded IE 7 and rebooted.

4. Cleaned out temp files and history in IE 7.

5. Added to trusted sites in IE 7.

The only thing that works is to use Firefox. I was able to visit all 3 blogs with no problem, and I am using Firefox to post this.

Is anyone else having the same problem? I note that some other blogs were having problems earlier today, but these seemed related to Blogger.

Does anyone know what’s going on with Internet Explorer and some blogs? Or is it just me?

UPDATE: Searching on the web, it appears that others are having the same problem. The suggested solution seems drastic, even if I knew how to do it: remove Sitemeter.

2D UPDATE: Sitemeter has been removed. Problem solved, at least for now.

Related Posts (on one page):

  1. Sitemeter is Fixed--[Well, Not Completely]--
  2. Internet Explorer Problems Accessing Blogs.--

The Truman Show Delusion,

a psychiatric condition in which "patients ... claim they are subjects of their own reality TV shows." Thanks to the invaluable GeekPress for the pointer.


More on the Obama / Maariv Note Matter -- How Could Haaretz Have Gotten This Wrong?

The Washington Post Checkpoint Jerusalem blog reports on an official Maariv statement that it did not get permission from Obama to publish his Western Wall note:

[A] Maariv editor called back to read an official statement:

"Maariv received the note last Thursday and, after realizing it contained no personal or intimate content, decided to publish it. Contrary to the response attributed to Maariv in a few media outlets in Israel, Maariv never requested permission from the Obama campaign to publish the note, nor was granted permission afterwards."

This means that Haaretz's contrary assertion, which also purported to quote an official Maariv response, appears to have been flat wrong (unless there's been a stupendous mixup at Maariv). Does anyone have more perspective on this, especially from the Israeli press? Sounds like Haaretz made a very serious mistake, unless Maariv did — a pretty major journalistic blunder by a top national newspaper.

Related Posts (on one page):

  1. More on the Obama / Maariv Note Matter -- How Could Haaretz Have Gotten This Wrong?
  2. Western Wall Note Controversy:

Environmentally-Friendly Energy Policy:

A terrific piece by Charles Krauthamer today on the unintended consequences of American energy policies--namely, the displacement of energy production to countries that will extract the same amount of energy with a much greater level of environmental harm to the world.


Proposed Changes for the U.S. News Rankings,

from Prof. Jay Brown at The Race to the Bottom. The first post is here, but all five are still on the blog's main page.


Wal-Mart Warns of Unionization if Democrats Win.--

The Wall Street Journal has a story on Wal-Mart's arguing to its managers and supervisors that a Democratic win might lead to a loss of rights to resist unions:

Wal-Mart Stores Inc. is mobilizing its store managers and department supervisors around the country to warn that if Democrats win power in November, they'll likely change federal law to make it easier for workers to unionize companies — including Wal-Mart.

In recent weeks, thousands of Wal-Mart store managers and department heads have been summoned to mandatory meetings at which the retailer stresses the downside for workers if stores were to be unionized.

According to about a dozen Wal-Mart employees who attended such meetings in seven states, Wal-Mart executives claim that employees at unionized stores would have to pay hefty union dues while getting nothing in return, and may have to go on strike without compensation. Also, unionization could mean fewer jobs as labor costs rise. . . .

The Wal-Mart human-resources managers who run the meetings don't specifically tell attendees how to vote in November's election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states.

"The meeting leader said, 'I am not telling you how to vote, but if the Democrats win, this bill will pass and you won't have a vote on whether you want a union,'" said a Wal-Mart customer-service supervisor from Missouri. "I am not a stupid person. They were telling me how to vote," she said.

"If anyone representing Wal-Mart gave the impression we were telling associates how to vote, they were wrong and acting without approval," said David Tovar, Wal-Mart spokesman. Mr. Tovar acknowledged that the meetings were taking place for store managers and supervisors nationwide.

Wal-Mart's worries center on a piece of legislation known as the Employee Free Choice Act, which companies say would enable unions to quickly add millions of new members. "We believe EFCA is a bad bill and we have been on record as opposing it for some time," Mr. Tovar said. "We feel educating our associates about the bill is the right thing to do." …

The AFL-CIO and individual unions such as the United Food and Commercial Workers have promised to make passage of the new labor law their No. 1 mission after the November election.

First introduced in 2003, the bill came to a vote last year and sailed through the Democratic-controlled House of Representatives, but was blocked by a filibuster in the Senate and faced a veto threat by the White House. The bill was taken off the floor, and its backers pledged to reintroduce it when they could get more support.

The November election could bring that extra support in Congress, as well as the White House if Sen. Obama is elected and Democrats extend their control in the Senate. Sen. Obama co-sponsored the legislation, which also is known as "card check," and has said several times he would sign it into law if elected president. Sen. John McCain, the likely Republican presidential nominee, opposes the Employee Free Choice Act and voted against it last year. ...

Wal-Mart may be walking a fine legal line by holding meetings with its store department heads that link politics with a strong antiunion message. Federal election rules permit companies to advocate for specific political candidates to its executives, stockholders and salaried managers, but not to hourly employees. While store managers are on salary, department supervisors are hourly workers.

However, employers have fairly broad leeway to disseminate information about candidates' voting records and positions on issues, according to Jan Baran, a Washington attorney and expert on election law. ...

Under the proposed legislation, companies could no longer have the right to insist on one secret ballot. Instead, the Free Choice, or "card check," legislation would let unions form if more than 50% of workers simply sign a card saying they want to join. It is far easier for unions to get workers to sign cards because the organizers can approach workers repeatedly, over a period of weeks or months, until the union garners enough support.

Employers argue that the card system could lead to workers being pressured to sign by pro-union colleagues and organizers. Unions counter that it shields workers from pressure from their employers.

Unions consider the Employee Free Choice Act as vital to the survival of the labor movement, which currently represents 7.5% of private-sector workers, half the percentage it did 25 years ago. The Service Employees International Union said the legislation would enable it to organize a million workers a year, up from its current pace of 100,000 workers a year. ...

The United Food and Commercial Workers was successful in organizing only one group of Wal-Mart workers — a small number of butchers in East Texas in early 2000. Several weeks later, the company phased out butchers in all of its stores and began stocking prepackaged meat. When a store in Canada voted to unionize several years ago, the company closed the store, saying it had been unprofitable for years. ...

Twelve years ago, 98% of Wal-Mart's political donations went to Republicans. Now, as the Democrats seem poised to gain control in Washington, 48% of its $2.2 million in political contributions go to Democrats and 52% to Republicans, according to the Center for Responsive Politics, a nonpartisan organization that tracks political giving.

The Act not only would allow unionization without secret ballot elections, but also would provide for mandatory arbitration on first contracts. I have never understood where Congress acquired the power to order people to enter into contracts that they don't want to sign.


Perverse Incentives and the ESA:

My brief essay, "Perverse Incentives and the Endangered Species Act," is this week's "policy commentary" on the Resources for the Future website. Those who have followed my work on the subject (e.g here and here), won't see anything new. But the short piece might be a useful summary of the ESA's primary failings, at least with regard to species conservation on private land.


If Navy Privileges Catholic Chaplains, Can Protestants Sue?

The U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion, In re Navy Chaplaincy, concerning standing to challenge the Navy's alleged favortism for Catholic chaplains. The majority opinion by Judge Kavanaugh begins:

A group of Protestant Navy chaplains sued the Navy, alleging that the Navy’s operation of its retirement system discriminates in favor of Catholic chaplains in violation of the Establishment Clause. But the plaintiffs do not claim that the Navy actually discriminated against any of them. We conclude that plaintiffs lack standing to bring this claim, and we therefore affirm the judgment of the District Court.
Judge Rogers dissented.

I'm crashing on a manuscript at the moment, but I hope to have time to say more about this case later.


The Original Understanding and the Constitution in Civil Lawsuits:

Occasionally I see questions about whether the constitution should apply to civil lawsuits in which the government is not a party -- for instance, most libel lawsuits, child custody decisions, and the like. New York Times Co. v. Sullivan (1964), as well as other First Amendment cases, have famously said "yes," because even in civil lawsuits a government actor (the judge, jury, or both) is applying a government-created rule of law using government coercive power. And I think this is logically right: Imagine, for instance, that courts or the legislature adopted a rule that anyone offended by racist, sexist, antiveteran, or blasphemous speech could sue the speaker. Whatever one thinks the First Amendment result ought to be (and there is a hot debate, especially as to similar, though narrower, rules in workplace harassment law), surely there needs to be a substantive First Amendment analysis. The fact that the speaker must pay civil damages (compensatory and maybe even punitives) shouldn't distinguish the case from the government's imposing monetary fines for such speech.

(Contract disputes, such as those in Shelley v. Kraemer, are a different story; Shelley is rightly more controversial than New York Times Co. v. Sullivan, and has been less productive of further precedents. But the short answer, I think, is that a breach of contract or trespass to property lawsuit does involve government action, though in many situations may not involve unconstitutional government action, see, e.g., Cohen v. Cowles Media Co..)

But people still ask: Is this consistent with the original understanding of the First Amendment (or perhaps of the Fourteenth Amendment, when state litigation is involved)? This may be largely irrelevant as a practical matter, given how much precedent endorses the Sullivan view. Even many judges who generally approve of originalism are unlikely to disturb such solid bodies of precedent; Justice Scalia, for instance, has expressly said this in other contexts, and while Justice Thomas is more willing to reverse well-established precedents, even he is unlikely to go to the original meaning in all contexts, and when he is, he's often alone.

Here's my answer, based on reading a bunch of early free speech/press cases over the years: Free speech and free press objections to civil libel and slander lawsuits were often raised in the early decades of the Republic, and while they were often rejected on substantive grounds -- the courts took the view that defamatory speech was constitutionally unprotected, whether against civil liability or criminal punishment -- they were not rejected on "lack of government action" grounds. Sullivan's insight that even civil litigation still involves government power and is thus subject to government constraints seems to have been broadly accepted in the late 1700s and early 1800s. See, e.g., Root v. King, 7 Cow. 613 (N.Y. Supp. 1827); Mayrant v. Richardson, 10 S.C.L. 347 (S.C. Const. Ct. App. 1818); Reid v. Delorme, 4 S.C.L. 76 (S.C. Const. Ct. App. 1806); Harris v. Huntington, 2 Tyl. 129 (Vt. 1802); Middlesex Gaz., Mar. 12, 1791, at 1 (reprinting charge to a jury in Freeman v. Gardiner); Am. Mercury, Dec. 26, 1799, at 2 (charge to the jury in Rush v. Cobbett). And in Mayrant, Reid, and Harris (the latter two of which were cases involving the right to petition the government, rather than just the freedom of speech or press more generally), the plaintiff actually prevailed, based partly on constitutional principles.

So the Framers recognized that courts, including courts applying court-made common law rules, were agents of the government and generally subject to constitutional constraints. The early decisions were all state decisions applying state constitutions; but my readings suggest to me that -- despite the use of the word "Congress" in the First Amendment -- the scope of state freedom of speech/press/petition guarantees was seen as largely interchangeable with each other, and with the First Amendment. (Certainly early federal court cases, even ones applying judge-made speech restrictions and not statutorily enacted ones, treated the First Amendment as at least potentially applicable.) So my sense is that the original understanding of the First Amendment, and also the traditional one in the centuries since the Framing, is that it does apply to civil litigation, though the exact scope of the constitutional rules has of course changed over time.


Based on a True Story: Ever watched a film that was "based on a true story" and wonder how much of the story was really true? I was watching the surprisingly moving Hollywoodland about the death of George Reeves, TV's Superman, and started wondering about the truth of the tale. A Google search quickly turned up the Reel Faces webpage on Chasing the Green Frog, whose motto is "Chasing After the Truth Behind Movies Based on True Stories." There you find a Q & A about around 50 films that were based on true stories. The questions were pretty much those you want answered after seeing the film. The "reel faces" page includes photos of the real persons at about the age they would have been in the film shown next to the actor playing them.

Chasing the Frog also offers a page devoted to Movies Based on Books that compare a film to the books on which they are based. All in all a uniquely valuable site for the movie buff.

And check out Hollywoodland too. Not only is Adrien Brody's performance something special, but this may be the first and only Ben Affleck role I ever truly enjoyed.

What If the Untenured Volokh Conspirators Were a Law Faculty?

David Bernstein's post comparing the VC members' citation counts since 2000 to the list of top 20 law schools excludes the untenured (as Brian Leiter did in the original study that David based his methodology on). However, we untenured proles hate to be left out of the fun. So I decided to see what would happen if we compared the citation stats for the three untenured regularly posting conspirators (David Kopel, Sasha Volokh, and myself) to the mean citation rates for the tenured profs at the 20 top-scoring law schools compiled by Leiter. I include Kopel despite the fact that he isn't a professor because he certainly is a legal scholar and is obviously not tenured.

With a mean score of about 240 citations per person, our group would rank 18th in Leiter's study, tied with the University of Illinois, and just slightly behind Penn (260) and Virginia (250). Considering that the comparison group consists of tenured professors at higher-ranking institutions, with on average many more years to accumulate publications, that is not a bad showing. Note also that Sasha is only just now about to start on his first tenure track job (at Emory), which places our little group at a further disadvantage. Yet he has already accumulated a substantial citation count.

My estimate of 240 is a bit imprecise since it slightly overstates David Kopel's count (because I wasn't able to fully scrub out a few false positives where the cite was to some other author named Kopel or to a case name with Kopel in it), and slightly understates Sasha's (because I had to use fairly crude methods to eliminate citations to Eugene Volokh from the study, which probably led to accidental excision of some genuine Sasha cites). I am confident, however, that a more thorough parsing of the data would still leave us in roughly the 230-250 range.

Even if we were so inclined, the untenured VCers couldn't start our own law faculty because there aren't enough of us. But if we could join with our tenured co-conspirators, we would probably have enough professors with a broad enough diversity of expertise to cover the basic law school curriculum (along with some interesting specialized courses) and start a small school of our own. I'm sure Dean Eugene would be happy to start taking your tuition deposits in his handy tip jar!

Related Posts (on one page):

  1. What If the Untenured Volokh Conspirators Were a Law Faculty?
  2. If the Volokh Conspirators Were a Law Faculty:

Thursday, July 31, 2008

The Kippah Poll:

The McCippah is outselling the Obamica, 56% to 44%.

(Of course, McCippah buyers probably thought they were going to get kosher fries, a drink, and a toy with purchase).


Some of the AutoAdmit Pseudonymous Commenters Outed:

The Yale Daily News reports:

Anonymous commenting may have just gotten a little less anonymous.

With the help of a subpoena issued six months ago, attorneys for two Yale Law School students have succeeded in unmasking several anonymous users of the Web forum AutoAdmit whom the women are suing for defamation.

Some of the defendants will finally be named when the students soon file an amended complaint, said their attorney, Stanford Law Professor Mark Lemley, who declined to comment further....

In 2005, sexually explicit and derogatory posts targeting three female Yale Law students appeared on AutoAdmit, an online community where law students can discuss law-school admissions and law-firm life. Two of the students, who remain unnamed in the suit, filed against the 39 authors of the allegedly defamatory posts.

Since a federal judge in New Haven granted subpoenas of Internet service providers last January, several of those comments have been successfully traced through their electronic footprints.

One of those authors was “AK-47,” who, in 2007, posted that women with one of the Yale Law students’ names “should be raped” and said they were “gay lovers.” ...


From the Talula Does the Hula from Hawaii Decision:

G v. K, N.Z. F.L.R. 385:

Quite frequently judges in the Family Court are dismayed by the eccentricity of names which some litigants have given their children. For example, one family of children have been named after six cylinder Ford motor cars. Other parents have named their twins after a brand of cigarettes, Bensen and Hedges. Another example (identified in published newspaper reports from the Waikato) relates to a child named Passionate Love. Within this region, children have been saddled with names such as Midnight Chardonnay, Number 16 Bus Shelter and, tragically, Violence.

Recently, for the first time in my experience as a Family Court Judge, the name of a child described in text language has emerged. In that case, the child was named O.crnia. Fortunately, the applicant mother was prepared to accede to a condition of a parenting order so that her child's name be changed to a more orthodox spelling, Oceania.

In this case, however, the youngest daughter of the family of these litigants has been described by the name "Talula does the Hula from Hawaii." ... However, notwithstanding the child is almost nine years of age, her birth has not been registered. I have not heard any explanation about that as yet.

Mrs MacLeod [a lawyer appointed by the court to represent the child] reports that the child, who also is known by the quite musical name of K, is so embarrassed about her given name that she has not revealed it to any of her friends. She fears being mocked and teased, and in that she has a greater level of insight than either of her parents. Mrs MacLeod, in her report, describes that the applicant mother had not given any thought at all to the implications of such a name for her daughter, when her daughter is at the stage of life of seeking to apply for a drivers licence or a passport. Neither has she given any thought to the implications for her daughter should she register for examinations, have her name published (whether for good or ill) or be stopped for routine inquiries by the police while driving. In all facets of life, a child bearing this name would be held up to ridicule and suspicion.

The Court is profoundly concerned about the very poor judgment which this child's parents have shown in choosing this name for her. It makes a fool of the child, and sets her up with a social disability and handicap, quite unnecessarily.

The parents have a wide discretion as to the name they choose to bestow on their child. Some parents seek to achieve a measure of individuality and uniqueness for their child, and that of itself cannot be criticised. However, these parents have failed in exercising the first and important task of parenthood -- that of naming their child. In exercising this important responsibility parents have a duty to consider what impact will occur on their child's life as a result of its given name. It is not a time to be frivolous, or to create a hurdle for their child's future life.

The Registrar-General has only a very limited discretion to refuse registration of a name presented for a child on registration of that child's birth ...[,]

(8) ... if and only if, -
(a) it might cause offence to a reasonable person; or
(b) it is unreasonably long; or
(c) without justification, it is, includes, or resembles, an official title or rank.
[But, the court concludes, its inherent power allows it to assume guardianship of a child when there is a "need to protect a vulnerable child," which there is in this case. -EV]

To ensure that a suitable name is chosen for the child, and her birth is properly registered, I make an interim order on the application made without notice placing this child under the guardianship of the Court. I appoint Mrs MacLeod the agent of the Court to assist and oversee those processes. I envisage that she will consult with the child's natural guardians and with the child herself, but that any name selected for registration will be subject to the Court's approval. I do not expect that Mrs MacLeod's appointment will be a long lasting one, as it is directed toward repairing the damage these parents have caused by their flippant approach toward their parental duties.


Establishment Clause Violation at Georgia Tech:

I missed this when the original opinion (Sklar v. Clough) came out in late April, but I think so did lots of others.

The Georgia Tech Safe Space training program materials (both printed handouts and Web materials) were apparently aimed at helping gays and lesbians feel comfortable and safe on campus, an eminently plausible goal. But they tried to accomplish this by taking stands on quintessentially theological questions -- e.g., the true meaning of the Bible, and the "legitima[cy]" of various interpretations of "Biblical texts" -- something the Establishment Clause has been read as prohibiting. Georgia Tech argued that the statements were student speech, not the university's, but the court concluded that the statements were indeed the speech of "Georgia Tech's own Office of Diversity Programs."

For a case reaching a similar result, see Citizens for a Responsible Curriculum v. Montgomery County Public Schools (summarized at the link; I'm afraid the link to the full opinion is broken). For a discussion of a similar problem at UCLA, which I think I helped get taken down, see here.


Georgia Tech Faulted for "Lack of Candor" by Federal Judge,

in last week's opinion in Sklar v. Clough. The broader litigation, which led to this opinion, involved a Free Speech Clause challenge to Georgia Tech's speech code, free speech zone, and activity fee funding system, and an Establishment Clause challenge to Georgia Tech's religious speech opposing religious criticism of homosexuality. Some of the matters were settled by mediation, and some were lost by the university on the merits (though the university administrators were found to have qualified immunity and thus didn't have to pay damages).

Georgia Tech then petitioned for reconsideration; the judge thought both (1) the factual assertions in the petition and (2) items in a Georgia Tech press release describing the earlier decision were part of a broad "lack of candor of Georgia Tech throughout the litigation of this case." Not the sort of thing a university, especially a university as litigant, should like to hear.


Fair Use, Freedom of Criticism, and (in this Instance) the Council on American-Islamic Relations Win; Michael Savage Loses:

Last week, a federal district judge threw out Michael Savage's copyright and RICO claim based on CAIR's posting and criticizing a 4-minute snippet of Savage's radio program. The court correctly rejected the copyright claim on fair use grounds, finding that this was permissible criticism. And the court rejected the RICO claim on various grounds, including First Amendment grounds, since the injury Savage allegedly suffered was because of CAIR's speech.

I've certainly disagreed with CAIR in the past (see, e.g., here and here), including with its unduly narrow views on free speech. (Of course, I've also disagreed with Michael Savage.) But in this lawsuit, CAIR was in the right, and its victory is a victory (albeit a not unexpected one) for free speech more broadly.


Evidence Now Clear That Barack Obama Was Not Widely Vetted for a Tenured Offer at Chicago.--

This post updates my post yesterday, reporting that the University of Chicago Law Faculty never voted a tenure offer to Barack Obama. I have now further nailed down the story.

I have now spoken or corresponded with 7 members of the University of Chicago law faculty, including several of the most powerful members of the faculty in the 1998-2003 period. For each year in that period, I believe that I have spoken to at least one from the following group of people who would know if Barack Obama had been vetted for an appointment with immediate tenure: appointments chair, appointments committee member, or dean. I have been purposely inclusive in this list to avoid identifying my sources.

None of the 7 Chicago law faculty I interviewed or corresponded with were consulted about an Obama tenured offer, none of them remember any discussion of hiring Obama with immediate tenure, and some of them couldn’t believe that anyone would even attempt such a move, since it would have been a “nonstarter.” If Obama had been vetted by the faculty before he was approached about an offer with immediate tenure, every member of the apppointments committee that year would be likely to remember it. I suspect that the group least likely to believe the story that the Chicago faculty was consulted and favored a tenured offer to Barack Obama is the University of Chicago Law School faculty.

I should say that two very prominent members of the faculty emailed me to express their doubt that a tenured offer had ever been vetted with the faculty. Both are campaign donors to Obama. My own supposition is that they supported my reporting because they did not want the academic public to get the wrong idea about Chicago’s tenure standards. One prominent faculty member wrote me that he had not been consulted by Dan Fischel about a tenured offer for Obama, “nor does [Dan] recall the whole thing with any certainty.”

Dan was a law school classmate of mine and a great dean at Chicago, and he is one of the most brilliant and influential law and economics scholars ever. I think his memory just failed him this time (as it sometimes does for many of us).

Many non-academic readers of this blog may not have understood why this was such an implausible story in the first place. In any event, now I’ve talked to enough Chicago faculty that this story can be safely put to bed.


The Winner of the Name Change Derby?

A month ago, the New Mexico Court of Appeals rejected an attempt to change one's name to "Fuck Censorship!" (Thanks to commenter Tom Hynes for the pointer.) The court didn't cite the Darren QX Bean! case, but it did cite Misteri Nigger for the proposition that "one has a common law right to assume any name, and a right to engage in a social experiment, but one does not have a right to require the state to participate in the experiment, especially when the experiment involves epithets or vulgarities.

Fuck Censorship! has to remain, for legal purposes, Variable. Yes, that's it. What's more, In re Mokiligon, 106 P.3d 584 (N.M. App. 2004), expressly upheld the then-not-yet-Variable's right to change his name to Variable. The court did, however, feel the need to stress that "Petitioner is restricted to using the word ‘variable’ as his legal name. The court is not granting him the power to actually vary his legal name at will and he is limited to using ‘variable’ ...."

What was Variable's earlier name? I'm glad you asked:

Snaphappy Fishsuit Mokiligon.


"Confraternity of Catholic Clergy" Calls for Punishment of Blasphemy in the U.S.:

From their press release, I learned that University of Minnesota Professor P.Z. Myers, author of the Pharyngula blog, has deliberately destroyed a consecrated host (and, Myers' post says, apparently a Koran as well), apparently as a protest against what he sees as the irrationality and magical thinking of religion (or at least of some religions).

Now I wouldn't have heard of this, and wouldn't be telling you about this, were it not for finding the Confraternity's press release:

The Confraternity of Catholic Clergy (a national association of 600 priests & deacons) respond to the sacrilegious and blasphemous desecration of the Holy Eucharist by asking for public reparation. We ask all Catholics of Minnesota and of the entire nation to join in a day of prayer and fasting that such offenses never happen again.

We find the actions of University of Minnesota (Morris) Professor Paul Myers reprehensible, inexcusable, and unconstitutional. His flagrant display of irreverence by profaning a consecrated Host from a Catholic church goes beyond the limit of academic freedom and free speech.

The same Bill of Rights which protect freedom of speech also protect freedom of religion. The Founding Fathers did not envision a freedom FROM religion, rather a freedom OF religion. In other words, our nation's constitution protects the rights of ALL religions, not one and not just a few. Attacking the most sacred elements of a religion is not free speech anymore than would be perjury in a court or libel in a newspaper.

Lies and hate speech which incite contempt or violence are not protected under the law. Hence, inscribing Swastikas on Jewish synagogues or publicly burning copies of the Christian Bible or the Muslim Koran, especially by a faculty member of a public university, are just as heinous and just as unconstitutional. Individual freedoms are limited by the boundaries created by the inalienable rights of others. The freedom of religion means that no one has the right to attack, malign or grossly offend a faith tradition they personally do not have membership or ascribe allegiance.

The Chancellor of the University refused to reprimand or censure the teacher, who ironically is a Biology Professor. One fails to see the relevance of the desecration of a Catholic sacrament to the science of Biology. Were Myers a Professor of Theology, there would have been at least a presumption of competency to express religious opinions in a classroom. Yet, for a scientist to ridicule and show utter contempt for the most sacred and precious article of a major world religion, is inappropriate, unprofessional, unconstitutional and disingenuous.

A biologist has no business 'dissing' any religion, rather, they should be busy teaching the scientific discipline they were hired to teach. Tolerating such behavior by university officials is equally repugnant as it lends credibility to the act of religious hatred. We also pray that Professor Myers contritely repent and apologize.

This is of course quite wrong in its statement of the law, and in its application to the law. I take it they use "unconstitutional" to mean "constitutionally unprotected," rather than its more normal meaning of "violative of the constitution"; only government actions can be unconstitutional (with very few exceptions that can be relevant here). But "hate speech which incite[s] contempt" is fully constitutionally protected.

In narrow circumstances, speech that incites violence is unprotected, but these circumstances (intent and likelihood that the speech will cause imminent violence against its target) are not applicable here. Lies about factual matters are often unprotected, when they're about particular people. But it's hard to see any "lies" in Prof. Myers' action, unless one stretches the term to mean "expressive behavior that I think are contrary to the Truth as revealed by God," but there's nothing constitutionally unprotected about that broad category.

The analogies are also logically weak, and undefended: Inscribing a swastika on a Jewish synagogue is a trespass to someone else's property. Burning one's own copy of the Bible, the Koran, or a consecrated host is not. Perjury and libel are punishable as false statements of fact; blasphemy is offensive expression of opinion.

And the assertion that "A biologist has no business 'dissing' any religion" takes a mighty narrow of view of "business." A biologist is also a citizen, who is entitled to participate in theological debate just as are nonbiologists. I take it that the clergy believe that commenting on moral, social, and religious questions is part of their "business"; I would think that the rest of us have the same rights on this score that they do.

But beyond that, while one could operate on the view that science and religion inhabit different realms and thus aren't contradictory, one could also take the view that certain views of some religions (whether about supernatural forces generally or the Virgin Birth, the Resurrection, transsubstantiation when taken seriously, and the like) are unscientific and undermine the progress of science -- just as one could take the view that certain views of some scientists (for instance, the insistence on material explanations for phenomena, or the endorsement of the theory of evolution, or the rejection of the Virgin Birth, the Resurrection, and the like) are antireligious. There's an important debate out there about religion and science, and neither the criminal law nor government universities ought to suppress it.

But more broadly, this further illustrates that "blasphemy must be punished by the government" thinking is alive and well in America. I hope that the Confraternity is a fringe group, but I'm afraid that their beliefs on this are hardly a fringe belief. If a Confraternity of Muslim Imams argued that the Mohammed cartoons, or stepping on the name of Allah, should be governmentally punished -- either by firings from a university professorship, or by criminal punishment -- many of us would condemn their views. I think we should likewise condemn the views of the Confraternity.

Related Posts (on one page):

  1. "Confraternity of Catholic Clergy" Calls for Punishment of Blasphemy in the U.S.:
  2. Censorship Envy in England:

Censorship Envy in England:

The Daily Mail (UK) reports:

A leading art gallery is being taken to court over claims that it outraged public decency by displaying a statue depicting Christ with an erection....

Other pieces in the show by the controversial Chinese-born artist Terence Koh included models of Mickey Mouse and ET, also with erections. [The gallery, which opened in 2003 after a £35million grant from the Arts Council, included] signs warning of the exhibition’s explicit nature ....

A private prosecution has now been launched .... Legal documents claim that the gallery has both offended public decency and breached Section 5 of the Public Order Act 1986.

The maximum penalty for outraging public decency is six months’ imprisonment and a £5,000 fine.

The documents claim that the foot-high sculpture was ‘offensive and disgusting’ and ‘likely to cause harassment, alarm or distress to Christians and those of other faiths’.

Legal experts said yesterday that the hearing would be the first test of public decency legislation since the Government scrapped Britain’s ancient blasphemy laws in May....

The prosecution has been launched by Emily Mapfuwa, 40, an NHS administrator from Brentwood, Essex, who read about the exhibition in newspapers. ‘I don’t think this gallery would insult Muslims in this way, so why Christians?’ she said....

I think this is pretty vulgar stuff, but should clearly be protected against legal punishment. It would be in the U.S., and it ought to be in other democracies; religions and religious figures are proper subjects for debate and commentary, both rational verbal debate and commentary, and the subtle commentary that can be offered by art.

And I think the Supreme Court was right in Cohen v. California to rejct the argument that some commentary can be barred with no free speech problems on the grounds that it's vulgar, or offensive because of its form rather than its content: There are no legally administrable lines -- at least of the sort that are likely to survive pressure for expansion -- that would distinguish impermissibly vulgar criticism from permissible criticism. I hope England courts reject the complaint. (Whatever one might say about the propriety of huge discretionary grants going to galleries that include offensive speech, the issue here is criminal punishment, not withdrawal of funds.)

It also seems to me that this helps illustrate the force of censorship envy. When speech hostile or insulting towards one religion or symbol is suppressed by government action (as has been urged by many in Europe and Canada with regard to the Mohammed cartoons), or by self-censorship in the face of threatened violence, what happens when other groups are similarly offended? Their sense of outrage -- and of entitlement to similar suppressive power -- is increased, because they are now outraged by the perceived unequal treatment as well as by the original offense.

Then, either the other speech will be suppressed, too, in which the scope of speech restrictions (again, either legal restrictions or restrictions prompted by fear of violence) increases. Or the other speech won't be suppressed, in which case the offended groups will become even more offended -- and then an attempt to prevent offense and maintain social harmony (which is how the original restriction is often justified) will have exacerbated offense and reduce social harmony. That's true, as I argued, about flagburning bans; and it's true about bans and other coercive restrictions on insulting representation of religious symbols.


Question About Rehearing in Kennedy v. Louisiana: If you're a critic of the Supreme Court's opinion in Kennedy v. Louisiana — as I am — and you think the Supreme Court would very likely reach the same result if they grant rehearing — as I do — wouldn't you rather the Court deny the petition for rehearing?

  Here's my thinking. If the Court denies rehearing, the precedential value of the decision will be at least slightly tarnished for the future. The argument will be left open in a future case that the Court was wrong because it missed the military law. On the other hand, if the Court grants rehearing and reaches the same result, then not only is the precedent strengthened but the law's ability to cabin the Justices' policy preferences is weakened. Remember, the notion of head-counting is supposed to limit judicial discretion, at least a bit: The idea is that it makes it harder for the Justices to just vote their preferences because the head count provides some objective evidence. The limit is weak, to be sure, as cases like Kennedy and Roper suggest. But isn't a weak limit better than a weaker one -- or even no limit at all?

  In his update below, Jonathan suggests that an amended opinion reaching the same result would be an improvement because it would be more honest. But if you're a critic of the decision, isn't a bit of dishonesty preferable? In a precedent-based system, it's usually better to lose in a questionable decision than to have the door really slammed in your face. At least that's the case unless you think the slamming door would cause such uproar that the Justices would feel intense pressure to take a different path. But, for better or worse, I doubt that's very likely here.

Tribe on Kennedy v. Louisiana:

Harvard law professor Laurence Tribe has an interesting article in today's WSJ on the Supreme Court's decision invalidating the death penalty for child rape and its potential reconsideration by the Court. Here's a taste:

Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.

But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.

Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.

At this point, I think even those who support the original ruling recognize the need for the Court to reconsider its Kennedy decision, even if only to correct the record, and make explicit the actual basis for the Court's decision.

UPDATE: Why "correct the record" if the outcome of the case would be the same? I can think of several reasons. Among other things, the Supreme Court's decision is binding on lower courts, so it is important that its analysis is based upon a correct statement of the law. Furthermore, if (as many suspect) the purported existence of a "national consensus" on the death penalty for child rape had little to do with the Court's holding, the Court should say so, particularly now that the factual basis for the "national consensus" argument has been undermined. If the law of the land is that those punishments that a majority of the Supreme Court finds objectionable or disproportionate when imposed for certain crimes, then the Court should make that clear.

At Bench Memos, Ed Whelan has additional thoughts on Tribe's op-ed, particularly Tribe's . . . um . . . interesting suggestion that the Kennedy opinion could raise equal protection issues.


If the Volokh Conspirators Were a Law Faculty:

Using Brian Leiter's methodology, counting those who post at least semi-regularly (me, Eugene, Paul, Orin, Randy, Dale, Todd, Jonathan, and Jim), and excluding, as Leiter does, the untenured (Sasha and Ilya), and David Kopel, who is not an academic by profession (though he still has an impressive citation count), we would have a mean "scholarly impact" count of 670 (median of 572), trailing only Yale, Harvard, Stanford, and tied with Chicago. Adding occassional contributors Stuart, Russell, and David P. would lead to very similar results. (Numbers updated to correct calculation errors).

UPDATE: I just noticed that Leiter is only counting citations through last September. Adjusting the Conspirator's citations would still easily place us in fifth place, behind Chicago.

Related Posts (on one page):

  1. What If the Untenured Volokh Conspirators Were a Law Faculty?
  2. If the Volokh Conspirators Were a Law Faculty:

Unindicted Co-Conspirator:

Claire shows off her colors.

T-shirts available at Cafe Press.

Related Posts (on one page):

  1. Charles Isaac Volokh,
  2. Unindicted Co-Conspirator:

Wednesday, July 30, 2008

What's Really at Stake in the Veepstakes:

Right now, there is all sorts of gossip and speculation about who John McCain and Barack Obama are going to pick as their vice presidential nominees. Most of that speculation focuses on the possible impact of the vice presidential nominee on the 2008 campaign. However, that is probably the wrong issue to focus on. Very rarely does a vice presidential nominee have a decisive impact on a presidential race. It hasn't happened since 1960, in fact (when John F. Kennedy's selection of Lyndon Johnson might have tilted Texas and some other southern states in a very close election).

No, the real impact of a vice presidential nominee is that whoever it is has a strong chance of becoming a future president himself. Four of the last eight presidents (Lyndon Johnson, Nixon, Ford, and George H.W. Bush) were former veeps. Two other veeps (Walter Mondale and Al Gore) won their party's presidential nominations during that period; and one of them (Gore) came as close as you can get to winning the presidency without actually doing it. In this March 11 post, I explained why the role of the vice presidency as a stepping stone to the top job creates some harmful incentives: presidential candidates have an incentive to select VPs who might help them win the current election, even if those individuals are unlikely to make good presidents themselves (although the VP nominee is unlikely to have a decisive electoral impact, candidates are usually reluctant to give up even a slight political advantage).

Why is the vice presidency such a valuable stepping stone to the top job? There are several possible reasons. One especially important one is the name recognition that comes with being VP. Most voters are rationally ignorant and know little about politics and politicians. With the exception of the president himself, the vice president is usually the only political office-holder whose name is known to a majority of the public. As I note in this article, the majority of Americans don't know the name of their representatives or senators (much less anyone else's). By contrast, surveys show that some 60 to 70% can name the vice president. This relatively high name recognition is a tremendous advantage (see pg. 1213 of this article for one such survey result). Such relatively uncharismatic VPs as Nixon, George H.W. Bush, Mondale, and Gore would probably have been unable to win their party's presidential nominations without it. Besides the president, the only politicians who can compete with the VP in name recognition are those who were famous prior to winning elected office (e.g. - Hillary Clinton and Arnold Schwarzenegger).

In addition to the way name recognition helps VPs win their party's nomination, there's also another obvious path by which the veep can reach the presidency: if the president dies, is incapacitated, or is forced to resign. Of the forty-three presidents in American history, nine were veeps who reached the top job by one of these routes, with Gerald Ford being the most recent.

The bottom line: the really important stake in this month's veepstakes is not the 2008 presidential election but the selection of a person who may well become president in the future.

UPDATE: The flawed link to my related March 11 post has been fixed. Thanks to those who pointed it out.

UPDATE #2: As some of the commenters point out, a total of 14 vice presidents have become president in American history. This makes up about 30% of the total number of presidents (43). It also means that about 20% of all veeps have eventually ascended to the top job. A VPs odds of becoming president are vastly higher than that of any other type of officeholder, including governor, representative, senator, Supreme Court justice, etc. There have been about as many former governor presidents as former Veep presidents, but of course the total number of governors is vastly higher than the total number of vice presidents.


The University of Chicago Law Faculty Never Voted a Tenure Offer to Barack Obama.--

[UPDATE, 3:40pm Thursday:

I have now spoken or corresponded with 7 members of the University of Chicago law faculty, including several of the most powerful members of the faculty in the 1998-2003 period. For each year in that period, I believe that I have spoken to at least one from the following group of people who would know if Barack Obama had been vetted for an appointment with immediate tenure: appointments chair, appointments committee member, or dean. I have been purposely inclusive in this list to avoid identifying my sources.

None of the 7 Chicago law faculty I interviewed or corresponded with were consulted about an Obama tenured offer, none of them remember any discussion of hiring Obama with immediate tenure, and some of them couldn’t believe that anyone would even attempt such a move, since it would have been a “nonstarter.” If Obama had been vetted by the faculty before he was approached about an offer with immediate tenure, every member of the apppointments committee that year would be likely to remember it. I suspect that the group least likely to believe the story that the Chicago faculty was consulted and favored a tenured offer to Barack Obama is the University of Chicago Law School faculty.

I should say that two very prominent members of the faculty emailed me to express their doubt that a tenured offer had ever been vetted with the faculty. Both are campaign donors to Obama. My own supposition is that they supported my reporting because they did not want the academic public to get the wrong idea about Chicago’s tenure standards. One prominent faculty member wrote me that he had not been consulted by Dan Fischel about a tenured offer for Obama, “nor does [Dan] recall the whole thing with any certainty.”

Dan was a law school classmate of mine and a great dean at Chicago, and he is one of the most brilliant and influential law and economics scholars ever. I think his memory just failed him this time (as it sometimes does for many of us).

Many non-academic readers of this blog may not have understood why this was such an implausible story in the first place. In any event, now I’ve talked to enough Chicago faculty that this story can be safely put to bed.]


In an otherwise superb story in the New York Times on Barack Obama’s experience as a law teacher at the University of Chicago, Jodi Kantor reports that “the faculty . . . made him its best offer yet: Tenure upon hiring”:

Soon after [he lost his Congressional race in 2000], the faculty saw an opening and made him its best offer yet: Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the State Senate or the $60,000 he earned teaching part time. A job for Michelle Obama directing the legal clinic.

I have now talked to four members of the University of Chicago law faculty, including at least one of Obama’s campaign donors, and all four of them say that they do not remember voting Barack Obama a tenured or tenure-track offer. When I asked whether they remembered the Faculty Appointments Committee in the 2000-2002 era sending out an appointments file recommending a tenured or tenure-track appointment, all said No. Nor do these members of the faculty remember their being part of any discussion whether to grant tenure to Obama. As some of them explained procedures at Chicago, the dean does not have the power to make an actual offer of tenure without a faculty vote.

All thought that a tenure-track offer might well have been approved if it had been brought to the faculty. All expressed doubt whether the faculty would have made a tenured offer; one professor stated emphatically that it never would have happened, which of course is just one person’s opinion. According to those I spoke with, a tenured offer would have been problematic because — despite his intelligence, teaching ability, and success in law school — Barack Obama may not have had any scholarly publications (at least they were not aware of any).

A dean's negotiating a tentative deal before bringing it to the faculty for consideration would not have been unusual. In any event, none of the four Chicago law faculty I interviewed believes that the law faculty voted to make Barack Obama a tenured offer or that the dean was ever authorized by the faculty to do so.

I was also told that Jodi Kantor of the Times has been informed of the probable error. Without more reporting, however, it’s unclear how the error arose (and thus, if I were Kantor, I'd want to nail this down before correcting online). [Kantor confirms that the faculty never voted Obama tenure and clarifies what her sources told her in an update below.] Among the many possibilities are that the dean of the law school made Obama a tenured or an untenured offer, contingent on the faculty’s agreement, and either a reporter misunderstood or one of the principals misremembered.

One additional issue that has been raised in comments on the Volokh Conspiracy is whether Barack Obama published an unsigned student note or comment when he was on the Harvard Law Review. Although I was unable to get a definitive answer, one faculty member told me that he had asked another faculty member close to Obama whether Obama had published such a note or comment; the faculty member close to Obama replied that he was not aware of any.

UPDATE: Jodi Kantor has already clarified the story she was told here (scroll down to 3:48pm):

Several readers have asked questions about Mr. Obama’s status at the school. Let me clarify: he started teaching as a lecturer, meaning as a member of the adjunct faculty. But in 1996, he was promoted to senior lecturer, which in Chicago’s parlance, made him a professor.

When the law school tried to hire Mr. Obama after his failed 2000 congressional race, it was for a tenured job, according to Daniel Fischel, the dean at the time. In our interview, I asked him if he meant “tenure-track,” and he said no. “He would be hired as a tenured professor,” he explained. The faculty would vote, but Mr. Obama already had their support, he added.

This confirms my claim that "The University of Chicago Law Faculty Never Voted a Tenure Offer to Barack Obama." And, as I sort of expected, Kantor's account, though not quite correct, was based on something she had been told.

What does not square with what I was told by all four faculty members I interviewed, some of them very much "inside the loop," is Dan Fischel's statement that "Mr. Obama already had their [the faculty's] support . . . ." Dan may well have run it by some faculty members, but significant members of the faculty had never heard of the idea, let alone expressed their support for it.


Debate on Fourth Amendment Rights in Third Party Records: Readers planning to attend the ABA annual meeting in New York next week may be interested in a debate I'll be participating in on Saturday, August 9th at 10:30 am in the New York Ballroom East, 3rd Floor of the Sheraton NY hotel: Is It Time To Reconsider Privacy Rights in Third Party Records?

Here's the panel description:
In an era of data mining, where third party records can be accumulated and mined to produce a very detailed picture of one’s daily life, does the reasoning of landmark Supreme Court decisions defining the “third party doctrine” in privacy law still apply?
I'll be debating Greg Nojeim of the Center for Democracy and Technology; Suzanne Spaulding will moderate. I'll be taking the view that the Supreme Court's decisions are right and should be retained; check out my forthcoming article, The Case for the Third-Party Doctrine, forthcoming in the Michigan Law Review, for the details.

Tip Jar:

Uh-oh -- I just noticed that it seems like we've gotten a bunch of tips over the last few years in the Amazon tip jar (which I'd largely forgotten about), and I completely missed them.

This means I never properly thanked the tippers, and looking back over my account I can't even figure out whom the tips came from. Is that even supposed to be possible with Amazon? I assume so, but I'm not sure. If anyone can enlighten me about how I can identify and properly thank people, I'd very much appreciate it. In the meantime, if you gave a tip, many thanks, and I hope to be able to figure out how to thank you more personally.


Child Custody and Children's Unease with a Parent's Associates:

I'm not sure what the right answer ought to be here, but I thought it would be worth discussing; the case is Lowhorn v. Lowhorn, 2008 WL 2839485 (Ind. App. July 24). The trial court switched custody from mother's having primary physical custody (with father having visitation rights) and both parents having joint legal custody, to the father having sole legal and physical custody, with mother having visitation rights. At the time of the lower court hearing, the boy was nearly 14, and the girl was nearly 10. Here is the heart of one of the issues:

Mother also challenges the trial court's findings regarding her relationship with Galen, Mother's friend who transgendered from male to female. The trial court found:

19. Mother has consistently subjected the children to be publicly scrutinized and embarrassed by forcing them to regularly spend time with Mother's friend, a middle-aged male to female transgendered person.

20. Despite the children pleading with Mother that she not force them to be around this person, Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities.

21. [When] Father learned of Mother's behavior from the children and saw the harmful effects the same had on the children, he confronted Mother about the same.

22. During the confrontation, Mother admitted to the foregoing and promised she would never allow the children to be around her transgendered friend again.

23. Subsequently, [mother], also concerned about the children's discomfort and confusion with her transgendered friend, admits to taking the children to a therapist, Erin Hamilton, without consulting [father] or providing him with any information regarding the children's confusion prior to the children's disclosure to him.

24. Dr. Richard Lawlor stated in his custody evaluation that he did not think Diana's unilateral choice of therapist was appropriate due to concerns that 'the particular therapist involved may have an agenda that would not seriously consider realistic concerns of the children'.

25. However, Mother has continued to subject her children to these circumstances repeatedly, despite the children's and Father's pleading.' ...

Mother has had a platonic friendship with Galen for several years. Father described Galen as 'a super nice guy.' In August 2005, Father learned that Galen had transgendered from male to female. There was no evidence presented that Mother subjected the children to being seen with Galen while he was dressed as a female in restaurants or at the children's extracurricular activities. Moreover, the evidence demonstrated that the children's friends saw Galen while he was dressed as a female only one time when Mother and Galen picked the children up from Father's house.

Father testified that the children were 'embarrassed.' After Father confronted Mother about Galen, Mother agreed that she would not 'have the kids around ... Galen.' For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother's house for dinner two or three times a month.

The trial court's finding that 'Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children's extracurricular activities' is clearly erroneous. Rather, the evidence demonstrates that, after the children's concerns were brought to Mother's attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children's occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody....

Had the trial court made [the] determination [that the children's dicomfort 'flowed primarily from with themselves' and not from Father] and a determination that the children were adversely affected or their emotional development was significantly impaired, its legitimate findings, including the strong desires of the children, may have supported its conclusions thereon and the conclusions may have supported the Judgment.... [But in the absence of such findings, we] reverse the trial court's grant of Father's petition to modify custody and remand for proceedings consistent with this opinion.

I've written in the past about how considering certain factors in child custody decisions violates parents' First Amendment rights. But this is a more complicated case, because it involves not just the mother's right of intimate association (a constitutional right that has generally been recognized as to family relationships, and likely would be recognized as to relationships with close friends as well), but also the children's: The mother isn't just associating with Galen, but putting children in a position where they should associate with him.

And while children surely don't have a legally enforceable right to refuse to associate with people whom both their parents choose -- just as I don't think they have a legally enforceable right to refuse to go to a church or a religious school that both their parents have chosen -- I'm not sure what the right answer ought to be when one parent offers one religion or set of friends, another offers another, and the children prefer one parent as custodian because of the religious practice or associations that this parent has. (I touch on this in note 203 of my article, but very briefly.)

This isn't quite what's going on here, since as best I can tell the children weren't specifically expressing a preference for father as custodian, but just apparently expressing a preference not to be around Galen when they're in their mother's custody. But I hope it shows the reason why I'm not sure what the right result ought to be.

So what do you think, not just under the somewhat peculiar facts of this particular case, but in others like it? Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people.

Should a court consider this? Under what circumstances? What role should the child's age play?

Note that the usual "best interests" standard doesn't seem terribly helpful here, because it's not clear just how a court is to weigh the possible harm (whatever it might be) stemming from the child's unease or embarrassment against the possible benefit (whatever it might be) stemming from the child's learning to tolerate people around whom the child would otherwise be uncomfortable. Rather, the question seems to me to be what extent we weigh the child's emotional preference -- the child's (whether younger or older child's) interest in living in the environment the child finds more comfortable -- independently of what we think would be in the child's long-term best interests.


Odd Reasoning:

In re Bobrowich, 2003 WL 230701 (N.Y. City Civ. Ct.), was one of the cases that barred a man from changing "an obvious male name" (Stephen) to "a name that is commonly used as a shortened version of the female name" (Steffi), at least absent evidence of transvestitism, transsexuality, or maleness of the name in "some other culture."

But there's more, because Stephen Michael Bobrowich wanted his name changed not just to Steffi Michael Bobrowich, but to Steffi Owned Slave, because "I feel that I have been treated as a slave my whole life, being paid minimum and treat as dirt I wish to show that I am." No dice, the court said, giving a longish discussion of the history of abolition of slavery in New York, and concluding:

Owing to the fact that slavery is illegal in the State of New York, the Court cannot change the name of the petitioner to something that reflects this illegal status and is therefore objectionable. As stated above, since the Court is being asked to issue an order changing the petitioner's name, it could be interpreted that the Court is endorsing this illegal status and reprehensible condition. In Application of Thompson, 82 Misc.2d 460, 369 N.Y.S.2d 278 (Civ Ct. N.Y. Co.1975) the court refused to allow the petitioner to assume the name “Chief Piankhi Ankinbaloye,” since by approving the name “chief” the court would be bestowing an apparent title of authority on the petitioner.

Now this just makes no sense. Having a last name of "Slave" doesn't reflect any illegal status, just as having the last name of "Painter" doesn't reflect one's status as a painter.

Nor does a court's approval of the name "Steffi Owned Slave" bestow an apparent title of authority. I'm not sure that even "Chief" would have this effect, but at least there are chiefs (presumably American Indian chiefs or people who hold this title in foreign countries) in the U.S., so someone could think "Chief" is indeed a real title. Everyone knows slavery is illegal in the U.S.; no-one would see this as "an apparent title" "bestow[ed]" by the government. Plus when slavery was legal, it in any event wasn't marked with "Slave" being used together with one's name.

Now I sympathize with the court's desire to play no part in what it sees as an offensive exercise, or one that's likely to cause needless friction and offense to the public. It may well be that some such limitations on official name changes are indeed proper. But the court's ostensible reasoning, it seems to me, is a pretty weak support for its conclusion.

Thanks to Timothy Sandefur for the pointer.


My Comment on Obama's Teaching Materials As Jim noted below, the New York Times ran a story today on Barack Obama's teaching experience at the University of Chicago Law School called Teaching Law, Testing Ideas, Obama Stood Apart (registration probably required). The Caucus: The New York Times Political Blog, is making the materials available for readers to examine for themselves, along with comments by Pam Karlan (Stanford), Akhil Amar (Yale), John Eastman (Chapman) and me in a post called Inside Professor Obama's Classroom. There will also be a further round of comments later today. You should cruise on over and post to the comment board there. Here is my initial take on what his teaching materials teach us:
While the course materials themselves do not tell us very much about Senator Obama, the candidate, what they do tell is about Obama, the teacher, is generally favorable. I was particularly intrigued by his 1994 syllabus on “Racism and the Law.” The materials assigned were balanced, including several readings by Frederick Douglass, who many modern race theorists have come to disparage as insufficiently radical (as Obama would know), along with an exchange between Harvard law professor Randall Kennedy on the one hand and Charles Cooper (who is now on Senator McCain’s advisory committee) and Texas law professor Lino Graglia on the other. All three essays appeared in the conservative/libertarian Harvard Journal of Law and Public Policy as part of a 1991 symposium on “The Future of Civil Rights Law” and were initially presented at the Federalist Society’s 1990 National Student Symposium held at Stanford. The articles were published during Obama’s third year as a law student so it is not surprising that he would be aware of them. And they would have been fresh at the time they were assigned.

I was struck by Obama’s list of possible discussion topics for his seminar. They comprehensively and concisely identified most of the issues of “race and the law” that were then being widely discussed. What particularly impressed me was how even handed were his presentations of the competing sides the students might take. These summaries were remarkably free of the sort of cant and polemics that all too often afflicts academic discussions of race. Were this not a seminar on “racism and the law” I doubt one could tell which side of each issue the teacher was on. And indeed, even knowing it was written by Senator Obama, one cannot be sure which side of each issue he really took. Whatever position he held, however, Obama could clearly see and dispassionately articulate the other side.

The exam question and answer keys manifest a keen comprehension of then-prevailing Supreme Court Due Process and Equal Protection Clause doctrine. There is no doubt that his students were taught “the law” (such as it was), not merely the teacher’s viewpoints. His exam questions were nicely designed to ferret out the student’s understanding, but also the cracks and fissures in the Supreme Court’s current approach to the Constitution. What they did not show, however, were any insights on the how he thought Supreme Court doctrine could be improved.

Indeed, if one is looking to these material to learn more about Senator Obama’s own views of either “racism and the law” or the Due Process and Equal Protection Clauses, one will be disappointed. He either was skillful at concealing his own take on these issues both in these materials and in the classroom (as reported by his former students) or he held no deep commitments on what one would think were matters of central concern to him. While this latter possibility would make him a flexible politician, it is bound to disappoint his most vehement supporters and detractors alike. In the end, while they confirm that the former president of the Harvard Law Review is a smart guy, and an exceptionally fair-minded teacher, they tell us little about his core beliefs on the very sensitive issues covered by these courses. Nor perhaps should we have expected them to.
You should check out the other posts.


Boy Named Sue:

So it turns out there is caselaw on this subject (despite what I said earlier), or at least the big picture. It doesn't have to do with the initial naming decision, as in the song. But if a boy wants to change his name to Sue, at least in some states, he may have to show that he is "a transvestite or a transsexual and, if a transsexual, whether he has undergone a sex change operation and is now anatomically and psychologically a woman" -- since otherwise such a change "would be fraught with danger of deception and confusion and contrary to the public interest" -- or at least that Sue "is regarded as a male name in this or some other culture."

Thus, changing your name from William to Veronica or from Stephen to Steffi is not allowed without such a showing; likewise Johnny to Sue. (Application of Anonymous, 587 N.Y.S.2d 548 (City Civ. Ct. 1992); (In re Bobrowich, 2003 WL 230701 (N.Y. City Civ. Ct. 2003).) But the trend for people who really are transsexuals -- which William-to-Veronica ultimately proved to be, but Stephen-to-Steffi apparently wasn't -- is to allow such name changes. (E.g., Matter of McIntyre, 715 A.2d 400 (Pa. 1998); Matter of Eck, 584 A.2d 859 (N.J. Super. 1991).)

Thanks to Timothy Sandefur for the pointer.


Questionable Use of Wikipedia by the Seventh Circuit?

Courts have cited Wikipedia over 300 times, and many of those cites are in my view just fine when the citation is for a tangential and uncontroversial matter. But the Seventh Circuit's use of Wikipedia in Rickher v. Home Depot, Inc., handed down Monday, strikes me as troubling.

The key issue as to one part of the plaintiff's lawsuit was the definition of "wear and tear." The plaintiff cited Webster's II New College Dictionary and Random House Webster's College Dictionary, which defined the term as “Depreciation, damage, or loss resulting from ordinary use or exposure” and “Damage or deterioration resulting from ordinary use; normal depreciation,” But the court disagreed:

Although it is true that dictionary definitions of “wear and tear” often employ the word “damage,” that does not mean that damage and “wear and tear” are synonymous. Wear and tear is a more specific phrase that connotes the expected, often gradual, depreciation of an item. See Wear and Tear,, last visited May 30, 2008.

It is a form of depreciation which is assumed to occur even when an item is used competently and with care and proper maintenance. For example, friction may erode a hammer’s head. In the normal use of a hammer for its designed task erosion is impossible to prevent, and any attempt to eliminate this erosion would make the hammer useless. At the same time, it is expected that the normal use of a hammer will not break it beyond repair until it has gone through a certain amount of use.

A subtle difference, but one the Seventh Circuit thought to be quite important, and that does indeed appear to me important to the course of litigation. (The question in this part of the lawsuit was whether Home Depot's Damage Waiver rental contract provision — for which one had to pay more money — added anything beyond what Home Depot already provided for no extra charge under its Wear and Tear provision. If "wear and tear" was roughly synonymous with "accidental damage" but not through "misuse or abuse," then the Damage Waiver might be seen as pointless, and offering it for money might then be seen as a deceptive business practice under Illinois law. If the "wear and tear" was a narrower term than "accidental damage [without] misuse or abuse," as the court concluded, then the Damage Waiver would give the customer something, and offering it for money wouldn't be a deceptive practice.)

Now I strongly suspect that the judges cited the Wikipedia entry because it fit their preexisting understanding of what the phrase meant (an eminently reasonable mode of procedure for citations generally), so I doubt they relied on Wikipedia's wisdom to form their conclusion. Still, the parties obviously disagreed about the matter. The plaintiff's proposed definition was supported by dictionary entries (albeit shorter ones, which might have omitted important nuances). If the judges wanted to argue based on their experience, based on logic, or based on contrary lexicographic authorities — including, for instance, the use of the phrase in other sources — that's fine, and they did that in some measure. But they cited Wikipedia as the lead authority supporting their conclusion, and as the source for their important and controversial definition; and this strikes me as troubling.

First, there does seem to me to be a serious risk of manipulation by the parties in this sort of situation. The quoted part of the definition was added on Aug. 31, 2005, when the case was in progress at the district court. I have no reason to think that the change was made by anyone associated with the litigants (and the Wikiscanner check reveals nothing tell-tale, even when I check all changes from that IP address), but neither can we be sure, I think, that no such manipulation took place. And while it's important not to overestimate the risk of manipulation here — as I pointed out, the judges are likely relying on Wikipedia to support their preexisting understanding of this quite common term, rather than as an expert source that would provide such an understanding — there does seem to be some danger here. It seems possible that the judges, who after all quoted the definition as authoritative, would indeed be influenced by nuances of the definition even if they already agreed with the definition's main thrust.

And, second, I don't see much reason to see why, even unmanipulated, Wikipedia should be a substantial authority here. We don't know who wrote the definition, so we can't rely on his knowledge. This doesn't seem likely to be the sort of definition that would attract a great deal of attention and review in case of error, so that we can rely on a possible "wisdom of crowds." Dictionaries and encyclopedias aren't perfect, and I know there are arguments that Wikipedia is on balance roughly as accurate as the Encyclopedia Britannica (as well as arguments in response). But it does seem to me that, at least until such rough equivalence of Wikipedia and other sources is further demonstrated, courts should rest their decisions about important and controverted matters on sources — such as dictionaries, technical dictionaries, or encyclopedia entries — that at least have some more indicia of likely expertise.

Again, I should stress that for tangential and uncontroversial matters, Wikipedia may be quite good enough. Federal employees' time isn't unlimited, and tracking down authoritative sources to demonstrate the colorfulness of Polish boxer Andrew Golota (to give an example from another Seventh Circuit case, which cited Wikipedia to support such an assertion) is probably not the best ways to spend that time. But for something like the controversy in this case, I would think that the lead authority should be something other than a Wikipedia entry.

For some earlier thoughts of mine on Wikipedia and court opinions, see here. Thanks to my friend Steve Newman for the pointer to the Rickher case.

UPDATE: Link fixed, with thanks to Ted Frank.


Philadelphia "Assault Weapon" Ban and One-Gun-a-Month Ordinance Preempted by Pennsylvania Law:

So held the Philadelphia Court of Common Pleas, in NRA v. City of Philadelphia, 2008 Phila. Ct. Com. Pl. LEXIS 159, decided June 30 but just put up on Lexis. I hadn't seem much coverage of the subject, so I thought I'd note it, though the decision was a month old.

The court held plaintiffs (which included individuals as well as the NRA) lacked standing to challenge to a city ordinance requiring owners "to report to police a lost or stolen firearm within twenty-four hours after the loss or theft is discovered," an ordinance aimed at enforcing court orders banning weapons possession in domestic abuse cases, and an ordinance temporarily banning gun possession by people found to have been "exhibiting conduct indicating a clear risk that they may inflict personal injury on themselves or others."


Fun Name Change Cases:

I have a Slate piece this morning on the subject. It's got 1069, III, Mary R., Misteri Nigger, Santa Claus (plus Santa Robert Clause), Koriander, They, and even Darren QX [pronounced "Lloyd"] Bean!. (I use the period after the exclamation point advisedly.) Check it out.

The article also prompted some more submissions from readers. Chris Jenkins and Kevin Wells e-mailed me about Sheppard v. Speir (Ark. App. 2004), involves litigation between two unmarried parents over a child's name (a topic I didn't cover in my Slate piece). The name was "Weather'By Dot Com Chanel Fourcast Sheppard," selected by the mother; the father, a TV weatherman, sued for custody of the child, got it, and tried to change the name to Samuel Charles Speir. The question was whether Samuel Charles Speir was so unusual a name that it should be rejected.

No, wait, let me check my notes. OK, the question was about Weather'By Dot Com Chanel Fourcast, and the appellate opinion provides this excerpt from an exchange between the trial judge and the mother:

The Court: I simply do not understand why you named this child — his legal name is Weather'by Dot Com Chanel Fourcast Sheppard. Now, before you answer that, Mr. — the plaintiff in this action is a weatherman for a local television station.

Sheppard: Yes.

The Court: Okay. Is that why you named this child the name that you gave the child?

Sheppard: It — it stems from a lot of things.

The Court: Okay. Tell me what they are.

Sheppard: Weather'by — I've always heard of Weatherby as a last name and never a first name, so I thought Weatherby would be — and I'm sure you could spell it b-e-e or b-e-a or b-y. Anyway, Weatherby.

The Court: Where did you get the "Dot Com"?

Sheppard: Well, when I worked at NBC, I worked on a Teleprompter computer.

The Court: All right.

Sheppard: All right, and so that's where the Dot Com [came from]. I just thought it was kind of cute, Dot Com, and then instead of — I really didn't have a whole lot of names because I had nothing to work with. I don't know family names. I don't know any names of the Speir family, and I really had nothing to work with, and I thought "Chanel"? No, that's stupid, and I thought "Shanel," I've heard of a black little girl named Shanel.

The Court: Well, where did you get "Fourcast"?

Sheppard: Fourcast? Instead of F-o-r-e, like your future forecast or your weather forecast, F-o-u, as in my fourth son, my fourth child, Fourcast. It was --

The Court: So his name is Fourcast, F-o-u-r-c-a-s-t?

Sheppard: Yes....

The Court: All right. Now, do you have some objection to him being renamed Samuel Charles?

Sheppard: Yes.

The Court: Why? You think it's better for his name to be Weather'by Dot Com Chanel ... Fourcast, spelled F-o-u-r-c-a-s-t? And in response to that question, I want you to think about what he's going to be — what his life is going to be like when he enters the first grade and has to fill out all [the] paperwork where you fill out — this little kid fills out his last name and his first name and his middle name, okay? So I just want — if your answer to that is yes, you think his name is better today than it would be with Samuel Charles, as his father would like to name him and why. Go ahead.

Sheppard: Yes, I think it's better this way.

The Court: The way he is now?

Sheppard: Yes. He doesn't have to use "Dot Com." I mean, as a grown man, he can use whatever he wants.

The Court: As a grown man, what is his middle name? Dot Com Chanel Fourcast?

Sheppard: He can use Chanel, he can use the letter "C." ...

The court of appeals finished with, "we hold that the trial court did not err in determining that it was in the child's best interest to change his name."

Robert Schwartz also mentions professional comedian Woody Volcano Viagra, but this sporting event I'm running here operates on a strictly amateur basis.

UPDATE: From Patricia Reardon comes the case of Romanceo Sir Tasty Maxibillion. Romanceo -- er, Adrian Scott Williams -- lost, because he was a felon and the state persuaded the court that its "legitimate need to identify Williams by his current name constituted sufficient cause ... to deny Williams' petition."



More from Judge Powell, here in Georgia, F. & A. Ry. Co. v. Sasser, 61 S.E. 505 (Ga. App. 1908):

“Obvious” is a pretty strong sounding word. Its chief juridic employment, so far as my observation goes, is by judges of courts of review, who generally pronounce obvious those propositions (evolved, perhaps, with many concealed misgivings) which they are able to support with but sparse array of precedent and which they are unwilling to put forth as an original dictum without the supporting influence of some strong, impressive, faith-bearing word; for a proposition weak in substance is oft aided in appearance by the strength of sonancy, and “obvious” is a sonant word.

The Georgia bench seems to be quite the source of linguistic innovation, importation, and discussion, from "obvious" to "autoptic proference" to "defamacast" to "chutzpah."


The War on Terror and Measuring the Threat: I've been enjoying the Opinio Juris blog debate on Ben Wittes's new book, Law and the Long War. I'm almost done with the book, which I have found a really excellent read: As with all of Wittes's work, it is thoughtful, balanced, and independent. But before posting some substantive response to the book, I wanted to flag a dynamic that I think is driving both the book and the blog responses to it: Assessments of the terrorist threat.

  My sense is that each person's assessment of the terrorist threat heavily influences where they come out on what measures the government should take in the war on terror. At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

  The big difference comes in assessing the terrorist threat. Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take.

  At the opposite end, the civil libertarian critics of the Bush Administration tend to see the threat as relatively modest in the short to medium time horizon. Al Qaeda can be dangerous, sure, but they're no more dangerous than lots of other threats the country faces. Al Qaeda is just a few dozen people, and they can't threaten the county in any real way. And even though they want weapons of mass destruction, the chances that they would succeed in a way that causes many thousands or millions of U.S. casualties is actually relatively remote. To believe otherwise is to fall for the Administration's fear-mongering.

  The different assessment of the threat explains why the two sides of the debate often talk past each other. To those who see the threat as grave, it is inconceivable that some would insist on playing by Marquis of Queensbury rules and be more focused on world opinion than the threat to American lives. To those who see the threat as modest, on the other hand, it is inconceivable that some would ignore the rule of law and recklessly injure our standing in the world. Each side tries to optimize social welfare based on its assessment of the threat, and each side thinks the other is shockingly uninterested in that goal.

  Of course, assessments of the threat are often not entirely rational. They follow instead from a set of ideological and psychological views that make people more or less willing to see the threat as grave or modest. But I do think that many of the reactions presuppose a particular threat level, and we could perhaps make some progress on the legal questions if we were able to reach some agreeement on threat assessment.

Tuesday, July 29, 2008

Interesting Tidbit from the Times Story on Obama at U. Chicago:

Soon after [he lost his Congressional race in 2000], the faculty saw an opening and made him its best offer yet: Tenure upon hiring. A handsome salary, more than the $60,000 he was making in the State Senate or the $60,000 he earned teaching part time. A job for Michelle Obama directing the legal clinic.

Given Obama's obvious talents, I'm hardly going to gainsay Chicago's offer. Indeed, I think that there should be room on a law faculty [especially, at schools where, unlike Chicago, much of the "scholarship" produced by the faculty is pedestrian at best] for incredibly gifted people who aren't especially interested in writing law review articles, if they can make sufficient contributions to the law school in other ways.

But given Chicago's reputation as the most hardcore of legal academic institutions; and given that Chicago is one of the few law schools that is (admirably) known for having strict tenure standards, and actually has denied tenure to some rather impressive scholars; and given that I've heard Chicago professors say (as of the mid-90s, a bit before the relevant offer) that there was a firm consensus on the faculty that they would never hire anyone who didn't meet the highest scholarly standards, regardless of other considerations; and given that Obama had published no legal scholarship whatsoever at this point; this is a bit surprising.


Obama as a Law Teacher.--

The New York Times has a good article on Barack Obama's time teaching at the University of Chicago Law School.

But Mr. Obama’s years at the law school are also another chapter — see United States Senate, c. 2006 — in which he seemed as intently focused on his own political rise as on the institution itself. Mr. Obama, who declined to be interviewed for this article, was well liked at the law school, yet he was always slightly apart from it, leaving some colleagues feeling a little cheated that he did not fully engage. The Chicago faculty is more rightward-leaning than that of other top law schools, but if teaching alongside some of the most formidable conservative minds in the country had any impact on Mr. Obama, no one can quite point to it.

“I don’t think anything that went on in these chambers affected him,” said Richard Epstein, a libertarian colleague who says he longed for Mr. Obama to venture beyond his ideological and topical comfort zones. “His entire life, as best I can tell, is one in which he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings.”

Mr. Obama had other business on his mind, embarking on five political races during his 12 years at the school. Teaching gave him satisfaction, along with a perch and a paycheck, but he was impatient with academic debates over “whether to drop a footnote or not drop a footnote,” said Abner J. Mikva, a mentor whose own career has spanned Congress, the federal bench and the same law school.

Douglas Baird, another colleague, remembers once asking Mr. Obama to assess potential candidates for governor.

“First of all, I’m not running for governor, “ Mr. Obama told him. “But if I did, I would expect you to support me.”

He was a third-year state senator at the time. . . .

For all the weighty material, Mr. Obama had a disarming touch. He did not belittle students; instead he drew them out, restating and polishing halting answers, students recall. In one class on race, he imitated the way clueless white people talked. “Why are your friends at the housing projects shooting each other?” he asked in a mock-innocent voice.

A favorite theme, said Salil Mehra, now a law professor at Temple University, were the values and cultural touchstones that Americans share. Mr. Obama’s case in point: his wife, Michelle, a black woman, loved “The Brady Bunch” so much that she could identify every episode by its opening shots.

As his reputation for frank, exciting discussion spread, enrollment in his classes swelled. Most scores on his teaching evaluations were positive to superlative. Some students started referring to themselves as his groupies. (Mr. Obama, in turn, could play the star. In what even some fans saw as self-absorption, Mr. Obama’s hypothetical cases occasionally featured himself. “Take Barack Obama, there’s a good-looking guy,” he would introduce a twisty legal case.) . . .

Because he never fully engaged, Mr. Obama “doesn’t have the slightest sense of where folks like me are coming from,” Mr. Epstein said. “He was a successful teacher and an absentee tenant on the other issues.”

Because my daughter, who is doing an internship at the Chicago Law Library, recently made copies of Obama's course evaluations for the Communications Office at the Law School, I sort of expected that a story like this was coming. The Law School then releases course evaluations to curious outsiders only with permission of the instructor. [This paragraph has been corrected to reflect more detailed facts.]

The Times blog has his syllabi and exams as well, and our own Randy Barnett will be commenting on them on Wednesday.


Obama at Chicago:

The NYT reports on Barack Obama's time teaching at the University of Chicago. Of particular interest, the article includes links to a syllabus and several exams from his classes.

UPDATE: Brian Leiter comments on the story here.


Google Is Your Friend:

A commenter on the "Suppression of Homosexuality-Related Speech" thread writes:

Is the ACLU defending students rights to wear shirts which read "Be happy, not gay"?

What if a student wanted to wear a shirt which stated "Be Ashamed, Our School Embraced What God Has Condemned"?

What about if a wedding photographer decides not to photograph a same-sex "marriage" ceremony?

What about if a dating service decides not to offer same-sex dating services?

What if a religious organization refuses to rent its property for same-sex "marriage" ceremonies?

What if businesses in Colorado wish to put up posters that list Biblical prohibitions against homosexuality?

Where is the ACLU on these cases? Or do First Amendment rights only flow in one direction?

Naturally, different organizations have different views of the scope of constitutional rights. Some might, for instance, see refusals to rent property as covered by the First Amendment or some other provisions; others might not. One can certainly fault groups for taking a view of constitutional rights that you think is mistaken — I've certainly faulted the ACLU in the past on these grounds — but it seems to me that one needs to do so with some explanation for why your view is right and theirs is wrong, rather than just based on an assumption that this is so. (One should also recognize that different ACLU chapters run their own show in large measure, and different ACLU officials have different views. For instance, ACLU President Nadine Strossen has prominently condemned some of the excesses of workplace harassment law as applied to speech, and might well opt to support businesses' First Amendment rights to put up posters with anti-gay speech; but the ACLU of Colorado might well take a different view.)

But beyond that, it helps to do some Googling: A Google search for aclu "be happy not gay" reveals this item from the Alliance Defense Web site (among many others):

ACLU opposes school in "Be Happy Not Gay" T-Shirt case

The AP reports on The Rockford Register Star (2.19.2008): "The American Civil Liberties Union has joined a Naperville high school student in her fight to wear a T-shirt that expresses opposition to homosexuality on moral grounds."

This is an ADF suit. View ADF press releases and documents here.

Again, I'm happy to agree that the ACLU gets things wrong by my lights in many cases. But we should be careful before making casual, unresearched assumptions about what the ACLU's position (or other groups' position) must be.

UPDATE: A commenter argues that the ACLU of Illinois' support for the "Be Happy, Not Gay" student was inadequate; but while the ACLU brief was termed a brief in support of neither side, the Alliance Defense Fund knew what it was talking about. In particular, as the ACLU brief makes clear, the ACLU took the view that the school harassment policy supposedly covered the T-shirt was unconstitutionally overbroad (p. 22), and that the students' plan of wearing the "Be Happy, Not Gay" shirt the day after the pro-gay-rights Day of Silence would not constitute harassment and thus would be constitutionally protected (pp. 20-21).

The ACLU opposed the student's request for a broader injunction allowing him to engage in unspecified speech opposed to homosexuality. But as to wearing the "Be Happy, Not Gay" shirt (which is what the commenter initially mentioned) in response to the Day of Silence event, the ACLU was pretty solidly in favor of the student.



A funny passage from Morse v. State, 72 S.E. 534 (Ga. App. 1911) (Powell, J.):

The first assignment of error is that the court erred in charging the jury as follows: “Evidence may be autoptic proference.” Error is assigned as to this charge on two grounds: (1) That the statement is abstractly incorrect; and (2) that it is misleading. Considering these points in reverse order, we may say (to borrow a Hibernicism from the private vocabulary of an ex-justice of the Supreme Court of this state) that the language excepted to is neither leading nor misleading.

As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, § 1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while “autoptic” is a good word, with pride of ancestry, though perhaps without hope of posterity, the word “proference” is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This court is rather liberal in allowing the judges on the trial benches the privilege of big words....

Now, lest our manner of treating this exception be regarded as a reflection upon the very able judge of the superior court whose language is under review, let us hasten to explain that the language is all right -- that to quote the excerpt alone does him injustice. During the progress of the trial, certain bottles and their contents had been introduced in evidence and were given the jury for their consideration, and the necessity was upon the judge of explaining to the jurors what use they could make of this class of testimony. As to such evidence the older writers used the phrase “real evidence”; but Professor Wigmore in his wonderful treatise, has pointed out that this is not an accurate expression, and has coined a new phrase, “autoptic proference,” to express it. Following Wigmore, Judge Felton used this expression, and then most clearly explained and illustrated to the jury, in plain, simple, homely language, just what the big words mean.

I particularly like the phrase "a good word, with pride of ancestry, though perhaps without hope of posterity."



To my surprise, this is a fairly well-established legal term in Georgia, with 18 references -- the earliest in 1962 and the most recent earlier this month.

The term is the Georgia courts' attempt to avoid the conceptual difficulty of deciding whether radio and television broadcasts should be labeled "libel" or "slander." Outside broadcasting, libel has traditionally referred to defamation by writing, pictures, or symbolic displays, and "slander" to defamation by speaking or some other sounds. Historically, the plaintiff had a harder time prevailing in civil slander cases than in civil libel cases; in an era where criminal libel prosecutions were common, libel was criminally punishable but slander generally was not; and more generally, slander, being evanescent, was generally seen as less harmful than libel. Defamation in broadcasting tended to consist of spoken words (though of course defamation on television could involve a writing), so it sounded like slander; but it had a large audience, so it sounded like libel. Different states pigeonholed broadcasting defamation in one or the other category, but Georgia decided to solve the problem by coining a new term.

So use it wisely, which is to say not at all outside Georgia. But don't be surprised if you hear it.


"World to End; Women, Minorities, Hardest Hit:"

Not from The Onion:

Climate change is no longer just an environmental issue. It's now an issue of race, according to global warming activists and policy makers. "It is critical our community be an integral and active part of the debate because African-Americans are disproportionately impacted by the effects of climate change economically, socially and through our health and well-being," House Majority Whip James Clyburn, D-S.C., said July 29.

As a substantive matter, poorer people are of course more vulnerable to all sorts of economic shocks than are wealthier people--including shocks caused massive regulation on behalf of environmental causes.


Feedback from Those Who Transferred to Higher-Ranked Law Schools: Every summer, several hundred law students finish their 1L year and apply to transfer to other law schools. In many cases, their goal is simply to get into a higher-ranked institution to help their career prospects. I'm sure many VC readers have been there.

  So here's a request: If you are a current or former law student who transferred to a higher ranked school to help your career prospects, please consider describing your experience in the comment thread. I'm particularly interested in knowing whether you are glad you transferred; whether the new school was what you expected; and whether you think the decision to transfer helped or didn't help your career prospects.

  I also welcome any detail you're comfortable giving about the school you transferred to or from (or other relevant bio information) to help readers in that boat today get some context. But I leave that up to individual commenters. Thanks!

Western Wall Note Controversy:

Sen. Obama, in response to the controversy over Israeli newspapers' publication of the note he placed in the Western Wall:

Asked what he wrote, Obama declined to answer, saying it was a private conversation between him and God.

The Maariv newspaper's response, prompted by the apparently intense criticism of its decision to publish the note:

"Obama's note was published in Maariv and other international publications following his authorization to make the content of the note public. Obama submitted a copy of the note to media outlets when he left his hotel in Jerusalem. Moreover, since he is not Jewish, there is no violation of privacy as there would be for a Jewish person who places a note in the wall."

UPDATE: Zvika Kreiger at The New Republic's The Plank blog alleges that Maariv never made any such assertion:

Yesterday, I posted an item about an accusation from Israeli newspaper Ma'ariv that the Obama campaign had leaked a copy of his Western Wall note to the foreign press (rather than Ma'ariv having bought it from some yeshiva kid who stole it out of the wall). After some additional reporting last night, I noted that the story sounded a bit fishy--not only has Ma'ariv not offered any tangible evidence to supprot this claim, but they also have only made the claim via a spokesman to various Israeli papers rather than printing the accusation in their own paper.

I just got off the phone with a Ma'ariv spokesman who says that the accusation is "completely false," and that he has no idea who these papers were quoting from Ma'ariv. "No official spokesman for Ma'ariv told this to any of the papers." I've got some calls in to these papers to find out where they got the quote. (I'll update here when I hear back.) He told me definitively that "the Obama campaign did not give us a copy of the letter or approve it for printing."

Either there's a huge snafu somewhere (or maybe more than one), or someone is lying. The Maariv's spokesman's response, as reported by The Plank, is very hard to reconcile with Haaretz's statement that "Ma'ariv issued a response Sunday" (the response being the one I quoted above). Either Maariv issued such a response or it didn't, and it's the sort of thing that it seems unlikely Haaretz would make up. But it does sound like someone is making something up somewhere (again, unless there's a very big misunderstanding); fortunately, I expect that the publications' reputations are on the line to the point that some evidence will emerge.

FURTHER UPDATE: A Washington Post blog now quotes Maariv as officially stating that Obama's statement was correct, and that no authorization was received. But how did Haaretz state the contrary? Seems like a major blunder on the part of one of those newspapers (or maybe both).


A Rule Versus the Right Rule Bleg:

A common legal concept in the abstract is that sometimes it is necessary to have "a rule" rather than the "right rule" from the standpoint that being able to coordinate around some rule is more important than a perfect rule. Can anyone point me to a case where a court explicitly or implicitly invokes this principle; even better, where the court invokes this principle and there is a dissent.


"Last Lecture" a Lesson in Great Teaching:

Charles Lipson of the University of Chicago has an appreciation of Randy Pausch as to how the last lecture itself exemplifies the qualities of great teaching (not to mention why so many of us find teaching such a rewarding life's mission). One thing that always struck me as sort of unusual about Pausch's "last lecture" was the use of Powerpoint to give such personal reflections.

In a similar vein, there's a neat NBER paper by Scott E. Carrell and James E. West on what makes a good professor measured by the impact of professor quality on student learning. The results are somewhat surprising. Here's the abstract (unfortunately NBER papers are limited access):

It is difficult to measure teaching quality at the postsecondary level because students typically "self-select" their coursework and their professors. Despite this, student evaluations of professors are widely used in faculty promotion and tenure decisions. We exploit the random assignment of college students to professors in a large body of required coursework to examine how professor quality affects student achievement. Introductory course professors significantly affect student achievement in contemporaneous and follow-on related courses, but the effects are quite heterogeneous across subjects. Students of professors who as a group perform well in the initial mathematics course perform significantly worse in follow-on related math, science, and engineering courses. We find that the academic rank, teaching experience, and terminal degree status of mathematics and science professors are negatively correlated with contemporaneous student achievement, but positively related to follow-on course achievement. Across all subjects, student evaluations of professors are positive predictors of contemporaneous course achievement, but are poor predictors of follow-on course achievement.


Senator Ted Stevens Indicted.--

One of the country’s leading pork-barrel politicians, Senator Ted Stevens (R-Alaska), has been indicted on corruption charges, CNBC reported at 12:50pm.

Interestingly, [initially] CNBC did not mention what party he was from[, though in updates a couple of minutes later they did mention that he was a Republican.]

UPDATE: More here. The Republican primary is on Aug. 26.

2d UPDATE: Remember that Stevens was the one who explained the internet to all of us:

They want to deliver vast amounts of information over the Internet. And again, the Internet is not something that you just dump something on. It's not a big truck. It's a series of tubes. And if you don't understand, those tubes can be filled and if they are filled, when you put your message in, it gets in line and it's going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.

I wonder whether Stevens was getting some money stuffed into his tubes in return for all those earmarks.

BTW, the grand jury indicted Steven on 7 counts.


"Sex Bias Seen at Justice Dept.,"

reads a front page headline in the L.A. Times print version. But the story says nothing about bias against women or against men, which is the standard understanding of the phrase "sex bias." Rather, the story discusses what the electronic version correctly labels "sexuality bias" -- discrimination by the Justice Department based on perceived sexual orientation.

It's true that sexual orientation discrimination is in a sense bias based on sex, in that it is a bias based on one's belief about the kind of sex that other people are having, and based on the sex of the other people's sexual partners. Yet "sex bias" has a familiar meaning to the reading public, and that meaning is discrimination against men or women, not against gays or lesbians. And while I realize headline writers have to fit everything in a fixed space, and "sex" is shorter than "sexuality," still having a headline that fits doesn't justify an outright mischaracterization of what's going on.

I should say that if Monica Goodling and others did discriminate against prosecutors based on the prosecutors' perceived homosexuality, that would be quite wrong. It wouldn't be a violation of federal antidiscrimination statutes, which don't cover sexual orientation, and it probably wouldn't be a violation of the Constitution (I set aside for now the question of precisely how probable that is). Still, it would be an unwise and unfair basis for choosing employees.

Yet unwise and unfair as it would be, calling it "sex bias" is simply inaccurate, given the conventional meaning of that phrase. And it also makes the allegation more serious than it is: Sex discrimination is a violation of federal antidiscrimination statutes, and pretty clearly of the Constitution as well. (This might not be so for high-level appointees, such as the chief U.S. Attorney in each district, but it would be so for the lower-level employees, one of whom was mentioned in the story.)


Debating Law and the Long War:

Over at its fancy new digs, Opinio Juris is hosting a discussion on Benjamin Wittes' new book, Law and the Long War. In addition to the OJ regulars, participants also include Marty Lederman, Steve Vladeck, Bobby Chesney, and Wittes himself, among others. So far it looks quite good (as does Wittes' book, which I just started), so check it out.


SG Seeks Kennedy Rehearing:

The Solicitor General's office has joined the state of Louisiana in requesting reconsideration of the Supreme Court's decision in Kennedy v. Louisiana, in which the Court held the death penalty for child rape to be unconstitutional. This is particularly interesting because the SG did not participate in the case initially, as the office had overlooked the fact that the constitutionality of a federal law -- in particular a provision of the UCMJ providing for the death penalty in cases of child rape -- could be affected by the Court's decision. Lyle Denniston has more details and a link to the motin at SCOTUSBlog here.


Rewriting a State Constitution for Partisan Advantage:

When I first heard about the ballot initiative sponsored by Reform Michigan Government Now, I assumed it was just an aggressive effort to make several progressive state constitutional reforms in one fell swoop. Then I looked into it a little more — largely because I was curious about the proposed revisions to the composition of the state judiciary — and was a bit taken aback. Among other things the plan would eliminate two seats on the State Supreme Court and several more on the state Courts of Appeals, but increase the number of state trial judges. Each of these reforms would operate so as to increase the proportion of Democrat-appointed judges on the bench, which is, to the least, a bit curious. Then a strategy document prepared for initiative proponents was discovered, and it all fit into place. The ballot initiative is, at heart, a stealth effort to reform the Michigan state constitution, and shift control of the state courts, for partisan advantage. I discuss the plan in more detail in this NRO column.

There's one interesting development I do not discuss in the column. Initiative opponents are mounting a legal challenge to keep the initiative off the ballot. Among other things, they argue that there is no way to accurately summarize the 19,500-word initiative in 100 words, as required by state law. Initiative proponents defend their efforts, arguing among other things, that state judges should not hear the case because they have a "conflict of interest" due to the fact that some state judges would lose their positions inf the measure passes. What an ingenious argument to evade judicial review!

[Typos fixed — ah the dangers of blogging in an airport.]


Tips for Note-Taking During Research for a Law Review Article?

A student of mine had a great question:

This may seem really obvious, but I was wondering if you had any advice on note-taking methodology in connection with paper research. I find it really helpful to take notes/read more "actively", but am not sure its prudent to approach the material the same way I approached reading/briefing for classes. As I haven't yet pinned down the essence of my claim at this stage, I've just been writing down the holdings/reasoning/ambiguities I think could potentially be relevant, as well as some of the more promising citations in each text. Does that sound like a reasonable tactic? Or, in your experience, is there any particular approach that you feel best maximizes the value of your research and reading of cases?

I have some general thoughts, but the trouble is that I'm now many years removed from my first law review article research tasks, and while I've thought enough about other aspects of academic legal writing to overcome this handicap, I haven't thought enough about the specific task of note-taking during research. I'd therefore love to tap the collective wisdom of our readers who might have more immediate experience with this. What note-taking strategies have worked well for you when you're trying to read, digest, and summarize for your future reference a large and new body of law and of scholarship, with an eye towards writing your own law review article?


Best Parenthetical Ever: From a New York Times story on the decline of the cassette player:
Popping a cassette in the car tape deck is also passé. Only 4 percent of vehicles sold in the United States during the 2007 model year had factory-installed cassette players, according to Ward’s Automotive Yearbook. As recently as the 2005 model year, 23 percent of vehicles had them.

Given that the median age of a car in the United States is nine years old, said Alan K. Binder, the editor of Ward’s yearbook, it is most likely that the majority of the 200 million cars and light trucks on America’s roads have cassette players (though how many have had the same Bob Seger tape lodged unplayable in them for 11 years is impossible to determine).

Heller II suit is filed:

On Monday, Dick Heller and two other plaintiffs filed suits against the District of Columbia's revised gun laws. The complaint challenges the following provisions of D.C. law:

The ban on all self-loading handguns (about 3/4 of handguns sold in the U.S.) by defining them as "machine guns."

Allowing registration only upon the payment of an unspecified fee for ballistic testing of the handgun.

The self-defense provision in the D.C. law which allows a gun in the home to be loaded, unlocked, and rendered functional only "while it is being used to protect against a reasonably perceived threat of immediate harm to a person within the registrant’s home." The exception is too narrow, and burdens the right of self-defense.

The complaint further alleges that the aforesaid provisions are not only violations of the Second Amendment, they exceed the non-infinite home rule powers which Congress delegated to the District's city council.
There are some other problems with the new D.C. law. Handgun possession is allowed only for a person who wants the handgun for home defense; it is illegal in D.C. to acquire a handgun for recreational target shooting, to practice marksmanship before enrolling in the military or joining a police department, or for lawful hunting Maryland or Virginia. The only time that a gun can be unlocked is when it being used for self-defense against an immediate attack; accordingly, it is illegal to remove the lock from an unloaded gun in order to clean the gun. The problem would be resolved by the requested relief of enjoining all enforcement of the gun lock law against defensive firearms.

Attorneys in the case are Stephen Halbrook and Richard Gardiner, of Fairfax, Virginia. They both been involved in firearms law and policy for three decades, and they are excellent lawyers. Halbrook has a 4-0 record as lead counsel in Supreme Court cases.


Monday, July 28, 2008

Suppression of Homosexuality-Related Speech:

Some pretty damning factual findings in this federal district court of opinion, issued after a bench trial. The court ultimately concluded that the school board violated the First Amendment, and that the speech at issue did not cause any substantial disruption nor was reasonably seen as likely to cause such disruption, a result that seems quite right under the facts and the relevant First Amendment cases (Tinker, Fraser, and Morse). Here are excerpts:

This case arose from events involving a homosexual student at Ponce de Leon High School on Friday, September 7, 2007. The twelfth-grade student, Jane Doe, reported to a teacher’s aide that she had been taunted by a group of approximately five middle school students because of her sexual orientation. The middle school students allegedly told Jane that “dykes,” such as herself, were “nasty,” “gross,” and “sick.” The teacher’s aide reported the incident to Principal David Davis.

At the end of the school day on the following Monday, September 10, 2007, Davis called Jane into his office. Davis asked Jane if she had told the teacher’s aide that she identified herself as a lesbian. Jane answered, “Yes.” Davis then asked, “Are you a lesbian?” Jane again answered, “Yes.” Davis counseled Jane that it was not “right” to be homosexual. He then questioned Jane about whether her parents were aware of her sexual orientation. When Jane answered in the negative, Davis asked Jane for her parents’ telephone number so that he could call them and inform them of her sexual orientation. Davis also instructed Jane to “stay away” from the middle school students or that he would suspend her. Jane left Davis’s office in tears.

Jane was not present at school the following day because her sister had surgery. However, Davis’s rebuke of Jane on the basis of her sexual orientation became known to the student body. A false rumor circulated that Jane was absent from school because Davis had suspended her for being homosexual. Numerous students expressed their support for Jane by writing “GP” or “Gay Pride” on their bodies, wearing t-shirts with messages supportive of gay rights, yelling “Gay Pride” in the hallways, circulating petitions to demonstrate support for gay rights, and creating signs with messages supporting homosexuals....

Davis began investigating what had come to be known as the “Gay Pride” movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.

In light of Davis’s prohibition of messages relating to the support and acceptance of homosexuals, Gillman sought clarification from the School Board about its own position on the matter. On November 2, 2007, Gillman and her cousin (who had previously been suspended by Davis), through legal counsel, sent a letter to the attorney for the School Board. The letter requested guidance on which phrases and symbols students could display at school without being disciplined. Specifically, Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro- Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”

By letter dated November 12, 2007, the School Board responded that none of the phrases, symbols, or images contained in the letter dated November 2, 2007, could be displayed by students at Ponce de Leon High School. The School Board justified its censorship on the ground that the expressions indicated membership in an “illegal organization” prohibited by School Board policy and were disruptive to the educational process. The letter cited students’ plan to walk out of the school assembly on September 12, as an example of the disruptive effect of the messages....

Although the School Board conceded in its answers to interrogatories and at trial that the messages and symbols at issue are not vulgar, lewd, obscene, plainly offensive, or sexually suggestive, Davis attempted to justify the ban on speech, in part, by contending that rainbow stickers and the phrases “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” and “I Support Equal Marriage Rights,” are sexually suggestive and immediately conjure images in children’s minds of people engaging in sexual acts.

Notwithstanding his obvious mis-characterization of the speech as sexual in nature, other evidence clearly suggests that the ban on speech was not motivated by Davis’s purported concerns about the sexual connotations of the speech. For example, during September 2007, a female student complained that a male student had dared another male student to offer her five dollars to “get in her pants.” Davis testified that he agreed that the conversation between the students was “far more sexually explicit” than the banned speech. Yet, Davis conceded that he did not warn the students not to discuss “heterosexual issues” at Ponce de Leon, nor did he investigate or even speak to the male students about the female student’s complaint. Davis also stated that he would not prohibit a male student from telling a female student that she is “cute” or that he wants to “date her,” but that he would ban “I Vote Pro-Gay.”

Nor were school officials concerned about students’ expressions of other political views at Ponce de Leon. While rainbows are banned at Ponce de Leon, Superintendent Griffin testified that swastikas are not. While “Equal, Not Special Rights,” and “God Loves Me Just the Way I Am” are prohibited, Davis and Superintendent Griffin stated that the Confederate flag is not. It is therefore apparent that the ban on speech at Ponce de Leon was motivated, not by school officials’ angst about political expressions at school, but by the hostility of school officials toward the particular message sought to be conveyed....

There’s a lot of bad behavior by the principal and the school board here, but the part that most struck me was that the principal “lifted the shirts of female students to verify that no such writings were present on their bodies.”

I should also note that if the principal’s argument is that pro-gay-rights speech is “sexually suggestive” and thus freely punishable by the school, then all speech that mentions homosexuality — for instance, arguments that the law ought not allow same-sex marriage, or that the military’s “Don’t Ask, Don’t Tell” policy is justified — would be equally unprotected, and should be equally prohibited.


A Nice Gift for Incoming or Soon-To-Be-Second-Year Law Students:

I thought I'd put up my periodic pitch for my Academic Legal Writing (3d ed. 2007), and repost the 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.

For reader reviews, see the Amazon page for the book. In my highly biased judgment, this 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


More on "Law Review Shenanigans":

In early June, I posted an item about "a faculty edited journal that basically accepted [my colleague Stephen Bainbridge]'s piece and then in fairly short order withdrew the acceptance, apparently with no justification, offering 'scrambled communications' as the only excuse." I didn't know the name of the journal, since Prof. Bainbridge hadn't posted it. I just received a message from my friend Ross Davies, who's a professor at George Mason and the editor-in-chief of the Green Bag, which turns out to be the journal involved:

Somehow (and strangely, since I am an irregular but frequent VC reader) I missed until just now your June 9 post on Law Review Shenanigans, This Time from a Faculty-Edited Journal. Having failed to speak when the post first went up, it might not be useful to chime in now when no one is listening. If you think it's worth it, though, you could quote me as follows:

Professor Bainbridge is quite right to be annoyed. He is also very kind to leave out the fact that the journal in question is the Green Bag, of which I am the editor-in-chief. I think, however, that it would be better to let the sun shine on (and the market respond to) the fact that the Bag treated an author shabbily. I just hope it doesn't scare off too many other good people. As I said, the Green Bag did treat Bainbridge poorly. All I can say in defense of the journal is that we good reasons for what we did — reasons that were purely internal to the Green Bag and had nothing to do with Bainbridge (a fine person and scholar, to the best of my knowledge) or his work (also fine). We'll do our level best not to make the same mistakes again. And the fact that the world — or at least a substantial slice of a relevant part of it — now knows of our capacity to be boorish should be a useful goad to better behavior in the future.

I thought this to be quite a gracious answer, which I'm happy to post.

Related Posts (on one page):

  1. More on "Law Review Shenanigans":
  2. Law Review Shenanigans, This Time from a Faculty-Edited Journal:

Newest Gallup Poll shows McCain insignificantly ahead.--

Yesterday the Gallup Tracking Poll showed Obama ahead by 9 points (49-40). Earlier today (Monday) that dropped to Obama ahead by 8 points (48-40). Both were of registered voters.

Now Gallup/USA Today released a new poll of LIKELY voters, showing a 4 point lead for McCain, his first lead in any major poll since early May.

The switch from registered to likely voters explains most of the difference.

Yet this jumping around does not inspire confidence in Gallup:

Republican presidential candidate John McCain moved from being behind by 6 points among "likely" voters a month ago to a 4-point lead over Democrat Barack Obama among that group in the latest USA TODAY/Gallup Poll. McCain still trails slightly among the broader universe of "registered" voters. By both measures, the race is tight.

The Friday-Sunday poll, mostly conducted as Obama was returning from his much-publicized overseas trip and released just this hour, shows McCain now ahead 49%-45% among voters that Gallup believes are most likely to go to the polls in November. In late June, he was behind among likely voters, 50%-44%.

Among registered voters, McCain still trails Obama, but by less. He is behind by 3 percentage points in the new poll (47%-44%) vs. a 6-point disadvantage (48%-42%) in late June.

Results based on the survey of 791 likely voters have margins of error of +/- 4 percentage points — so McCain's lead is not outside that range. Results based on the survey of 900 registered voters also have margins of error of +/- 4 percentage points.

Gallup editor Frank Newport tells Jill that "registered voters are much more important at the moment," because Election Day is still 100 days away, but that the likely-voter result suggests that it may be possible for McCain to energize Republicans and turn them out this fall.

Note that Obama's lead among even registered voters has dropped precipitously from 9% to 8% to 3% in data from Gallup added to Real Clear Politics since midnight Sunday night. Indeed, both the 8% and the 3% results were for polls taken the same three days surveying apparently different samples of the same population, registered voters — strange but not surprising, given the low response rates for most public opinion polls these days.


Phew, That's a Relief:

Sughrue said a 15-year-old was stabbed during the incident. He was taken to WakeMed and treated for non-life-threatening injuries. A police officer was also injured with a "significant" cut to his knee that he suffered during a chase. He was taken to Duke Raleigh Hospital for treatment and is expected to recover, Sughrue said.


Teaching and Research in Higher Education:

The Pope Center has a discussion among four economists on the question of whether teaching and research are substitutes, complements, or independent goods. Perhaps the most interesting entry is James Gwartney's. I hadn't thought of the issue this way before:

In my judgment, yes, there is a problem of balance between research and teaching in American colleges and universities. Most of the problem comes from the fact that government subsidies have undermined market forces.

By and large, the government subsidizes colleges, not students. Federal and state financial support, although based on the enrollment of each student, goes to the university, and the university administration allocates it. If the government actually subsidized students, the payoff from undergraduate teaching would be higher, because students would seek to spend their subsidy dollars at schools emphasizing undergraduate education and not at schools emphasizing research. It would also lead to more of the specialization that Dirk mentions, which makes a lot of sense.

In other words, the current public university system makes it very difficult for students to cast dollar votes for excellence in teaching.

If students go to a private school, they lose most of the government subsidy to higher education. And because of the expanding state support, it is now very difficult for private liberal arts schools to compete. These are the schools that have historically stressed the importance of quality teaching and interaction between students and teachers. I went to one of those schools in the early 1960s and got a good education despite my immaturity and my focus on other things. Today, there are fewer of those colleges, and the ones that still exist find it very difficult to attract faculty from the highly subsidized state schools. As a result, they are not nearly as attractive an option for students as they were 50 years ago.

I do think that research helps one become a better teacher, particularly at the graduate level. But the marginal payoff of research is low for most faculty members. The creative energies of those who are interested in tenure and larger raises are directed toward knocking out more articles, even if few read them. Would this be the case if the government subsidies followed the student and students were free to choose among colleges? I don't think so. Student dollars would go more toward good teaching and less toward esoteric research.


Law Review Articles That Are Actually Readable

(in their formatting, mind you -- I'm not promising anything about the content): HeinOnline contains PDFs of articles formatted just as they are on paper, and that are thus much more readable than the Lexis or Westlaw versions. Its collection also covers all the issues of most journals; Lexis and Westlaw tend to go back only to the 1980s for most journals (though they include older issues of a few publications).

I know UCLA law school has a subscription, which anyone with a UCLA IP address can access without the need for any special logon id; I expect lots of other law schools have the same. If you do have access to a subscription, use it -- you'll never want to go back.


Cell Phone Records Provide the Key to Catching Serial Rapist: The front page of today's Washington Post has a disturbing but remarkable story on how the police traced and identified the serial rapist who was targeting prostitutes in the DC area. The trick seems to have been the cell phone records. The rapist had made at least two calls to victims from a disposable cell phone that was registered with his home address, and a subpoena to the provider disclosed the address that let the police conduct surveillance of the rapist (including pen/trap monitoring) that clued them in to what he was doing and helped them stop the man before he raped again. Excellent police work.

My Legal Times article on Heller and the Enforcement of Rights by the Courts:

My article on the possible future impact of District of Columbia v. Heller came out in the Legal Times today. It can be found here (free registration unfortunately required). [UPDATE: The article can be accessed here without registration].

Here's a brief excerpt:

The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But the District of Columbia certainly isn’t leaping to implement that right.

After its defeat in District of Columbia v. Heller (2008), the D.C. Council responded by adopting new gun-control regulations that are only marginally less restrictive than the ones invalidated in Heller. Undoubtedly, the new regulations—and similar ones in other jurisdictions—will be challenged in court. It is the outcome of these future cases that will determine whether Heller has any truly significant impact.

History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.

To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.

The article builds on points I made in this series of posts. For another article outlining the highly restrictive nature of the new post-Heller DC gun regulations, see this piece by Jacob Sullum.


South Carolina Law Review Peer Review Pilot Program:

Sounds like an interesting and worthwhile project, though one that might be difficult to execute:

The South Carolina Law Review is pleased to announce the launch of a Peer Review Pilot Program for Volume 60. Because we believe the current system of legal scholarship publication may be improved by changing how articles are selected, our Pilot Program will explore the feasibility of article selection through peer review in the context of a major, general interest law review. More specifically, the South Carolina Law Review’s Pilot Program will employ the following procedure:

(1) Authors will submit manuscripts (i.e., finished drafts ready for publication, not working papers or incomplete drafts), addressing any area of law, to the Pilot Program specifically by emailing a cover letter and copy of the author’s manuscript to (see below for more details). Deadline for submissions to the Pilot Program is October 1, 2008.

(2) We will send all received manuscripts to volunteer peer reviewers for peer review. Each manuscript will be sent to at least one but more typically two anonymous peer reviewers, where each reviewer will have expertise in the area of law addressed by the manuscript. Not only will the author not know the identity of the reviewers, but also the identity of the author will not be disclosed to the reviewers, for the sake of focusing the evaluation on substantive merit rather than other factors. Peer reviewers will consist of legal practitioners, scholars, and judges. In the event that the volume of submissions to the Pilot Program makes peer review of all manuscripts logistically impossible or impracticable, the South Carolina Law Review editorial staff reserves the right to make an initial determination of which manuscripts will or will not be sent out for peer review. This initial screening by South Carolina Law Review’s student editors is a last resort and will be avoided if at all possible.

(3) Peer reviewers will provide feedback and recommendations to the editorial staff no later than December 1, 2008. Each reviewer will independently review the manuscript, paying special attention to the following factors: insight, timeliness, novelty, significance to the field, quality of analysis, scope of analysis, and appropriateness for inclusion in a general law review like the South Carolina Law Review. Each reviewer may also provide feedback on additional factors if he or she chooses.

(4) Based on careful consideration of the peer reviewers’ recommendations and the needs of the journal, the South Carolina Law Review editorial staff will choose whether or not to publish each manuscript. We may elect to reject a manuscript outright, accept a manuscript outright, or request the author to revise his or her manuscript in light of reviewer comments, with acceptance conditional on such revision or else the author’s convincing us that the revisions are not required.

(5) Accepted manuscripts will then enter the ordinary student-editing process, in which the South Carolina Law Review’s staff will edit manuscripts for grammar, style, citation format, and accuracy of quotations and facts. Each peer reviewed manuscript published in the South Carolina Law Review will be prominently marked as a peer reviewed piece....


If you wish to submit a manuscript to the Pilot Program, please email your manuscript to sclawreview [at] by October 1, 2008. Please include the words “Pilot Project” in the subject line of your email, and please provide a cover letter (1) clearly indicating your desire to participate in the Pilot Program and (2) providing the names of three people who might be appropriate peer reviewers for your manuscript, based on subject matter expertise. You may also provide names of people who you believe would not be able to review your manuscript objectively or fairly. Please also fill out this brief survey providing your opinion regarding the need or lack thereof for peer review in legal publishing.

Peer Reviewers

If you wish to volunteer as a peer reviewer, please contact the student Peer Review Editor for Volume 60, Dr. John P. Zimmer, at ZIMMERJP [at], providing the area or areas of law in which you have sufficient expertise to serve as a peer reviewer. Unless a particular volunteer peer reviewer requests otherwise, we intend to ask each reviewer to review no more than a single manuscript during the Pilot Program, since we recognize that your time is valuable.

If you do not wish to submit a manuscript or volunteer as a peer reviewer at this time, we would still like to hear your opinion regarding the need or lack thereof for peer review in legal publishing. Please take a moment to fill out this brief survey. Your response will help us achieve the Pilot Program’s primary goal: to improve legal publishing through the collective wisdom and experience of the entire legal community.


DOJ Inspector General Releases Monica Goodling Report: You can read the report here.

  UPDATE: Looking over the report, I think it's important to keep in mind the critical line between the use of political considerations in hiring for political positions and the use of political considerations in hiring for career slots. The former is of course okay; the latter is not. The report does note the difference, although the way the report is structured the two are sometimes presented together. (Also, while slots at OLC are technically career slots, I've always though that this is more a matter of form than substance: As a practical matter it seems that most OLC attorneys come in for Administrations they support and then leave when their side gets voted out.)

  ANOTHER UPDATE: Here's an example of the shenanigans that the report discovered:
A career attorney from the Department’s Criminal Division was detailed to the ODAG [Office of the Deupty Attorney General] in July 2005 for a short period to work on the Department’s Project Safe Neighborhoods initiative, as well as other issues such as anti-gangs initiatives, violent crime, and firearms.

In an October 2005 e-mail exchange, Sampson told William Mercer, who was the Principal Associate Deputy Attorney General at the time, that he thought highly of the candidate and supported the possibility of extending her detail to the ODAG for a longer period. Mercer replied that “Jan [Williams] says she’s a big D.” Sampson replied, “I’ve heard that – even so, she’s very strong.” Sampson told us that he wanted this attorney for an ODAG detail and did not care that she was a Democrat. Sampson told us he knew that the candidate supported the Project Safe Neighborhoods initiative, which was her initial assignment in the ODAG, and so her political affiliation did not matter to him. The candidate’s detail was extended several times, and she served in the ODAG until July 2007 when she became Counselor to the OLP Assistant Attorney General.

Elston told us, however, that either Williams or Goodling told him that they did not want to extend the detail because she was a Democrat. Elston said that the detailee’s supervisor told him that if the detailee left ODAG, he would “throw himself out the window.” Elston said he felt the same way about her. According to Elston, for a period of time the OAG would only extend the detail on a month-to-month basis, until Goodling grudgingly extended it for 6 months.
P. 53-54.

One Trillion Unique URLs:

A terafic milestone, according to Google's report,

[O]ur systems that process links on the web to find new content hit a milestone: 1 trillion (as in 1,000,000,000,000) unique URLs on the web at once!

How do we find all those pages? We start at a set of well-connected initial pages and follow each of their links to new pages. Then we follow the links on those new pages to even more pages and so on, until we have a huge list of links. In fact, we found even more than 1 trillion individual links, but not all of them lead to unique web pages. Many pages have multiple URLs with exactly the same content or URLs that are auto-generated copies of each other. Even after removing those exact duplicates, we saw a trillion unique URLs, and the number of individual web pages out there is growing by several billion pages per day.

So how many unique pages does the web really contain? We don't know; we don't have time to look at them all! :-) Strictly speaking, the number of pages out there is infinite — for example, web calendars may have a "next day" link, and we could follow that link forever, each time finding a "new" page. We're not doing that, obviously, since there would be little benefit to you. But this example shows that the size of the web really depends on your definition of what's a useful page, and there is no exact answer.

We don't index every one of those trillion pages — many of them are similar to each other, or represent auto-generated content similar to the calendar example that isn't very useful to searchers....

Thanks to Dan Friedman for the pointer.


Barack Obama Takes Big Lead in Polls.--

Barack Obama got a big boost this week in the Gallup Poll, jumping to a 9% lead in a poll of registered voters (49-40). In the Rasmussen Poll of likely voters, the difference is a smaller, but still substantial 5% (49-44).

MONDAY NOON UPDATE: Rasmussen's Tracking Poll released Monday morning now shows only a 3% difference (48-45).

The REAL CLEAR POLITICS combined average of recent polls is now 4.7%.

MONDAY 6PM UPDATE: Gallup has released yet another poll today, this one showing McCain insignificantly ahead among LIKELY voters.


The Continuing Relevance of Hayek's Critique of Conservatism:

My recent post on the continuing relevance of F.A. Hayek's critique of socialism brings to mind his critique of conservatism, much of which also remains relevant. Most of Hayek's work was focused on criticizing socialism and related left-wing ideologies. During his heyday (roughly form the 1930s to the 1960s), conservatism was a fairly marginal force in the intellectual world, while many perceived socialism as the wave of the future. Nonetheless, Hayek wrote a famous 1960 essay entitled "Why I am not a Conservative," some of which has continuing relevance as a critique of conservatism even today. In reading the essay, it's important to keep in mind that Hayek used the word "liberal" to denote something like what "libertarian" or "classical liberal" mean today. It is also worth noting that Hayek believed there were some important commonalities of interest between libertarians and conservatives, at least in the United States. Nonetheless, he also believed that conservatism has major shortcomings.

The word "conservatism" is a vague term that covers a wide range of ideas. Hayek's criticisms don't necessarily apply to every version of conservative thought. A few of his arguments are totally dated, and some perhaps were invalid even back in 1960. But several apply to various forms of conservatism that remain influential today. In particular, Hayek's criticisms of conservative for their excessive aversion to change, their attachment to discretionary government power, their willingness to use state power to enforce "moral" values, and their tendency towards "strident nationalism" all retain considerable force.

Hayek suggested that conservatives emphasize aversion to change at the expense of developing a clear alternative to left-wing progressivism:

Let me now state what seems to me the decisive objection to any conservatism which deserves to be called such. It is that by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments. But, though there is a need for a "brake on the vehicle of progress," I personally cannot be content with simply helping to apply the brake. What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move. In fact, he differs much more from the collectivist radical of today than does the conservative. While the last generally holds merely a mild and moderate version of the prejudices of his time, the liberal today must more positively oppose some of the basic conceptions which most conservatives share with the socialists.

This point does not apply to all forms of conservatism. For example, "religious right" conservatives clearly do have a theologically inspired "alternative to the direction we are moving." However, it does apply to the still-common "Burkean conservatism" which defines itself primarily by its support for tradition and opposition to rapid change. Hayek's claim that conservatives share important "basic conceptions" with socialists (or at least with statist liberals), also has great resonance in the age of "big government conservatism," a platform adopted by Republicans such as George W. Bush, and Mike Huckabee. By no means all conservatives fall into this category. But a good many do.

Hayek's claim that conservatives are excessively tolerant of discretionary authority in government is also relevant at a time when many conservatives have embraced the Bush Administration's assertion of virtually unlimited executive power:

Let me return, however, to the main point, which is the characteristic complacency of the conservative toward the action of established authority and his prime concern that this authority be not weakened rather than that its power be kept within bounds. This is difficult to reconcile with the preservation of liberty. In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. He believes that if government is in the hands of decent men, it ought not to be too much restricted by rigid rules. Since he is essentially opportunist and lacks principles, his main hope must be that the wise and the good will rule - not merely by example, as we all must wish, but by authority given to them and enforced by them. Like the socialist, he is less concerned with the problem of how the powers of government should be limited than with that of who wields them; and, like the socialist, he regards himself as entitled to force the value he holds on other people. [emphasis added]

Like the previous one, this criticism does not extend to all conservatives. But it does apply to a significant number of highly influential ones.

It is also difficult to dispute that many modern conservatives remain vulnerable to Hayek's criticism that they are overly eager to use the power of the state to impose their preferred "moral" values:

[T]o the liberal neither moral nor religious ideals are proper objects of coercion, while both conservatives and socialists recognize no such limits. I sometimes feel that the most conspicuous attribute of liberalism that distinguishes it as much from conservatism as from socialism is the view that moral beliefs concerning matters of conduct which do not directly interfere with the protected sphere of other persons do not justify coercion.

As I argue in this article, many social conservatives fail to see that the same shortcomings they see in government intervention in the "economic" sphere also apply to government regulation of "morals" and culture.

Finally, Hayek was on point in noting the connection between conservatism and nationalism, which he (correctly, in my view) viewed as a generally pernicious force:

Connected with the conservative distrust if the new and the strange is its hostility to internationalism and its proneness to a strident nationalism. Here is another source of its weakness in the struggle of ideas. It cannot alter the fact that the ideas which are changing our civilization respect no boundaries. But refusal to acquaint one's self with new ideas merely deprives one of the power of effectively countering them when necessary. The growth of ideas is an international process, and only those who fully take part in the discussion will be able to exercise a significant influence. It is no real argument to say that an idea is un-American, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots.

A great deal more might be said about the close connection between conservatism and nationalism . . . I will merely add that it is this nationalistic bias which frequently provides the bridge from conservatism to collectivism: to think in terms of "our" industry or resource is only a short step away from demanding that these national assets be directed in the national interest [by the government].

This point has all sorts of applications to conservative positions on trade, immigration, and other policy debates in the US. Certainly, it is reflected in assertions by many conservatives that foreigners and immigrants must be prevented from competing with "our" industries, taking "our" jobs, using "our" resources, and so on.

Outside the US, the connection between conservative nationalism and xenophobia on the one hand, and statism on the other is even more evident. For example, the use of nationalism as a "bridge from conservatism to collectivism" was a central tenet of Nazi and Fascist ideology.

Not all conservatives are strident nationalists, just as not all are averse to change or enamored of broad executive power. Because the word "conservatism" applies to so many different movements and ideas, it would be wrong to assume that Hayek's criticisms are relevant to all conservatives. But they do still apply to a great many.

Related Posts (on one page):

  1. Today, it Really is F.A. Hayek's 110th Birthday!
  2. Happy 110th Birthday F.A Hayek!
  3. The Continuing Relevance of Hayek's Critique of Conservatism:
  4. Is Hayek Still Relevant?

Sunday, July 27, 2008

Two articles on Christian Pacifism:

Pacifist-Aggressives vs. the Second Amendment: An Analysis of Modern Philosophies of Compulsory Non-violence. 1 Charleston Law Review (no. 3, 2008, forthcoming). VC readers say an earlier version of this last fall, as a working paper.

Then there's a new working paper, Christian Pacifism Before Constantine. Here's the abstract:

Much recent scholarship on early Christianity has emphasized the diversity of early Christian thought. This Paper presents evidence of diversity on early Christian belief and practice on the issue of pacifism. Notably, the diversity is found within orthodox Christianity itself. The claims of some modern writers that pre-Constantian orthodox Christians were virtually unanimously pacifist are not correct. In fact, some but not all of the early Patristic writers were pacifists. A significant number of Christians, including saints, served in the Roman army. The Paper discusses the following writers: Justin Martyr, Marcion, Irenaeus, Athenagoras, Clement of Alexandria, Tertullian, Hippolytus, Julius Africanus, Origen, Cyprian, Arnobius, and Lactantius, and also examines other sources of information about the early church.

The working paper is not about the sayings or actions of Jesus. It is about the actions and beliefs of early Christians.


Weekend Fun:

Over at Cato Unbound, the post-Heller debate continues, with Erwin Chemerinsky joining Bob Levy, Dennis Henigan, and me.

At the Rocky Mountain News, my media column discusses John McCain's use of a dog-whistle in a TV ad, appealing to people who despise Tom Tancredo's immigration reform policies.
The column also discusses media treatment of a false sexual harassment complaint against a widely-disliked state legislator. I argue that now that the official investigation has found that there was no sexual harassment, the name of the false accuser (a lobbyist) should be released.


Sunday Song Lyric: Since I'm fishing in Montana -- we've had two real good days on the Yellowstone River so far -- "Gone Fishing" by Chris Rea seemed an appropriate lyric.
I'm gone fishing
I got me a line
Nothing I do is gonna make the difference
So I'm taking the time . . .

I'm gone fishing
Sounds crazy I know
I know nothing about fishing
But just watch me go
The full lyrics are here.