Saturday, August 23, 2008

Fishing vs. Mining in Alaska:

The New York Times reports on a political fight over a proposed mine near Dillingham, Alaska,on Bristol Bay.

Rarely are Alaskans at odds over which of their natural resources they want to exploit. Oil? Timber? Minerals? Fish? While outsiders and some state residents may urge restraint, most people here typically just select all.

Yet the fight over what is known as the Pebble Mine is playing out as a war between economies and cultures, between copper and clean water, gold and wild salmon. Strange alliances and divisions have developed. Miners have been pitted against fishermen, as have Yupik Eskimos, Aleuts and Athabascan Indians and other Alaska Native people who want the jobs the new mine could bring versus those who fear it threatens thousands of years of culture.

Local fishing outfitters fear the proposed mine could harm fish populations, while others argue the mine is needed to help local economies. Bristol Bay is a gorgeous spot -- the first place I went fly fishing for salmon -- but Dillingham is also anything but a thriving community. It would be tragic if mining (or anything else) disrupted the local fisheries or that area's natural beauty. Then again, this is a choice Alaskans need to make for themselves. I hope they choose wisely.


An Increasingly Cautious FDA

Greg Conko laments an increasingly cautious Food & Drug Administration.

The FDA approved just 16 new drugs last year, and is on pace to approve only 18 this year. That's down from a high of 53 in 1996 and 39 in 1997.

After a few high-profile drug scares, such as the 2004 withdrawal of Vioxx from the market, FDA officials have become gun-shy about approving new products. After all, the agency receives scathing criticism from Congress and the press when an approved drug turns out to be more risky than expected — but rarely for keeping beneficial ones off the market.

Last year alone, the FDA rejected five new cancer drugs, including a breakthrough treatment for prostate cancer called Provenge. A panel of cancer experts that advises the FDA on new drug approvals unanimously agreed that Provenge was safe, and voted 13-4 that it was effective enough. But the FDA demanded still more testing that may delay approval for three years.

As Conko explains, this excess of caution means that terminally ill patients are blocked from obtaining treatments that could save their lives. When the FDA plays it "safe," it can cost people their lives.


Biden and Quayle:

It's of interest to me that Dan Quayle was attacked as a lightweight, based in significant part on his poor academic record in college, and rumors that he (a) had been involved in a plagiarism scandal in college, a rumor spread by Indiana Democrats; and (b) that his record at Indiana-Indianapolis Law School--a middling school, that he had to lobby hard to get into--was very poor. [I have a strong recollection that Quayle was said to have been at the very bottom of his class in law school.]

It turns out that despite extensive efforts, no one was able to come up with an evidence that Quayle was involved in plagiarism, and that when he finally released his law school grades, he had a 2.74 GPA, undistinguished but respectable, especially in the days before grade inflation. (Washington Post, Jan. 7, 1992).

Meanwhile, according to the Washington Post of Sept. 18, 1987,

Senator Joseph R. Biden Jr., fighting to salvage his Presidential campaign, today acknowledged "a mistake" in his youth, when he plagiarized a law review article for a paper he wrote in his first year at law school.

Mr. Biden insisted, however, that he had done nothing "malevolent," that he had simply misunderstood the need to cite sources carefully.

And Biden graduated 76th out of 85 students at Syracuse Law School, another middling law school.

Perhaps in his Senate career, Biden has dazzled everyone with his honesty and brilliance, in which case all of this becomes of marginal relevance at best. And Biden certainly has a longer record to stand on today than Quayle had in 1988, which makes his early life inherently less relevant. But it would be fun to contact Democrats who attacked Quayle as a dishonest lightweight based on his academic record and rumors of plagiarism and ask what they think of Biden.

UPDATE: I'm not saying that I care where Biden went to law school, or what his grades were. In fact, I don't.

But it does seem that Republicans are subject to a different standard re intelligence than Democrats. I don't want to get into a debate about Ann Coulter, but she had a very persuasive and amusing chapter on this point in one of her early books [I think it was Slander] (e.g., Gore and [serves me right for not looking this up] Bradley was deemed much smarter than Bush, even thought the latter did better on intelligence-related standardized tests). [Or just consider how dimwitted Reagan was deemed to be.] If Quayle's academic performance was considered by Democratic partisans and their friends in the MSM sound evidence that he was too dumb to be vice-president, well, what's sauce for the goose...

UPDATE: Some commenters claim that Quayle's reputation as "not too bright" was a result of his gaffes, especially the infamous potato incident. In fact, the potato misspelling didn't occur until June 1992, and Quayle was denounced for dimness almost immediately upon being selected as Bush's vice-presidential nominee in mid-1988--look it up on Lexis if you'd like--with his academic record playing a very prominent role in the critique. At the time, there were no Quayle gaffes remotely approaching what Biden has said just within the last year (e.g., Obama being a "clean" black candidate.)


Banned From Parks For Correcting Typos: From "A man from Somerville, Mass., and his friend who went around the country this year removing typographical errors from public signs have been banned from national parks after vandalizing a historic marker at the Grand Canyon."

Obama Picks Biden: It's official. Being from Delaware myself, I think that's pretty cool; I've liked Senator Biden ever since he spoke to my 7th grade class during our class trip to Washington. How the nomination will play outside the First State is another matter, though.

Friday, August 22, 2008

The Home and Amendments 1, 2, 3, 4, and 5:

From yesterday's U.S. v. Craighead, a Ninth Circuit decision written by Judge Bybee:

The home occupies a special place in the pantheon of constitutional rights. Under the First Amendment, the “State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). The Second Amendment prohibits a federal “ban on handgun possession in the home.” District of Columbia v. Heller, 554 U.S. ___, ___ (2008). The Third Amendment forbids quartering soldiers “in any house” in time of peace “without the consent of the Owner.” U.S. CONST. amend. III. The Fourth Amendment protects us against unreasonable searches or seizures in our “persons, houses, papers, and effects.” Id. amend. IV. The question presented in this case is one of first impression in our court: under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in the suspect’s own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings?

The opinion acknowledges that "An interrogation conducted within the suspect’s home is not per se custodial." (There's a Supreme Court precedent on that.) "On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. The element of compulsion that concerned the Court in Miranda is less likely to be present where the suspect is in familiar surroundings." But the court concludes that this particular interrogation was custodial, partly because the interrogation took place in the home, while it was being searched:

presents an issue on which our court thus far has said little. The usual inquiry into whether the suspect reasonably believed he could “leave” the interrogation [part of the test for whether Miranda warnings are required -EV] does not quite capture the uniqueness of an interrogation conducted within the suspect’s home. “Home,” said Robert Frost, “is the place where, when you go there, they have to take you in.” If a reasonable person is interrogated inside his own home and is told he is “free to leave,” where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. To be “free” to leave is a hollow right if the one place the suspect cannot go is his own home. Similarly, a reasonable person interrogated inside his own home may have a different understanding of whether he is truly free “to terminate the interrogation” if his home is crawling with law enforcement agents conducting a warrant-approved search. He may not feel that he can successfully terminate the interrogation if he knows that he cannot empty his home of his interrogators until they have completed their search. We must, therefore, consider how to apply the traditional Miranda inquiry to an in-home interrogation.

The court goes through a detailed and very interesting analysis, though on balance I'm (at least tentatively) unpersuaded that this suspect was indeed in custody for Miranda purposes, or that the fact that the interrogation was in the person's home -- and that leaving the scene of the interrogation means leaving one's home -- should count in favor of Miranda warnings' being required.


Funeral Picketing Ban Upheld by Sixth Circuit:

Today's Phelps-Roper v. Strickland upholds a ban on "'picketing' or 'other protest activities,' within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service." ("Other protest activities" is defined as "any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession.")

The court concludes that the ban is content-neutral, serves the important government interest in "protect[ing] the citizens of Ohio from disruption during the events associated with a funeral or burial service," including disruption in the sense of "unwanted communication that implicates ... privacy interests" of a "captive audience." And:

Individuals mourning the loss of a loved one share a privacy right similar to individuals in their homes or individuals entering a medical facility. Indeed, the Supreme Court has already recognized the privacy right of individuals to control the body and death images of deceased family members sufficient to prevent their disclosure under the Freedom of Information Act. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004). In Favish, the Supreme Court held that an individual’s request for death scene photographs of a public official were protected from disclosure under Exemption 7(C) of the Act “when the family [of the decedent] objects to the release of photographs showing the condition of the body at the scene of death.” Id. at 160. The Court based its holding on cultural traditions and common law protections....

The concerns for a survivor’s rights articulated in Favish are perhaps even greater in the context of a funeral or burial service. As the Favish Court observed, burial rites implicate the most basic and universal human expression “of the respect a society shows for the deceased and for the surviving family members.” A funeral or burial service is a moment of collective, shared grief when many come to pay their final respects to the deceased and to offer comfort to one another. As such, funeral attendees “have a personal stake” in “objecting to unwarranted public exploitation that ... intrud[es] upon their own grief.” Unwanted intrusion during the last moments the mourners share with the deceased during a sacred ritual surely infringes upon the recognized right of survivors to mourn the deceased.

Furthermore, just as a resident subjected to picketing is “left with no ready means of avoiding the unwanted speech,” mourners cannot easily avoid unwanted protests without sacrificing their right to partake in the funeral or burial service. And just as “[p]ersons who [] attempt[] to enter health care facilities ... are often in particularly vulnerable physical and emotional conditions,” Hill v. Colorado, it goes without saying that funeral attendees are also emotionally vulnerable.

Phelps-Roper, however, contends that funeral attendance is voluntary and funeral attendees can merely “avert their eyes” from undesired communication to avoid funeral protests. To begin with, attendance at a funeral or burial service cannot be dismissed as nothing more than a “voluntary” activity. As Respondents assert, “deep tradition and social obligation, quite apart from the emotional support the grieving require,” compel individuals to attend a funeral or burial service. Furthermore, if individuals “want to take part in an event memorializing the deceased, they must go to the place designated for the memorial event.” Friends and family of the deceased should not be expected to opt-out from attending their loved one’s funeral or burial service. Nor can funeral attendees simply “avert their eyes” to avoid exposure to disruptive speech at a funeral or burial service. The mere presence of a protestor is sufficient to inflict the harm.

The Circuit, though, relied partly on the fact that "The Funeral Protest Provision, by its terms, does not necessarily proscribe marching or walking within the 300-foot zone," so in principle such a march would still be allowed, even during the funeral, so long as it isn't sufficiently "disrupt[ive] or disturb[ing]," whatever exactly that means.

I sympathize with the funeral attendees whom the law is aimed at protecting, but I don't think this analysis quite works.

1. To begin with, I'm not sure that the law -- as interpreted by the Sixth Circuit itself -- is in fact content-neutral. The court concludes that "The Funeral Protest Provision only restricts picketing or other protest activities that are directed at a funeral or burial service," and thus wouldn't apply to hypothetical picketing of a business near the funeral home. But that, I think, makes the law content-based, because whether a protest is "directed at a funeral or burial service" appears to refer to whether the message of the protest comments on the funeral.

If the law banned all picketing within 300 feet of the funeral where the picket line passed by the entrance, that would be a content-neutral definition of directedness, but that's pretty clear not what the law does. That's why I infer that picketing critical of the deceased that is located on a small patch of sidewalk 200 feet from the sidewalk is covered by the law. And it's covered, under the Sixth Circuit's interpretation, only because its message relates to the funeral.

2. The precedents on which the court relies upheld much narrower restrictions than the law did. Frisby only upheld a ban on picketing "before or about" the home; Madsen struck down a ban on picketing within 300 feet of an abortion provider's home; and Colorado v. Hill likewise upheld a ban that left people free to picket near the abortion clinic. (The law in Hill barred people from approaching within eight feet of someone to give them a leaflet or display a sign, but not from standing not far from the clinic with a sign.) The Sixth Circuit tries to minimize the significance of these differences, but I didn't find that part of the court's analysis persuasive -- though perhaps the court's conclusion that marches past the funeral location remain allowed by the ordinance would indeed sufficiently limit the scope of the ordinance.

For the Eighth Circuit's 2007 decision granting a preliminary injunction against a somewhat different funeral picketing ordinance, see Phelps-Roper v. Nixon. That decision seems inconsistent with the Sixth Circuit's, though there is no square circuit split yet: The Eighth Circuit held only that the Phelpsians had a fair chance of success on their First Amendment claim, and that therefore a preliminary injunction should be granted. (Some preliminary injunction decisions involve definitive rulings on certain questions of law, but the Eighth Circuit decision expressly declined to make such a definitive ruling.)


Libertarianism and Actions Within Institutions:

I've often seen people -- usually not libertarians -- argue that some supposedly "authoritarian" or "collectivist" action within some institution is inconsistent with true libertarian principles. Doug Berman's comments about my experiment with banning laptops are one example, but I've seen many, in many contexts.

I generally find those arguments quite unpersuasive. Libertarianism -- even a relatively mild presumptive libertarianism such as the one to which I adhere -- is a philosophy related to the proper limits on government power, especially the government's power when acting as sovereign. It tells us little about the right course of action for nongovernmental actors, or for actors within institutions (such as workplaces, universities, and the like) that happen to be run by the government.

Consider, for instance, dress codes or other appearance regulations. Libertarians, even squishy ones, would surely condemn laws banning baggy pants or nose piercings (with the possible exception of some minimal nudity bans). But they would insist on the right of private institutions -- restaurants, workplaces, schools, and the like -- to impose such regulations on their patrons, workers, or students. And my sense is that most libertarians wouldn't even have much of an ethical view about whether such institutions should impose such regulations. Some might think the regulations reflect a pointless obsession with appearances, or unduly restrict people's self-expression. Others might think the regulations are quite reasonable; but in any case, there's no inherent libertarian view on such regulations.

What about such dress or appearance regulations in government-run institutions, such as government workplaces, government-run schools, and the like? Some libertarians might be more troubled by such rules, because the government is involved in enacting them. But my sense is that many might find them to be just fine, if there's good reason to think that the rules improve the efficiency of the institution. The government as employer is not the same to libertarians as the government as sovereign. (K-12 schools are more complex, since there is some government coercion there, but even there my sense is that many libertarians would find dress codes permissible.)

More broadly, many libertarians are happy to participate -- and run -- institutions that are "collectivist" (from families to religious communities) and "authoritarian" (such as traditional workplaces that are not run on democratic lines, or hierarchical churches). It's true that some libertarians might not like most such institutions, but most are just fine with them. Again, there's no inherent libertarian view on the subject.

Now there might be situations where for reasons either of constitutional law, professional ethics, or perceived efficiency (especially efficiency in the use of government money, something that to libertarians might have an ethical dimension), libertarians may oppose certain kinds of restrictions even when the government as sovereign is not involved. Campus speech codes are an example: Many (though not all) libertarians may oppose them even at many private schools, on the theory that such speech codes undermine the atmosphere of freedom needed for effective teaching and research. But that stems from a certain view about what works well in a university, and a view about what university life ought to be like, and not from general libertarian principles. And still more libertarians likely think that speech codes at public universities are unconstitutional, but that probably has to do with their sense of the First Amendment at universities, and not from broader libertarian reasoning that would be applicable to speech at all institutions -- for instance, I imagine that many libertarians are just fine with at least certain kinds of civility rules in most workplaces, including government-run ones.

So if someone wants to argue that some policy in some institution -- especially a government-operation institution -- is unsound, or should be seen as unsound under libertarian principles, that's just fine. But saying that it's "authoritarian" or "collectivist" and libertarians should therefore presumptively oppose it strikes me as not much of an argument.

Related Posts (on one page):

  1. Class Discussion:
  2. Libertarianism and Actions Within Institutions:
  3. Experiment with a No-Laptop Policy for Class:

Trade and Sovereignty bleg:

I am starting work on a paper on Taiwan/China trade issues. Do readers have suggestions for good books or articles on ways in which trade does/doesn't affect political sovereignty?

I'm not looking for stuff about globalization in general (e.g., the issue raised by much of the French Left that global trade shifts power away from the national government, and towards various multinationals). Rather, I'm looking for material (historical, or present) about bi-lateral trade--especially in the context of bi-lateral situations where one trade partner is much larger, or otherwise more powerful, than the other.

For example, Danish trade with rising, powerful Germany in 1880-1939 does not appear to have harmed Denmark's sovereignty; then when the Nazis did invade in 1940, Denmark's numerous business contacts with Germany helped convince the Germans to allow a limited degree of Danish autonomy during the first years after the conquest. On the other hand, threats to U.S. business interests in Haiti led to a U.S. invasion in 1915 that, arguably, might not have taken place if Haiti had fewer business ties to the U.S. in the first place.

Extra credit for Volokh Law School students who suggest factors, backed by examples, which make extensive bi-lateral trade more/less likely to impair the sovereignty of the smaller partner.


Lawprofs on Facebook:

At the Legal Innovation blog, Harvard Law School fellow Gene Koo notes the phenomenon of lawprofs getting their own Facebook profiles and asks:

how you use Facebook or social networking in general for the classroom. What do you hope to accomplish by being on Facebook? Do you have a policy for friending your students? Does even the concept of "friending" raise concerns about the appropriate relationship you should have with your students? What unique issues have arisen as a result of Facebook friending? (Did you have to go and remove all of your drunken party pics from back when?)

Well, I'm one of the culprits here, having started my very own facebook profile last year. I didn't think it was such a big deal. However, the main objectives were just to get a little more exposure for myself and my work, and to reconnect with old acquaintances. As for "friending" students, I don't think that a formal policy is really necessary. Just about anyone familiar with the site recognizes that a Facebook "friendship" is not a close intimate relationship, and doesn't create any conflicts of interest. So far, there haven't been any "unique issues" and I don't expect any to come up anytime soon. But for what it's worth, my "policy" is that I accept "friend" requests from students, just like I accept them from many other casual acquiantances.

As for drunken party pics, if any such exist (I'm certainly not admitting that they do), they certainly won't be found on my Facebook profile! That "policy" would apply even if I weren't a professor.


A Really Bad Fundaising Idea: I normally don't like using a blog to complain about random stuff in life, but here's one that might be of interest to readers. (And obviously, if that sort of post isn't your cup of tea, just skip it.)

  Yesterday's mail included a postcard indicating that there was a certified mail letter waiting for me at the post office. I haven't received such a letter in years, so I figured, hey, who knows, might be important. So I made a special trip to the post office to pick it up, drove over, found a parking spot, and waited in line. And waited, and waited. And when I finally got to the front of the line, the postal employee took a few minutes to find my letter in a large stack of envelopes that were all obviously from the same source. So finally the employee finds my letter, and it's . . . . drum roll please . . . a direct mail fundraising letter from the RNC. Yup, just a form letter. I opened it, and it explains that the letter was sent certified mail because it's critically important that I received the letter in person so I could take "immediate action."

  Of course, the only "immediate action" I wanted to take was to send the RNC a bill for the 40 minutes or so of my time that I wasted just to get a form letter. As Adam Sandler might ask, who are the ad wizards that came up with this one? Any, so goes my complaint about random stuff in life today. And now, back to our regularly scheduled programming.

The Dilemma of the International Criminal Court

The ICC was created in 1998 to try people who commit international crimes, including war crimes and genocide, when domestic institutions fail to do so. The United States was roundly criticized for wanting to make the Court a tool of the Security Council, to be set up when and only when its members could agree that a judicial approach to a problem of international relations makes sense – such as the civil war in Yugoslavia and the genocide in Rwanda, for which ad hoc tribunals had been set up. The United States, with some prescience back in 1998, feared that the Court would be used against Americans who were accused of committing international crimes. The U.S. view was rejected and the ICC was given independence, including its own prosecutor, and the right to launch investigations against any ICC member and other states that commit crimes on the territory of ICC members. The United States refused to join the court, though 106 other countries have.

Ten years later, the ICC has turned out to be an African Criminal Court, one called in by national governments in Africa that have wanted international help in dealing with insurgents who have committed atrocities (so far, Uganda, the Democratic Republic of Congo, and the Central African Republic). Fine and good; what one might call a pragmatic adjustment to international realities. All of this good feeling ended when the current prosecutor announced that he sought an indictment of Omar Hassan al-Bashir, the president of Sudan. Even human rights advocates have been made uneasy by this blundering into a delicate situation. Now humanitarian workers in Sudan are at risk, negotiations to resolve the conflict in Darfur are in trouble, and China, Sudan’s ally, is deeply annoyed. The prosecutor, you see, was supposed to exercise “political sensitivity,” not stage a judicial coup and overthrow a head of state. But why should a prosecutor do that? Remember Ken Starr and Lawrence Walsh? When prosecutors are given independence, they prosecute, political consequences be damned. The whole point of giving the ICC prosecutor independence in the first place was to avoid making the Court a plaything of the great powers, so he could slay the dragons of international illegality wherever they could be found.

Meanwhile, here is an even more delicate situation. News reports suggest that Russians and Georgians alike have committed atrocities in South Ossetia. The ICC has not launched an investigation; the situation is "under analysis." Why not? For one thing, while Georgia is a member of the ICC, Russia is not. So Georgia was not only crushed by Russia; it now faces the prospect of having citizens, perhaps soldiers, perhaps even leaders, being sent off to the Hague for a trial. To be sure, the ICC is not supposed to intervene if Georgia investigates in good faith, but Georgia will probably not do so. Countries in situations like Georgia’s rarely do.

Now although Russia is not a member of the ICC, in theory the ICC has jurisdiction over Russia, to the extent that it committed international crimes on the territory of a member – namely, Georgia. Suppose then that credible evidence shows that Russians committed atrocities, maybe on the orders of generals or, who knows, Vladimir Putin himself. Then it is the duty of other ICC members – Italy, say – to arrest Vladimir Putin while he’s sunning himself on vacation in Capri and hand him over to the Hague. Good luck, one can only say – and take a Geiger counter along next time you go out for tea! Maybe the prosecutor will rediscover the merits of political sensitivity.

(Russia apparently will help ethnic Russian citizens of Georgia file claims with the ICC. Russia itself has no power to ask the ICC to act, but Georgians do. Sneaky!)

Meanwhile, here’s a question for the weekend. Suppose Georgia had been a member of NATO when Russia invaded its territory earlier this month. Would NATO military forces have honored the treaty obligation and launched a military response even though no one in the west thinks that Georgia is worth World War III? If not, would NATO have been revealed as a meaningless institution? Or should we assume that Russia would not have attacked Georgia in the first place for fear of provoking a military response from NATO?


It's ALIVE!! New Medical Marijuana 10th Amendment Claim Moves Forward: Just when you thought all constitutional challenges to the enforcement of the Controlled Substances Act were six feet under, a new theory has just survived a motion to dismiss in the Northern District of California. The case is Santa Cruz v. Gonzales, Case Number C 03-01802 JF. (If someone provides me a link to the opinion, I will include it here.)

Previously the district judge had dismissed, with leave to amend, the challenger's Tenth Amendment claim on the ground they had not alleged that federal enforcement required the states to alter their medical cannabis statutes or enforcement regime. But this week it accepted the theory of the plaintiff's amended complaint as potentially stating a cause of action:
In their [Second Amended Complaint], Plaintiffs allege that federal officials have devised a strategic plan of targeted enforcement that has had the intended effect of “rendering California’s medical marijuana laws impossible to implement and thereby forcing California and its political subdivisions to recriminalize medial marijuana.” Specifically, Plaintiffs allege that Defendants have: (1) threatened to punish California physicians who recommend marijuana; (2) threatened government officials who issue medical marijuana identification cards; (3) interfered with municipal zoning plans; and (4) targeted for arrest and prosecution those providers of medical marijuana who cooperate most closely with municipalities. Plaintiffs assert that these actions violate the Tenth Amendment by making it impossible for the state to distinguish between authorized and recreational users of marijuana, a distinction that is necessary for the proper enforcement of California law. [citations to amended complaint omitted]
To my knowledge this particular Tenth Amendment theory has not been previously adjudicated, and it is distinct from the federal government simply enforcing its own laws, while leaving the states to enforce theirs. Here is how the trial judge evaluates this claim:
In his concurring opinion in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), Chief Judge Kozinski opined that Defendants’ manner of enforcing the CSA had commandeered California’s legislative process, at least as to the legal rights and obligations of physicians:
The state relies on the recommendation of a state-licensed physician to define the line between legal and illegal marijuana use. The federal government’s policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law. Normally, of course, this would not be a problem, because where state and federal law collide, federal law wins. . . .
. . . Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. Yet the effect of the federal government’s policy is precisely that: By precluding doctors, on pain of losing their DEA registration, from making a recommendation that would legalize the patients’ conduct under state law, the federal policy makes it impossible for the state to exempt the use of medical marijuana from the operation of its drug laws. In effect, the federal government is forcing the state to keep medical marijuana illegal. But preventing the state from repealing an existing law is no different from forcing it to pass a new one; in either case the state is being forced to regulate conduct that it prefers unregulated. Id. at 645-46 (Kozinski, concurring).
While this authority is not controlling, it is the only authority that addresses the precise issue at hand, and it suggests that at least at the pleading stage Plaintiffs’ claim may be cognizable. If Plaintiffs can prove that Defendants are enforcing the CSA in the manner alleged, a question as to which the Court expresses no opinion, they may be able to show that Defendants deliberately are seeking to frustrate the state’s ability to determine whether an individual’s use of marijuana is permissible under California law. A working system of recommendations, identification cards and medicinal providers is essential to the administration of California’s medical marijuana law. The effect of a concerted effort to disrupt that system at least arguably would be to require state officials to enforce the terms of the CSA. Because the Court must assume that Plaintiffs’ allegations are true and resolve any doubt in Plaintiffs’ favor for the purposes of the instant motion, and because Plaintiffs have alleged their claim with considerably greater factual specificity than they did in their First Amended Complaint, the motion to dismiss will be denied as to Plaintiffs’ third claim. [emphasis added]
At this point ANY constitutional victory on behalf of federalism OR medical cannabis--even one as small as surviving a motion to dismiss--is a BIG victory. Should this claim of deliberate obstruction of state law making and enforcement survive, some of the more conservative Justices may find it more appealing than a Commerce Clause challenge, precisely because it's practical impact would be confined. And, at best, the Supreme Court has preferred symbolic rulings favoring federalism over anything more radical in its implications. This sort of theory may just be narrow and symbolic enough to be accepted.

Computer purchase bleg:

I am thinking of buying a new desktop computer for my office, or a new portable computer. Both of my current models are Dells, and I've been happy with them, except that they are five years old, and getting slow. The portable (a subnotebook with an 11 inch screen) is slow on booting, and on opening programs. The desktop gets slow whenever it's required to do something CPU-intensive in the background--e.g., an antivirus scan, playing an episode of, etc.

I've been happy with Dell, but the customer comments I see on and on about Dell's current quality control and customer service are horrific.

My plan is to buy a fairly powerful machine, so that I don't need to upgrade in a couple years. My home computer is a one-year old Gateway, which has worked great. Unfortunately, Gateway no longer sells directly, and only offers pre-configured machines from selected vendors. Its most powerful desktops appear to be available only from TigerDirect, with which some of my friends have had customer service problems.

I certainly don't want to buy from HP. I bought a multifunction printer from them a few years ago. When it broke (bad circuit board), they refused to sell me a replacement circuit board; instead they offered me a "discount" on a new printer; the "discounted" price was actually higher than the regular price available from several retail vendors.

I don't want to buy from Apple. Too many compatability issues with the Windows-based systems in my office and home.

So...should I go back to Dell? Or buy from somebody else? Who makes high-quality, reliable computers these days? I don't need a system with superfast video for gaming, nor do I expect that I need something with strong video editing powers. (But who knows what will be important in 3-4 years?) I do want something with a fast CPU, and lots of RAM. So what should I do?


Eugene Volokh, Collectivist?: Over at Law School Innovation, Doug Berman suggests that Eugene's laptop ban reveals he is not a true libertarian:
Although I am disinclined to assert that this alone shows how quickly professorial power can corrupt philosophical commitments, I do find remarkable the dramatic move to collectivism here. Not only is Eugene severely restricting laptop liberty, but he also is mandating that individuals share the fruits of their labor with a student collective all for purported good of the UCLA School of Law.
  And it's much worse than that. According to my sources, Eugene has structured his class much like a dictatorship. In particular, students cannot determine their own grades. They can't even vote together for their grades, expressing the collective will of the people. Rather, Eugene gives himself the sole and complete discretion to assign grades according to his own personal measurement of achievement. That's right: Self-appointed King Eugene thinks that he knows what is better for his "subjects" more than the people themselves. Sounds like a nanny state to me.

The Socratic Method and "Thinking Like a Lawyer" Revisited:

In his latest post, Orin argues that the Socratic method can teach students to "think like a lawyer" in ways different from those I discussed in my post on the subject. He suggests that:

I think Ilya and I have a very different sense of what it means to "think like a lawyer." In my view, thinking like a lawyer has little to do with thinking on your feet, answering questions orally, or advocacy skills. Nor does the Socratic Method teach these skills very well.

Rather, "thinking like a lawyer" means having a brain that focuses on what is legally relevant and that puts aside what is not. Legal thinking is a practical art that relies on a set of principles and relationships, and a person thinks like a lawyer when they master that practical art.

Orin is absolutely right that lawyers need to be able to identify what is "legally relevant" in a reading, and that the Socratic method can sometimes help teach that skill. At the same time, I see little that is unique to law about this ability. In studying almost any field that involves reading written material, students have to be able to separate out what is relevant to their studies from that which is not. I focused on advocacy skills in my previous post because those are more clearly specific to law and because many advocates of SM (though not, apparently, Orin) claim that it helps teach them.

That said, Orin is right that effective use of SM can help students identify legally relevant material in their readings. The question is whether it can achieve this goal better than alternative teaching methods, while also achieving the objective of getting them to understand the substantive field of law the class is supposed to be covering. In my view, most of the time other teaching methods will be more effective in achieving both objectives because less class time is wasted on answers by students who may be poorly prepared and because of the problems caused by "hiding the ball." Professors in other fields that require students to identify what is relevant in complex written material seem to do just fine without resorting to SM. The same goes for law professors in virtually every country other than the United States. For me, as for Brian Leiter, it is telling that teachers in these other fields and countries feel no need to resort to SM, and most clearly believe that the skill of separating out relevant from irrelevant can be better taught in other ways.

I don't think that SM is always and inevitably worse than alternative teaching methods. As I suggested here, full-blown SM may be the best method for a few professors, and moderate SM can often be useful as a supplement to other approaches. Nonetheless, I don't believe that SM is an especially good way of learning how to separate out the relevant from the irrelevant.


Free Enterprise Fund v. PCAOB -- Humphrey's Executor Squared:

This morning the U.S. Court of Appeals for the D.C. Circuit released its long-awaited opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, a challenge to the constitutionality of the PCAOB on appointments clause grounds. Judge Rogers, joined by Judge Brown, rejected the Free Enterprise Fund's challenge.

In this facial challenge, appellants contend that Title I of the Sarbanes-Oxley Act of 2002 (“the Act”) . . . violates the Appointments Clause of the Constitution and separation of powers because it does not permit adequate Presidential control of the Public Company Accounting Oversight Board (“the Board”). Congress, however, made the Board’s exercise of its duties subject to the comprehensive control of the Securities and Exchange Commission (“the Commission”). Under the Act, the Commission is empowered to set Board rules and procedures, to overturn any sanction proposed by the Board, and to limit or relieve the Board of its powers; the Commission also may remove members of the Board for cause. Members of the Commission, in turn, are appointed by the President with the advice and consent of the Senate and subject to removal by the President for cause; its chairman is selected by and serves at the pleasure of the President. In appellants’ view this statutory scheme vests Board members “with far reaching executive power while completely stripping the President of the authority to appoint or remove those members or otherwise supervise or control their exercise of that power.” . . . But their facial challenge ignores the entirety of the statutory scheme and runs afoul of the Supreme Court’s instruction regarding the nature of the President’s constitutional relationship with independent administrative agencies. Supreme Court precedent as we have it does not support appellants’ singular focus on removal powers as the be-all and end-all of Executive authority, but rather compels a more nuanced approach that examines the myriad means of Executive control.

We hold, first, that the Act does not encroach upon the Appointment power because, in view of the Commission’s comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission’s power to remove Board members and the President’s power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates. Accordingly, we affirm the grant of summary judgment to the Board and the United States.

Judge Kavanaugh penned a 58-page must-read dissent (which, admittedly, I've only skimmed).

This case raises fundamental questions about the scope of the President’s constitutional power to appoint and remove officers in the Executive Branch. Article II begins: “The executive Power shall be vested in a President of the United States of America.” Under Article II, the President possesses the sole power and responsibility to “take Care that the Laws be faithfully executed.” To assist in his duties, the President has authority, within certain textual limits, to appoint and remove executive officers. Myers v. United States. . . . Disputes over the scope of the President’s appointment and removal powers have arisen sporadically throughout American history. This latest chapter involving the Public Company Accounting Oversight Board is the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.

The Public Company Accounting Oversight Board is an independent executive agency created by the Sarbanes-Oxley Act of 2002. The PCAOB is considered an “independent” agency because the five members of the PCAOB are removable only for cause, not at will. The PCAOB portrays itself as just another independent executive agency – like the FCC, the FTC, and the NLRB – that is permissible under the Supreme Court’s 1935 decision in Humphrey’s Executor. Plaintiffs, including a Nevada accounting firm regulated by the Board, strenuously disagree and challenge its constitutionality. Plaintiffs object to the fact that members of the PCAOB are appointed by and removable for cause by another independent agency, the Securities and Exchange Commission, rather than by the President. They argue that this structure, an independent agency appointed by and removable only for cause by another independent agency: (i) interferes with the President’s Article II authority to remove executive officers, and thereby exercise the executive power and take care that the laws be faithfully executed; and (ii) violates the specific terms of the Appointments Clause of Article II regarding the President’s authority to appoint “principal officers” in the Executive Branch. Plaintiffs contend that “vesting government agencies with coercive power over the citizenry, and simultaneously depriving the citizenry of any ability to control or check those exercising such potentially tyrannical authority, is precisely the fundamental threat to the ‘liberty and security of the governed’ that separation of powers principles were designed to prevent.” . . .

On the removal issue, the majority opinion views this case as Humphrey’s Executor redux. But this case is Humphrey’s Executor squared. There is a world of difference between the legion of Humphrey’s Executor-style agencies and the PCAOB: The heads of the Humphrey’s Executor independent agencies are removable for cause by the President, whereas members of the PCAOB are removable for cause only by another independent agency, the Securities and Exchange Commission. The President’s power to remove is critical to the President’s power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of restriction on and attenuation of the President’s authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and lawenforcement functions at the core of the executive power. So far as the parties, including the United States as intervenor, have been able to determine in the research reflected in their exhaustive and excellent briefs, never before in American history has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency, rather than by the President or his alter ego. But that is the case with PCAOB members, who are removable for cause only by the SEC – and it is undisputed that the SEC as an independent agency is not the President’s alter ego. The PCAOB thus goes well beyond what historical practice and Humphrey’s Executor authorize.

This is a huge case (I used the fact pattern for my Admin Law exam a few years back), and one I expect will either go en banc or produce some en banc dissents.


D.C. Circuit Panel Splits 2-1 on Constitutionality of Public Company Accounting Oversight Board:

A very interesting Appointments Clause question, discussed in Free Enterprise Fund v. Public Company Accounting Oversight Board. The split is 2-1, with liberal Judith Rogers and conservative Janice Rogers Brown (no known relation) in the majority, and conservative Brett Kavanaugh dissenting.

UPDATE: Here's Hans Bader's criticism of the majority's reasoning. Hans was one of the lawyers for the plaintiffs.


"Freak Out Your Friends With Fake Obama VP TXT":

A funny "stupid pranks" tip from Wonkette. (Compare Sandra O'Connor to retire.)


Amnesty International: Verdict First, Evidence Later?:

On April 16, 2008, a shell from an Israeli army tank on a counter-terrorism mission in Gaza killed four civilians, including a Reuter’s cameraman, Fadel Shan. On April 18th, well before Israel (or anyone else) could conduct a serious investigation, Amnesty International sent out a press release stating that "Fadel Shan appears to have been killed deliberately although he was a civilian taking no part in attacks on Israel’s forces."

The Israeli army eventually conducted an investigation, which resulted in a seventeen-page report sent to Reuters, but not released to the public, or published by Reuters. A summary released by IDF states:

The facts show that the incident occurred against the backdrop of severe hostilities in the area. Earlier in the day three IDF soldiers had been killed in an attack and there was continuous mortar and anti-tank fire directed against IDF forces.

Moreover, the investigation shows that the tank shot was authorized after the tank crew reported identifying, from afar, suspicious figures wearing bulletproof vests and protective gear who were affixing a large unidentified black object to a tripod and aiming it at the tank. Only in retrospect was it discovered that the suspicious figures were Reuters cameramen wearing vests, and that the object mounted on a tripod was a camera and not an anti-tank missile or tripod-mounted mortar as the crew believed at the time.

Given the information at the time and the conditions in the field, the decision of the tank crew and the officers who authorized the shot was reasonable since the suspicious figures and suspected missile presented a clear and present danger to the lives of the IDF soldiers. The subsequent investigation revealed that the soldiers in the tank did not and could not have positively known that the object affixed to the tripod was not a weapon. Nor could they positively identify any markings on the clothing of the men to indicate that they were media personnel. There was no way for the tank crew to know that the suspicious figures were Reuters employees shooting footage and not militants shooting rockets.

Two days later, Amnesty International published an extremely tendentious press release, condemning what it calls the Israeli army's "scandalous" "so-called investigation" into the incident, and which includes what strikes me as a bizarre claim by Amnesty's Donatella Rovera that she is sufficiently familiar with the "sophisticated optical systems" in the Israeli tanks involved to say with some certainty that they must have seen "the clear TV-Press marking on both Fadel Shana’s blue flak-jacket and the Reuter Mitsubishi Truck nearby" almost a mile away.

NGO Monitor points out that the army report wasn't released to Amnesty, and there is no indication in Amnesty's press release that anyone at Amnesty actually read the army report before condemning it as "scandalous" and a "so-called investigation." The press release itself suggests that Amnesty was indifferent to the content of the army report, because it was not the product of an independent investigation.

Early yesterday morning, I emailed Amnesty's press contact for the Middle East, Nicole Choueiry, and introduced myself as blogger for the Volokh Conspiracy. I forwarded the NGO Watch link, and asked if she "could confirm or deny that Amnesty wrote its press release without having access to the full report the Israeli army made on the incident?" I also asked "whether the basis for the underlying press release by Amnesty was a specific critique of the Israeli report on the incident, or was part of a general critique of Israel for not conducting independent investigations of civilian deaths in Gaza." (In other words, would Amnesty automatically condemn any report, no matter how thorough, issued by the Israeli army, because it was issued by the Israeli army).

A few hours later Ms. Choueiry responded that she would get back to me with a detailed response shortly. I haven't heard back, but will let readers know if and when I do.

UPDATE: Soccer dad has much more on the broader story, including a link to pictures of anti-tank weapons that look a heck of a lot like movie cameras, even close up.

And compare Amnesty's sole statement so far on journalists wounded and killed by Russian forces in Georgia: "'The fact that media workers have themselves become casualties, with over a dozen journalists killed or wounded during attacks by all sides, has compounded the problem of access to information. Journalists, as all other civilians in the conflict zone, must be protected from hostilities,' said Nicola Duckworth." That's it.


What Does It Mean to "Think Like a Lawyer"? And How Does The Socratic Method Help?: In his latest post, Ilya offers the following take on how the Socratic Method can help a person "think like a lawyer," and how much it matters:
It is useful for lawyers to be able to think on their feet, answer difficult questions posed in an oral argument, and so on. At the same time, it's important to realize that classroom SM is only vaguely similar to the work of most real-world lawyers. Transactional lawyers rarely confront SM-like situations at all. And even many litigators spend far more time doing research or writing briefs and motions than answering questions at an oral argument. Nonetheless, SM can help hone advocacy skills that many lawyers will find useful.
  I think Ilya and I have a very different sense of what it means to "think like a lawyer." In my view, thinking like a lawyer has little to do with thinking on your feet, answering questions orally, or advocacy skills. Nor does the Socratic Method teach these skills very well.

  Rather, "thinking like a lawyer" means having a brain that focuses on what is legally relevant and that puts aside what is not. Legal thinking is a practical art that relies on a set of principles and relationships, and a person thinks like a lawyer when they master that practical art.

  The purpose of the Socratic Method is to ask students the legally relevant questions (and in some cases, to show why the legally irrelevant questions are legally irrelevant) in order to train them to ask themselves those questions when they read cases and legal materials on their own. Put another way, the method pushes students to internalize a way of thinking: The repeated raising of a specific type of questions in class trains students to ask themselves those questions out of class.

  In my view, the Socratic Method doesn't require a professor to "hide the ball" or preclude some lecturing about doctrine. It can be done that way, but it doesn't have to be. Rather, I think the root of the method is creating an environment in which students in a large class feel sufficiently engaged in the material (often aided by the possibility of being called on) so that they try to answer the professor's questions for themselves. After a while, they can predict where the professor will go; they can ask the professor's questions without the professor. As Phil Areeda wrote:
The student sees that he could have asked himself those questions before class; that the kinds of questions the instructor asked can be self-posed after class. The internalization of that questioning process is not an illusion. It is the essence of legal reasoning and the prize [of the Socratic Method].
Phillip E. Areeda, The Socratic Method (SM) (Lecture at Puget Sound, 1/31/90), 109 Harv. L. Rev. 911 (1996).

VP Predictions Open Comment Thread:
Obama may announce running mate later today

WASHINGTON - Presidential candidate Barack Obama said Friday the running mate he has chosen — but has not yet announced — had to meet three standards to join the Democratic ticket: Prepared to be president, able to help him govern and willing to challenge his thinking.

Those criteria did little to narrow the guessing game as Obama prepared for a massive rally in Illinois on Saturday to present his No. 2 to the nation and undertake a pre-convention tour of battleground states. He planned to disclose his choice through text messages to supporters, perhaps as early as Friday.
Here is an open comment thread for your guesses on Obama's choice for running mate. Serious predictions and reasons are preferred.

My guess: Hillary. No other candidate would so shore up Obama's still shaky support among Democratic women, unify the party, and turn the convention (and all the Clinton participation now scheduled) into a love fest. For many reasons, Iraq is no longer the major dividing issue between them it was in the primaries. Shockingly, Hillary now appeals to a different base of voters than Obama and would be effective in debates. The MSM will go ga-ga.

The strongest argument against this being his pick is for his ability to be an effective President if elected, with the Clintons potentially undermining him. The second strongest argument against it is its obvious potential to galvananize the Republican base. Third strongest argument against it is the Clinton fatigue that led Democratic voters to favor the untested Obama in the first place. Fourth strongest reason: it doubles down on the diversity bet.

Still, given the alternative candidates being discussed (Kaine, Biden, Bayh), I just think this will seem to make the most sense to the Obama campaign now that the polls are so tight. And, given the known alternatives, it makes the most sense to me too. If he were way ahead at this point there is no way that this would be his choice.

What do you think? What is YOUR prediction. Now is the time to get your view on the record. Then you can say "I told you so."

Obama's Case Note:

I just read the piece, and it is as calm and fairly uncontroversial as most people say.

Pretending for a moment that we actually care about the article as an article, my one suggestion would have been to pay a bit more attention to the risk of collusive lawsuits: Since the fetus-mother lawsuit would usually make sense only if the mother has liability insurance -- as many people do, just under their auto insurance or homeowner's insurance policies -- there would be very great temptation in an injury case for the mother to overstate her possible negligence, so the fetus gets more money from the insurance company. I imagine many a person, even one who is ordinarily quite ethical, might find this temptation hard to resist in a case such as this one, when it's a matter of helping one's family (especially when the family will be facing huge medical or supplemental care bills as a result of the injury) at the expense of a faceless insurance company. The article mentions the insurance factor as a reason to worry about generally higher premiums for pregnant women, but not the collusive lawsuit concern.

But this is a minor criticism. For what it is, the article is quite good -- well-written and well-reasoned. It's nothing really innovative or valuable, but a short case note is a poor medium for saying anything really innovative or valuable. That's one reason I urge students to write not short case notes but rather longer articles about broader issues (using several specific cases as illustration). But the Harvard Law Review has its own traditions on this -- and I guess in this one highly unusual scenario, a case note really has made a splash.


Barack Obama's Case Comment on Abortion for the Harvard Law Review: has the scoop. According to the article, the citation for the case comment is 103 Harv. L. Rev. 823.

Related Posts (on one page):

  1. Obama's Case Note:
  2. Barack Obama's Case Comment on Abortion for the Harvard Law Review:

Has Your Spinach Been Irradiated?

The Food & Drug Administration has decided to allow the irradiation of spinach and iceberg lettuce for the purpose of killing bacteria and reducing the risk of foodborne illness. Irradiation is sometimes used on meat and spices, but this is the first time the FDA has allowed irradiation of produce. More here.


Lose Two, Gain Fifteen:

The list of college administrators calling for reconsideration of the national drinking age is growing, but the withdrawal of two from the list of signatories gets the headline. As of now, the Amethyst Initiative list includes top administrators from over 120 colleges and universities.

Related Posts (on one page):

  1. Lose Two, Gain Fifteen:
  2. Rethinking the Drinking Age:

The Socratic Method and "Thinking Like a Lawyer":

Many defend the use of the Socratic method in law school classes on the grounds that it teaches students to "think like a lawyer." There is some merit to this point, though I think it is greatly overstated, for reasons Steve Bainbridge discusses here. It is useful for lawyers to be able to think on their feet, answer difficult questions posed in an oral argument, and so on. At the same time, it's important to realize that classroom SM is only vaguely similar to the work of most real-world lawyers. Transactional lawyers rarely confront SM-like situations at all. And even many litigators spend far more time doing research or writing briefs and motions than answering questions at an oral argument. Nonetheless, SM can help hone advocacy skills that many lawyers will find useful.

But the fact that SM conveys some useful skills doesn't mean that it should be employed in all or most classes. Most law schools have specialized courses devoted to trial practice, oral advocacy, brief writing, and other advocacy skills. It's not necessary for those skills to also be taught in classes where the principal objective is to master a particular body of law. To the contrary, it is usually best if the law school curriculum exploits the benefits of specialization.

Professors whose main expertise is in the subject matter of a given body of law can best serve their students by teaching what they know best, without diverting class time to the teaching of advocacy skills in which they are less expert (if they have any expertise at all). Those who specialize in advocacy skills (e.g. - many clinical faculty), by contrast, can teach courses specifically focused on those subjects. Even if a particular professor has great facility with both a given field of substantive law and advocacy skills, it doesn't necessarily follow that he should teach both in the same course. He might serve the students better if he teaches one class solely devoted to the former and another focusing on the latter.


The Socratic Method and Diversity in Teaching Styles:

There is much that I agree with in Orin's post advocating diversity in teaching styles. Certainly, Orin is right that no one teaching method is optimal for every professor and every class. Much depends on the professor's personality and on the subject matter covered. That's why in my original post expressing doubts about the Socratic method, I didn't advocate its total abolition, merely reducing its use. I also don't think that there's any one alternative that should replace the Socratic method across the board. I myself incorporate some elements of SM in my large survey classes, though in a limited fashion.

At the same time, I think that full-blown SM has systematic weaknesses that are likely to bedevil most professors who try it. Among the most important are 1) wasting of class time on flawed answers by students who are poorly prepared or simply make mistakes, 2) "hiding the ball," which makes it difficult for students to grasp the material covered (especially if it is complex or counterintuitive), and 3) the danger of creating an atmosphere of tension and antagonism between the students and the professor. It is telling that Socrates himself made the method work in a setting where he usually taught no more than a handful of students at a time, didn't have a large, detailed body of knowledge that he needed to convey to them, and enjoyed the luxury of virtually unlimited "class" time (his students were young Athenian aristocrats with plenty of leisure time). Modern academics teaching survey courses to large classes under tight time constraints aren't so fortunate.

Can a particularly skilled practitioner (perhaps Orin himself) overcome these grave disadvantages and still teach an excellent class using SM? Most likely yes. But I think only rarely will it be the best method available. Even some of those professors who can do well with SM might do even better with another approach.


Thursday, August 21, 2008

Chevron Deference and Agency Jurisdiction:

Should agencies receive Chevron deference for statutory interpretations that implicate the scope of their own jurisdiction? This question divided Justices Scalia and Brennan in Mississippi Power & Light Co. v. Mississippi (1988), and has not been conclusively resolved since. In The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, Nathan Sales and I address this question, and come down conclusively on the side of (drum roll please) . . . Justice Brennan. A draft is now up on SSRN and I've posted the abstract below:

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Related Posts (on one page):

  1. Chevron Deference and Preemption:
  2. Chevron Deference and Agency Jurisdiction:

The Case for Diversity in Teaching Styles: I wanted to follow up Ilya's post on the Socratic Method with a slightly different thought: From the standpoint of a law student, isn't the ideal to experience a wide range of different teaching styles?

  When I was a student, I had terrific experiences with Socratic teaching; my most Socratic professors really taught me to think like a lawyer. On the other hand, I learned a lot from professors who lectured, too. Lecturing profs shed light on the nature of the legal system in ways that Socratic dialogue didn't capture very well. I also learned from other styles, whether mixing and matching or other approaches. In my experience, different styles worked for different courses and different professors, and a range of styles led to the most engaging and educational experience. (The only approach that didn't work for me was "group problem solving," as the main problem the group tried to solve usually was where to go out next weekend).

  If I'm right, we shouldn't be asking whether the Socratic Method is good or bad in the abstract. The better question is what teaching style works best for a particular professor and course in light of the other teaching styles students will experience over the course of law school.

Alan Gura and Walter Dellinger Discuss Their Strategies in Heller: The video is here. Thanks to SCOTUSblog for the link.

Doubts About the Socratic Method:

Like some other law professors, I have long had doubts about the merits of the Socratic method - at least in its full-blown "Professor Kingsfield" form, where any student can be called on at any time and most of the class time is taken up by questions the professor poses to students who are selected involuntarily. Over the years, I have spent more time lecturing and have adopted an approach under which students can only be called on involuntarily if they signed up to be "on call" that day (each is required to sign up several times over the course of the semester). To give students an incentive to do the reading and participate on days when they aren't on call, I give class participation bonuses to those who make especially good comments.

In this interesting post, Steve Bainbridge outlines some reservations about the Socratic method that are similar to my own, and advocates dropping it entirely - a more radical stance than mine. He also cites this Brian Leiter post, which makes a similar argument, and a book by Lani Guinier where she argues that the standard Socratic method disadvantages female students.

In addition to the points Bainbridge and Leiter make, I would add that the classic Socratic method ends up squandering a great deal of class time on answers by students who are poorly prepared or simply don't understand the question posed to them. It also often confuses students about the right answer by "hiding the ball" from them - a serious drawback in classes where students have to learn a large amount of complex and counterintuitive material. Finally, aggressive use of the Socratic method sometimes leads to resentment and tension between students and the professor, which at least in my experience inhibits learning more than it facilitates it.

I don't necessarily agree with all the objections to the Socratic method listed by Bainbridge and Leiter. Limited use of the method might still have value in many large classes as a way of ensuring that all students participate in the discussion. But I do think its shortcomings are serious enough that we should cut back on its use even if we don't abolish it entirely.


Which Country Won the Olympics?

Not China; not the United States. The gold medal for interstate warfare was snatched up by Russia, and that one is worth more than all the others combined! Poor China; it spent $100 million on the opening ceremony alone and walked away with just a bunch of medallions; for a lot less, Russia got a chunk of territory and a formidable reputation not to be messed with.

I agree with Ilya that Russia is not a threat to the United States in the way that the Soviet Union was; my interest is in what the conquest of South Ossetia tells us about international law. Here, Ilya’s concern about soft power comes into play. But soft power cuts in multiple ways.

If you’re the dictator or even duly elected president of some small state somewhere, with gas reserves or space for a military base or some such thing, who would you rather deal with? Russia or China, who will make a deal with you and then leave you alone, or the United States or Europe, which will make a deal with you, and then start bleating about your human rights record, or the fairness of your elections, or the integrity of your judges, or your devotion to the rule of law, or your persecution of religious minorities, or your treatment of women – which looks so fine to us, but looks like neocolonialism to them. Inward-looking nationalistic states, with nothing to offer in terms of a universal ideology, have a tactical advantage, it seems to me; and we will see more of this as Russia and China begin to flex their muscles.

Of course, nationalistic regimes have a tendency to self-destruct – “we are better than the rest of the world” can’t be true for more than one state at a time. Russia’s neighbors are terrified of it, and so some like Poland are being driven even more deeply into the arms of the west. But the danger that the United States will find itself being manipulated to advance the local ambitions of those states — which is essentially what Georgia tried to do — is significant, and we should recognize what the Russians did to Georgia in our own Monroe Doctrine (which since 1989 has been extended from the western hemisphere to more or less everywhere). In the long term, the United States and Europe are less of a threat to states that actually give in and adopt western norms than Russia and China are, if the democratic peace literature (which says that democracies do not fight with each other) is to be believed, and that is, I suppose, what our soft power amounts to. But the long term just never seems to arrive, does it?


Jerry Wexler, RIP

A moment, please, to commemorate the passing of one of the real giants in American (and world) culture last Friday. A very nice tribute in last Saturday's New York Times gives most of the details, if you're not one of the cognoscenti -- you may not have known much about him, but you couldn't have lived in this country during the last 50 years without feeling his influence all around you. Wexler coined the phrase "rhythm and blues" to describe the black music being made in the late '40s (which had, prior to that time, been known mostly as "race music"), and he went on to shepherd the careers, and produce the music, by some of the greatest R&B artists ever - Ray Charles, Aretha Franklin, the Drifters, Wilson Pickett, Otis Redding, among many others. [He even produced a Dylan album, "Slow Train Coming," which gets my vote as the best mid-period Dylan out there]. A Bronx-born Jewish white guy, he didn't just help bring a lot of great black music into the "main stream", he actually helped create a great deal of it -- Wexler was a true collaborator, helping to coax a sound and a vision onto vinyl (and the artists themselves, in everything I've read, have always generously credited him with helping them to find their "voice"). Listen to some pre-Wexler Ray Charles, or pre-Wexler Aretha, and you'll get the idea. What a life!


Violating Federal Law:

It is, I am informed on the warning label, a violation of federal law to use my new bottle of Fantastik™ brand heavy-duty kitchen cleaner "in a manner inconsistent with these directions." Really?! So if I don't shake well before use, or I use on porous materials, I'm violating federal law? I've started noticing this little tagline on lots and lots of labels for lots and lots of products (I'm something of a compulsive label-reader) -- does anyone know what federal law they're talking about?


Out of Iraq in 2011?: From the Wall Street Journal:
  U.S. and Iraqi negotiators reached agreement on a security deal that calls for American military forces to leave Iraq's cities by next summer as a prelude to a full withdrawal from the country, according to senior American officials.
  The draft agreement sets 2011 as the date by which all remaining U.S. troops will leave Iraq, according to Iraqi Deputy Foreign Minister Mohammed al-Haj Humood and other people familiar with the matter.
Hat tip: Kevin Drum.

Judicial Biography Needed: Every modern Supreme Court Justice becomes the subject of one or more judicial biographies. It's a different picture in the court of appeals. Circuit Court Judges occasionally become the subject of a biography, but coverage is spotty. Of course, Gerald Gunther brought us the fantastic Learned Hand biography. And other judges have also been the subjects of biographies of varying qualities, including Frank Johnson, Skelly Wright, Bill Hastie, John Biggs, and Harold Medina, just to name a few.

  But who will write a biography of Judge Henry J. Friendly? As far as I know, no one has written a biography of Friendly. But Judge Friendly probably had the most lasting influence of any Circuit Judge of the 1960s and 1970s. Also, he seems to have been a fascinating and brilliant figure. Plus, his law clerks have gone on to great prominence, making the story of the judge all the more interesting. Altogether, Judge Friendly seems like a natural subject for a biography. But is anyone planning to write one? Someone should. (Full confession: I have sometimes thought it would be cool to try myself, but I have absolutely no training in such things so I doubt I would ever try.)

Wednesday, August 20, 2008

Michigan Appeals Court Voids "Reform" Initiative:

A state appellate court voted unanimously to remove a sweeping and controversial government reform initiative from the ballot, the Detroit News reports.

The ballot proposal, backed by Michigan Democrats and called Reform Michigan Government Now!, includes so many provisions that it is a "general revision" of the state constitution, which only a constitutional convention can accomplish, the court ruled in an opinion issued shortly before 6 p.m.

"Therefore, the constitutional power of a (citizen-led) initiative does not extend to this proposal," said the order signed by Judges Bill Schuette, William Whitbeck and Patrick Meter. "Consequently the initiative petition does not meet the constitutional prerequisites for acceptance."

The court ordered Secretary of State Terri Lynn Land and the Board of State Canvassers not to place the measure on the ballot.

The initiative, pushed by a group called "Reform Michigan Government Now," was pitched as series of good-government reforms to shrink and streamline the state government. In reality, the ballot initiative was cleverly designed to shift partisan control of all three branches of Michigan's government, as I discussed here and here.

An appeal of this decision to the state Supreme Court is near certain, as will be motions seeking recusal of the two Supreme Court justices who would lose their seats. I don't know enough about Michigan law to predict an outcome, but it seems clear to me the ballot initiative is an exceedingly cyncial effort to steal a state government, and a bad idea.

UPDATE: The court opinion is available here.


How Dangerous is the Russian Bear?

I agree with much of what new Conspirator Eric Posner says about Russia in his recent post. Under Putin, Russia has clearly turned against Western liberal values and reasserted an ugly form of traditional Russian nationalism. It is also clear that Putin has no sympathy for either the American project of spreading liberal democracy or the Western European effort to promote international human rights law.

At the same time, the new Russia is less of a threat to American global hegemony than many understandably fear in the aftermath of events in Georgia. Relative to its Soviet predecessor, Putin's Russia is weak in both hard military power and the ideological influence of "soft power." It will also be difficult for Russia to establish a working alliance with either China or the radical Islamists, the two other significant forces with an interest in undermining American dominance.

Let's take the hard power first. The Soviet Union was able to pose a serious military challenge to the US by pouring vast resources into its military - as much as 40 or 50 percent of GDP, according to some estimates. Today Russian military spending is a tiny fraction of America's (about 10%). Even if it wanted to, Putin's regime lacks the power to impose the kinds of draconian sacrifices on its people that it would need in order to rebuild its military power to Soviet-era levels. The poor performance of Russia's military in conflicts with weak adversaries such as Georgia and the Chechen rebels suggests that its forces have deteriorated in quality as well as quantity.

Russia's "soft power" deficit is even more glaring than its relative lack of military power. Unlike Communism, which at its height appealed to intellectuals and others all over the world, the ideology of Russian nationalism has little if any appeal to anyone who isn't Russian. Indeed, most of Russia's neighbors find it offensive and threatening, which is why they are now uniting behind Georgia and drawing closer to the West. States such as the Ukraine, Poland, and the three Baltic countries are no match for Russia individually; but they can certainly hope to counter it collectively - especially given the poor state of the Russian armed forces. The more nationalistic and aggressive Russia becomes, the more its neighbors - most of whom have powerful historical memories of brutal Russian imperialism - are likely to unite against it.

Russia will have great difficulty in cooperating with either China or the radical Islamists, the two other major forces in world politics that seek to challenge American dominance. China and Russia are competing for influence in the oil-rich states of central Asia, and the Russians are well aware that Chinese nationalists have longstanding territorial claims on Russia's far eastern possessions. This doesn't rule out occasional Russo-Chinese cooperation against the West, but it does make a close alliance unlikely. In the case of the Islamists, a Russian nationalist regime would be reluctant to engage in more than very limited cooperation because Russia itself has a large and potentially restive Muslim population (about 10% of its people). Strengthening radical Islamism increases the chance that Russia's own Muslims will start to resist Moscow's rule, and the Russians surely don't want to repeat their painful experience in Chechnya on a larger scale.

Finally, it is far from clear that Russia will continue on the course set by Putin. If oil prices decline and Putin's military adventures meet with setbacks, the political pendulum could swing back in favor of more liberal forces. Similar nationalist regimes have evolved into liberal democracies in many Latin American and East Asian states. The same thing could happen in Russia over the next decade or two. Although I don't have space to argue the point in detail, I don't think that Russian culture is any more intrinsically inimical to liberal values than those of Korea, Taiwan, or various Latin American states - all of which successfully transitioned from authoritarian nationalism to liberal democracy over the last 25 years.

The rise of authoritarian nationalism in Russia is a tragic setback for liberal values, and poses some difficulties for American foreign policy. But we should keep the magnitude of the threat in proper perspective. Putin's Russia is a serious menace to its neighbors, though even they can minimize the threat if they cooperate with each other and with the West. It is only a modest danger to us.


Good grief:

This just means yet another person much smarter than I will be writing for this blog.

Welcome Eric!

Police Drive 4,100 Miles to Serve Arrest Warrant, End up With the Wrong Guy: The Louisville Courier-Journal has the scoop. Thanks to Eck for the link.

Experiment with a No-Laptop Policy for Class:

Here's a message I sent out to my students a few weeks before the start of class about this. When the semester is done, I'll ask my students to fill out an anonymous survey, and I'll report both on that and on my personal conclusions. I don't know what the result will be (though I have my hopes and my guesses), but that's why it's an experiment.

Dear [Students]:

I'm very much looking forward to our class this Fall. As you know, law school classes — much more so than most large undergraduate classes — rely on class participation. I don't grade students' in-class comments, chiefly because I'm a big believer in fully anonymous grading. But I would like to see more and better class participation, because it helps both the participant and the other students learn, and because it makes the class more interesting for the students (and for me).

Because of this, this semester we'll be conducting an experiment: The rule will be

(1) no laptops in class — that's no laptops, not just no Internet access — but

(2) one student per day will take notes [on a laptop,] which will then be circulated to the entire class.

Several law professors at other schools, including some I know well and trust, have conducted such an experiment, and report that they have gotten great results. Class discussion, they say, is much better. Students are less distracted, both by things on their own laptops and on their neighbors'. Students don't feel pressured to take verbatim notes (since that's very hard to do in longhand on notepads), and instead focus on identifying the important points and tying them together. Students are therefore listening more actively, and are more ready to discuss things and answer questions.

Also, most of the other professors report, anonymous surveys at the end of the semester show that most students like this system more than the normal laptops-OK rule. (The few exceptions report that students are on balance indifferent to this new system.) So it sounds like a win-win, which is why I decided to try it here as well.

After the semester is over, I will ask you folks to anonymously report back on the results; you will then also be able to compare your in-class experience in this course with your in-class experience in the other courses, which to the best of my knowledge aren't conducting this experiment. While obviously the different subject matters might be a confounding factor, I think that on balance the survey will likely yield useful information. Armed with it, I'll know whether to keep on this track in future classes, or to switch back to the laptops-OK rule. And my colleagues might be able to take advantage of the results as well.

In any case, I wanted to give you some advanced warning, so that when class starts next Wednesday (August 20), you'll

(1) know what will happen,

(2) know that you need to bring a notepad and a pen (I found the four-color pens to be especially useful when I was a student), and

(3) know that you could leave your laptops in your lockers and save some back strain.

I'd also like volunteers to take notes for that class and the classes the following week; I'll soon have a more formal system set up for that. A special bonus for the volunteer notetaker: You won't get called on that day or the following class day. So please e-mail me if you'd like to volunteer. I in turn will e-mail all of you the syllabus in a couple of days.

Again, looking forward to seeing all of you next week,


Related Posts (on one page):

  1. Class Discussion:
  2. Libertarianism and Actions Within Institutions:
  3. Experiment with a No-Laptop Policy for Class:

The Volokh Conspiracy:

A few people have asked why I named this blog The Volokh Conspiracy. The blog began as The Volokh Brothers, but when I realized I wanted us to grow, I had to change the last word. I thought "The Volokh Gang," but then I thought some people might see it as derivative of the then-running political talk show The Capital Gang. I thought "The Volokh Group," but then I thought some people might see it as derivative of The McLaughlin Group. I also realized that the names were derivative of those shows, so I consciously looked for something different.

Conspiracy struck me as unusual, memorable, and a little (OK, only a little) amusing. First, I liked the incongruity of a conspiracy actually publicly announcing itself as a conspiracy. Second, it echoed "The Vast Right-Wing Conspiracy," to which we belong, and also "The Jewish Conspiracy," to which most of the charter members and since then most of the more recent members have also belonged -- but at the same time, as a self-chosen label, it also slightly mocked the term (just as many conservatives' embrace of the label "The Vast Right-Wing Conspiracy" slightly mocks the term, which was apparently originally coined by Hillary Clinton).

So that's how it came about, and I think it's worked well for us. And, hey, no prosecutors have started investigating us yet under 18 U.S.C. § 371 -- at least to our knowledge.


The Bear Is Back!

Thanks to Eugene for inviting me to join this blog. Let me start with a prediction. When historians write about the post-cold war era, which began in 1989, the date of its termination will not be 9/11/2001, as has been frequently claimed, but 8/7/2008, when Georgian forces attacked separatists in South Ossetia and Russia responded with an invasion. August 7 marks the end of American sole-superpowerdom, or hyperpowerness, or hegemony, or whatever you want to call it, an interval somewhat longer than but still very similar to the periods of global preeminence the United States enjoyed for a few years after World War I and World War II.

There are other notable similarities. In all three of these periods, Americans and others believed that an era of the rule of international law had begun, and in all of these periods, the United States was initially lauded for its leadership and then criticized for putting its interests first.

There are some differences, however. In the great powers era that ended with the world wars, national governments derived their authority from unembarrassed chauvinism — their peoples’ instinctive belief in their own ethnic, racial, or national superiority. With the cold war, the conflict was not between competing nationalisms but between competing ideologies — democracy versus socialism, capitalism versus communism. Today, the conflict is shaping up as one between an ideology, on the one hand, and a bunch of different nationalisms, on the other. On one side, we have American/European commitment to democracy and rights. On the other side, we have Russian and Chinese nationalism, and who knows what other countries with similar agendas will emerge over the next few decades.

These differences play out in many ways. Americans believe that every country should have our system or at least a constitutional democracy; Europeans similarly believe that every country should respect human rights. The Chinese and Russians, by contrast, are preoccupied with restoring or promoting national greatness — something that few Europeans and even Americans would say about their own countries. The Americans and the Europeans – well, the west, I guess – are willing, at cost to themselves, to pressure states (like Sudan) that violate western values. Russia’s main concern is protecting – Russians, those who live in neighboring countries. China seeks to do deals with other countries, not to convert them to the Chinese system.

Of course, America’s ideological goals serve its interests; they are just the goals that American governments believe that Americans ultimately support. It will be hard for future historians to see the post-Cold War period as anything other than a series of steps that the United States took to expand its sphere of influence, in Africa, in the Middle East, in Eastern Europe, and in Central Asia, into the vacuum left by the collapse of the Soviet Union. But each step was accompanied by a consistent ideological agenda: we are doing this for your own good! China’s rise has slowed down this agenda in Africa, and Russia’s recovery will almost certainly defeat it in Central Asia. The United States won the battle of ideologies in 1989, but its global power was only a temporary thing, as is becoming clearer every day.

The implication for international law is troubling. The busy international legal activity that occurred during the post-Cold War era – the establishment of international courts, the involvement of the Security Council, the advance of international trade law – will slow down and perhaps even reenter the deep freeze into which it was shunted during the Cold War. The irony is that liberal internationalism could advance only as long as the United States was the sole superpower and in the mood to advance it.


Informational Cascades:

A good illustration from today's session of my Criminal Law class, which was the first law school class these students ever had. I passed around a seating chart, and asked students to write their first names, last names, and any pronunciation key for their names. At the end of the class, I got the chart, and nearly every student included a phone number.

Why?, I thought. I didn't think I said anything that could have been misheard as a phone number.

And then I realized what must have happened: The first student included a phone number, for whatever individual reason (perhaps because the student thought it would be helpful, or because this was asked in some classes at the university the student went to before). Then the next student saw this, assumed a phone number was requested (relying on the first student's judgment rather than his own memory of what I asked). And once the first few boxes had phone numbers as well as names, the path was set: Nearly everyone else followed suit.

Had the first student not included the phone number, I'm pretty sure this wouldn't have happened; likewise if this hadn't been the first class the students had. (I wonder, by the way, whether people will do the same in other classes. I expressed some surprise at seeing the phone numbers after class, but not loudly, so only a few students heard it.) But this one person's decision led the rest of the students, quite rationally, to do what they saw others doing.


N.Y. Times Quotes Volokh Conspiracy:

"I think it is fair to say that the D.C. Circuit has repudiated the vast bulk of the Bush administration's clean-air regulatory reforms, which were the administration's most notable and significant (if not always wise) environmental policy initiatives," Jonathan Adler, a law professor at Case Western Reserve University, commented on the case on a legal affairs blog, The Volokh Conspiracy.

Not the first such quote (I think there have been four other New York Times quotes of our posts before this one), but always nice to see.

UPDATE: Whoops, forgot to include the link to Jonathan's original post.


Eric Posner Joins Our Merry Band:

I'm delighted to report that Prof. Eric Posner of Chicago Law School is joining us as a coblogger.

Eric's scholarship has covered a wide range of topics, including administrative law, bankruptcy, constitutional law, contract law, foreign relations law, immigration law, international law, law and economics, law and social norms, and national security law. He has written or cowritten four books and ninety articles, and he's one of the twenty most-cited U.S. law professors in any field and of any age cohort, as well as being the second most-cited in law and economics (after Richard Epstein, who is more than twenty years his senior). I'm very much looking forward to Eric's contributions.


Tuesday, August 19, 2008

Gender and Law Reviews: Back in 2005, we had a thread on the topic of gender and law review placements. The question was, why are so many of the placed articles in top journals authored by men? Minna Kotkin has just revived the question with a new draft article, "Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the 'Top Ten' Law Reviews". Professor Kotkin's conclusion: A disproportionate number of selected articles were authored by men, and explanations other than "unconscious bias" are unsatisfactory. As a result, journals should reexamine their selection processes (among other things).

  My conclusion in 2005 was that the gender disparities in placement were a pretty direct result of the gender disparities in submission numbers. When we opened up this issue for comments back then, the comments from former articles editors proved illuminating. The evidence was just anecdotal, of course, but it suggested that most articles received by the top journals are by men. Here's a selection from a few commenters:
1) I was an articles editor only a few year ago, and though I could not give you exact numbers, there definitely was no gender equality in article submissions — there were significantly more submissions authored by men.

2) I sat on the Essays Committee of The Yale Law Journal this year, and the bulk of our submissions appeared to come from men — not just in con law but in all specialties.

3) Yale Law Journal, several years ago — not even close — submissions by men outnumbered submissions by women maybe 3 to 1 — just a rough estimate.

4) As an articles editor for a tech journal at a top-tier school, the vast majority of submissions were from males.

5) Just took a sample of my submissions database from our last volume (of a top-tier journal), and of 200 submissions sample (out of 1956 total), 72 appeared to be by women (at least based on names). The ratio among expedite requests looks roughly the same (33 out of a sample of 100 were women). So if that holds up, there's certainly a skew in the authorship on the order of 2:1.

6) I was an articles editor on the UCLA Law review about 4 years ago. By far the majority of 120+ submissions that I can recall doing primary review on were written by men.
  Professor Kotkin recognizes this possibility at pages 50-54, where she considers the possibility that women may submit fewer articles because they are forced to take on other commitments (whether service requirements or family commitments) or because they write just as much but lack the confidence to submit their work to journals. But I tend to think that this doesn't quite grapple with the issue. If it turns out that the real gender disparity comes with who is submitting articles rather than the selection process — for whatever reason — then I'm not sure how reexamining the selection process really addresses the issue. I suppose we'll have to wait for a journal to do a study of its own submissions, formally comparing the gender ratio of its submissions with the gender ratio of the accepted articles, to have a better sense of that.

  Hat tip: Dan Markel.

Breaking News: The claims that Big Foot has been discovered are just a hoax. The search goes on, I guess.

Online debate about SSM:

The Federalist Society has posted a lively but civil debate about gay marriage on its website. The exchange is available here.

The participants are: Andrew Koppelman (Northwestern), Bob Nagel (Colorado), Amy Wax (Penn), and me. I'm a big fan of the work of the other three participants and it was a pleasure to be involved. We were limited to about 500 words per post, a limit I honored more in the breach — which won't surprise VC readers.

Thanks to the Federalist Society, and especially to Marisa Maleck, for putting it together.


In Defense of Price Gouging:

As Todd notes, the state of Florida is stepping up its misguided efforts to combat "price-gouging" in anticipation of Tropical Storm Fay. Unfortunately, this issue tends to come up anytime there is a hurricane or other natural disaster.

I was going to write a post about how harmful anti-price gouging laws are and why they actually end up exacerbating the shortages of scarce goods that they seek to alleviate. But economist Glen Whitman said all that needs to be said in this excellent 2003 post, written on the occasion of a previous Florida hurricane:

[H]igher prices induce suppliers to bring more of the scarce good – generators, batteries, flashlights, etc. – to market. Tyler [Cowen] responds by pointing out that, in the short run, the supply is fixed – but then he immediately offers the obvious counterpoint, which is that “in the long run the economy will stand readier with emergency flashlights.” Exactly so, and this seems to me a decisive argument. In order to stock generators and such, shop owners have to take up valuable shelf space that could have been used for other items. The added profit they can reap during times of crisis is the financial reward that compensates them for making sacrifices during ordinary periods. A policy that clamps down on “gouging” during a crisis makes it less likely that necessary items will be available during the next crisis. Also, . . . the higher prices attract suppliers in non-crisis regions to transport their goods to the region where they’re needed most.

I hope that lawmakers and voters will come to understand these realities, and repeal anti-price gouging laws before the next big natural disaster occurs. But I'm not optimistic about it.

Related Posts (on one page):

  1. In Defense of Price Gouging:
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The Upside of Falling Home Prices:

The Boston Globe has a good article on how home foreclosures in Massachusetts are allowing lower-income families to purchase houses in areas that were previously too expensive for them:

As devastating as it has been for families who have lost their homes, the foreclosure epidemic has presented an unusual opportunity for a small but growing group of buyers previously priced out of Boston's real estate market. Fernandes [a lower-income African immigrant], for example, got his building for $271,500, just two years after the prior owner agreed to pay $540,000 for it.

Immigrants and other property pioneers have long been a force in reviving downtrodden neighborhoods. But their purchases of foreclosed and abandoned properties are particularly crucial now because these new homeowners are key to stabilizing neighborhoods racked by the mortgage crisis...

Jose Cruz paid $255,000 in cash for a three-decker [in Boston] in April and invested $175,000 in rehabbing the apartments. He rented the units and says neighbors have congratulated him for his work. "The whole neighborhood is going to be better," Cruz said.

The building's previous owner bought it for $400,000 in December 2006 and financed the entire amount with two mortgages - a so-called 80/20 loan package that was popular during the boom years and is considered responsible for many foreclosures.

Those kinds of mortgages are now much harder to get. And while some buyers are borrowing the full value of the property - or more - they're getting homes at much cheaper prices than the prior owners paid.

When housing prices fall - especially in extremely expensive cities such as Boston - poor and lower-middle class homebuyers benefit. This point applies not only to the foreclosed properties discussed in the Globe article, but to other houses as well. For lower-income home buyers, it doesn't matter if they get a more affordable price because the house they're purchasing has gone through foreclosure or simply because real estate prices are down in the area more generally. Those lower-income families who rent and have no intention of buying a home also stand to benefit. Rent levels are sensitive to real estate prices; when the value of real estate in a given area falls, rents are likely to go down as well.

All of these points are straightforward applications of basic economics. When the price of any good falls, it becomes easier for lower-income consumers to purchase it. But this simple reality is too often ignored in the recent outcry over falling home values. It's important to remember that, in addition to making the real estate market more efficient, the bursting of the housing bubble has also created valuable new opportunities for lower-income families.

In Boston and other expensive cities, the government has for too long artificially propped up housing prices through restrictive zoning laws, government subsidization of dubious mortgages and other such measures. Left-liberals who have historically complained (with some justice) about the shortage of affordable low-income housing in these cities should be particularly enthusiastic about the recent decline in real estate prices. At the very least, the resulting benefit to lower-income families gives liberals - and the rest of us - additional reason to be skeptical about the desirability of government-subsidized efforts to prop up real estate prices by guaranteeing mortgages, bailing out lenders and borrowers, and other similar measures that seem to be politically popular at the moment. If we genuinely want to help the less affluent, we should let this market correction run its course.

UPDATE: I have revised the last paragraph to eliminate some poor phrasing.


"Spying Employers Raise Legal Hackles": The National Law Journal has this interesting report.

Gasoline "Price-Gouging":

The State of Florida has activated its price-gouging hotline in anticipation of Tropical Storm Fay. "Price gouging statute violators could be fined $1,000 per violation, up to $25,000 for multiple violations in one day."

Florida gas stations are starting to run out of gas in anticipation of Tropical Storm Fay:

Gas stations around Southwest Florida seem to be well-supplied this afternoon as residents prepared for tropical storm Fay.

The Florida Department of Environmental Protection surveyed 79 gasoline facilities in Lee, Collier and Charlotte counties. Only four reported being out of fuel.

Charlotte County seems to be the most fuel-strapped. It had 11 stations that reported being “low on fuel” and two that were out.

In Lee County, 24 stations reported having “plenty of fuel,” one was out and none of them reported being low. In Collier, 25 stations reported plenty, four were low and one was out.

Goza said two of the 7-Elevens in Cape Coral had run out of gas Sunday, but were now fully stocked.

At the Murphy USA station across Colonial Boulevard in Fort Myers, business was livelier. Cars and trucks lined up two to three deep at each pump. Diesel fuel was out, but all other tanks seemed fine.

It is almost as if the two stories are related in some way...

Anyone who witnesses the law of supply and demand being honored, I mean "suspects price gouging is asked to call 866-NO-SCAM."

Related Posts (on one page):

  1. In Defense of Price Gouging:
  2. Gasoline "Price-Gouging":


People often talk about "pendulum swings" in attitudes or laws. This seems to me a misleading metaphor.

It's surely true that public opinion and legal rules often move in one direction and then move back in some measure. The perceived excesses of some change -- the sexual revolution, the broadening of tort liability, the changes in perceived differences between men and women, and so on -- will often lead to a reaction that undoes some of the change.

But a pendulum, I think, conveys a different image: It conveys the image of moving back to where you started. My sense is that this very rarely happens. Often the later change will move back only part of the way to the beginning; often it will move to a different place altogether, which shares some aspects of the initial position but which is very different along a different axis. (I've heard this described as "evolution along a spiral," though that phrase might have some baggage attached to it, from Hegel and his heirs.)

And I think there is some harm from the inaccurate image that the pendulum conveys -- it can encourage a mistaken smugness (well, despite all those changes, we're back where we started), resignation (everything is fated to return to what it was), or perception of historical determinism. I don't support literalism in interpreting figurative usages, but the literal meaning of the metaphorical term generally does tend to affect the image that's being sent.


"Do We Need a New Fourth Amendment?": I have posted a new draft on SSRN: Do We Need a New Fourth Amendment?, forthcoming in the Michigan Law Review book review issue. It's a review of Professor Christopher Slobogin's new book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Here's the abstract:
  In his new book, 'Privacy At Risk,' Professor Christopher Slobogin offers a new approach to the Fourth Amendment designed to impose more restrictions on government surveillance practices. He contends that the Fourth Amendment should be organized around a proportionality principle: Every investigative technique should require some cause, and public opinion as to the intrusiveness of the technique should determine how much cause is required. Professor Slobogin applies this principle to transactional surveillance and closed circuit television and generates a complex set of proposed Fourth Amendment rules to govern their use by government actors.
  In this book review, Professor Orin Kerr argues that even a Supreme Court sympathetic to Slobogin's policy preferences should be wary of his proposal. Slobogin's method suffers from two major flaws. First, the proportionality principle does not accurately weigh the interests it claims to weigh. Public perceptions of intrusiveness do not measure privacy interests, and the government's level of proof does not measure government interests. Further, the method stacks the deck in favor of limiting government action by ignoring the context in which techniques are used. Second, a future Supreme Court could reach Slobogin's results in much simpler ways. Slobogin's approach is surprisingly complicated, as it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. Easier paths exist if a future Supreme Court majority wishes to regulate transactional and public surveillance under the Fourth Amendment.
Also, here's the first paragraph of the review:
  Imagine the year is 2035. Two terms of President Barack Obama, two terms of President Hillary Clinton, and two terms of President Corey Booker have led to a new Supreme Court. The liberal majority led by Chief Justice Harold Koh is eager to make some waves, and the Justices have set their eyes on the Fourth Amendment. They want to design a new Fourth Amendment that will match their civil libertarian privacy preferences, and they are relatively unconcerned with pragmatic limitations on judicial rulemaking. They want to return the Court to what they see as its rightful place at the center of American privacy law, and they are looking for a method that combines some traditional principles with a new set of innovations.
  Comments welcome, as always. (It's just a rough draft, so no need for comments about typos and the like — we'll get them later on.)

Another EPA Air Rule Goes Down:

Today the U.S. Court of Appeals for the D.C. Circuit voided yet another Bush Administration Clean Air Act regulation in Sierra Club v. EPA. The majority opinion by Judge Griffith (joined by Chief Judge Sentelle) begins:

The 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The Environmental Protection Agency (“EPA”) promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. We vacate this rule because it is contrary to the statutory directive that each permit must include adequate monitoring requirements.

Judge Kavanaugh has a brief dissent, which begins:

I agree completely with the majority opinion about bedrock principles of statutory interpretation. The plain meaning of the text controls; courts should not strain to find ambiguity in clarity; courts must ensure that agencies comply with the plain statutory text and not bypass Chevron step 1. And I strongly align myself with the majority’s quotation from Justice Frankfurter about the best tool of statutory interpretation: “Read the statute; (2) read the statute; (3) read the statute!” Maj. Op. at 10. In this case, however, I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule.

This decision comes one month after the D.C. Circuit completely vacated the Bush Administration's Clean Air Interstate rule in North Caroline v. EPA. Given the administration's other losses on New Source Review and mercury, among other things, I think it is fair to say that the D.C. Circuit has repudiated the vast bulk of the Bush Administration's clean air regulatory reforms, which were the Administration's most notable and significant (if not always wise) environmental policy initiatives. The Administration devoted more time and effort to these reforms than any other environmental initiative, and they have precious little to show for it.

UPDATE: The NYT covers the decision (and quotes this blog post) here.

UPDATE: The Washington Post reports here, and the WSJ here.


Hirabayashi Hoax:

Was there ever a real threat the Japanese would invade the Pacific coast during World War II? Historians think not, but with the benefit of hindsight. In 1943, however, military attorneys argued otherwise, maintaining the threat was serious and justified a racial curfew on those of Japanese descent (including Japanese Americans). These arguments helped persuade the Supreme Court, which held in Hirahayashi v. United States that the curfew was constitutional given the severity of the threat.

But did the military ever really fear a Japanese invasion? A new paper by Eric Muller suggests not. In "Hirabayashi: The Biggest Lie of the Greatest Generation," Muller presents archival evidence that "military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans." Muller argues national security had little to nothing to do with the racial curfew and (worse) the government attorneys who filed the briefs in Hirabayashi knew it. According to Muller, "the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court's Hall of Shame, alongside Korematsu, Dred Scott, and the Court's other biggest mistakes." He has more on the paper here.


Rethinking the Drinking Age:

A number of college and university presidents and chancellors want to rethink the drinking age. According to a statement released by The Amethyst Initiative, they believe the 21 year-old drinking age is not working and, like prohibition, may be counterproductive.

A culture of dangerous, clandestine “binge-drinking”—often conducted off-campus—has developed.

Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

They hope to initiate a public discussion and reconsideration of the 21 drinking age by public officials. I wish them luck. The Plain Dealer reports on the initiative here.

Related Posts (on one page):

  1. Lose Two, Gain Fifteen:
  2. Rethinking the Drinking Age:

A Record Congress?

The WSJ reports:

Barring a burst of legislative activity after Labor Day, this group of 535 men and women will have accomplished a rare feat. In two decades of record keeping, no sitting Congress has passed fewer public laws at this point in the session -- 294 so far -- than this one. That's not to say they've been idle. On the flip side, no Congress in the same 20 years has been so prolific when it comes to proposing resolutions -- more than 1,900, according to a tally by the nonpartisan Taxpayers for Common Sense. . . .

The resolutions, which generally don't carry the force of law, can originate in either the House or Senate. However, some types of resolutions establish the federal budget, authorize the president to go to war, or condemn actions such as the genocide in Darfur. Even among the 294 laws passed thus far, many were symbolic in nature. Many of the post offices named by this Congress honor servicemen and -women killed in Iraq and Afghanistan. In the 435-member House, fully one-quarter of the workweek is typically devoted to debating and passing symbolic measures.

On the one hand, it seems we have a "do-nothing Congress." On the other, given what they might do, do we really want this Congress to do more?


AALS Responds to Boycott:

In response to calls for a boycott of the Manchester Grand Hyatt in San Diego because its owner gave substantial contributions to California's anti-gay-marriage ballot initiative, the Executive Committee of the AALS has released the following statement.

The AALS 2009 Annual Meeting will take place January 6-10, 2009, in San Diego, California. Several years ago the Association booked rooms at the San Diego Marriott and the Manchester Grand Hyatt. In the last few weeks there have been suggestions that the Association should boycott the Hyatt because its owner has contributed money to a ballot initiative designed to overturn the California Supreme Court's May decision in favor of same-sex marriage. In addressing this issue, the Executive Committee has sought to ensure that the Annual Meeting serves the needs of all participants to the maximum extent possible given our contractual obligations to the hotels.

Our contracts with the hotels provide that each hotel reserve a block of guest rooms, and leave to the AALS the choice of where to locate the AALS Registration, Exhibit Hall, Section Programs, Presidential Programs, and House of Representatives meetings. We will honor our contracts with both hotels, and we have exercised our option to hold all AALS events at the Marriott to ensure the maximum participation by our members.

Law schools and other organizations hosting meetings and receptions will be contacted soon by an AALS meetings manager regarding the location of their events. Faculty and staff at law schools will soon receive housing information and you will be able to choose your individual hotel room on a first-come, first-served basis in accordance with the usual housing procedures.

Professor Bainbridge thinks the AALS "caved" to the boycott organizers, while others are not so sure. Dave Hoffman offers a translation: "we agree with you that merely contributing to the SSM amendment is beyond the pale, but we (sadly) can't breach our contracts." To which Nato Oman offers this amendment: "the cost of our moral turpitude in staying at a Hilton is less than the damages that we might be required to pay in the event of breach." Paul Caron rounds up more responses here.

Personally, I am a bit confused by the whole thing. The AALS statement seems to indicate that a boycott would be justified if it did not requiring breaching its contracts. This would explain the compromise position — keeping a contract with the offending hotel while attempting to accommodate boycott supporters by holding the primary events elsewhere. But here is where the confusion sets in. The purported reason for the boycott is Grand Hyatt owner Doug Manchester's support of the anti-gay-marriage campaign. And yet the other hotel the AALS will be using — the San Diego Marriott — appears to be owned by Doug Manchester as well.

IMPORTANT UPDATE: It seems that Manchester was the developer of the San Diego Marriott, but he sold his interest in 2008, so he is no longer the owner. Details here and here.


Irony Alert: Writing advice from Judge Selya of the First Circuit:
Immigration judges would do well to take pains to use more straightforward language. The clearer a judges findings, the easier they are for the parties to assess and for a reviewing court to evaluate.
What is good for the Bruce is good for the gander, I say. Hat tip: AL&P.

Monday, August 18, 2008

McCain Campaign Attacks Key VC Demographic:

From today's blog: "It may be typical of the pro-Obama Dungeons & Dragons crowd to disparage a fellow countryman's memory of war from the comfort of mom's basement..."

The McCain campaign is correct in wanting to rebut an ugly smear from the Daily Kos. But why drag "the Dungeons and Dragons crowd" into it?

Will present and former D&D players--of whom there are probably millions--consider voting Libertarian? A LP Convention probably has the highest percentage of past/present D&D players of any gathering in the world, other than a science fiction convention. And within the LP, the word "dungeonmaster" is never used as an epithet.


California Assembly Passes Law To Protect Children, Against Virtually Nothing:

Friday, the Assembly passed this bill (Assembly Bill 534), by a 72-0 vote:

Any person who [making the information available to another person through any medium] [any] informationdescribing or depicting a child, the physical appearance of a child [defined as age 14 or younger], the location of a child, or locations where children may be found with the intent that another person imminently use the information to commit a crime against a child and the information is likely to aid in the imminent commission of a crime against a child, is guilty of a misdemeanor, punishable by imprisonment in a county jail for not more than one year, a fine of not more than one thousand dollars ($1,000), or by both a fine and imprisonment. [Emphasis added.]

This is likely constitutional — but only because it's so narrow as to cover virtually nothing, except what is already almost always felony aiding and abetting. It certainly doesn't cover the menacing behavior of "pedophile blogger" Jack McClellan, whose behavior I suspect prompted the law.

The Supreme Court has recognized an exception to First Amendment protection for so-called "incitement" — "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (That's the Brandenburg v. Ohio test.) The statutory language seems clearly borrowed from the incitement test, and the statute is therefore likely constitutional. It's true that it speaks of provision of information rather than advocacy of conduct, but I suspect courts will read the Brandenburg exception to equally cover pure information and advocacy, so long as both are intended to and likely to produce imminent lawless action. Information is at least as dangerous in such a situation as is advocacy (and may be more dangerous), and since it's no more constitutionally valuable in such a situation than is advocacy.

But while the narrowness of the proposal makes it constitutional, it also makes it largely pointless. "Imminent," in the Court's incitement jurisprudence, basically means "to happen within a few hours or at most a few days." The Court has expressly concluded (in Hess v. Indiana) that when the contemplated action is "at some indefinite future time," the imminence requirement isn't satisfied. So all that the law will cover are statements like, "Here's where you can find that girl whom you're planning to rape or abduct tonight," which would usually qualify as aiding and abetting of the crime — a felony or an attempted felony — in any event. (The one situation where the law might make a difference is if no felony is actually attempted by the recipient; since criminal liability for aiding someone is derivative of that someone's committing or attempting a crime, generally speaking an attempt to aid someone who does nothing with the aid isn't criminal aiding and abetting. But even there it may well be criminal solicitation, or in some situations evidence of a criminal conspiracy.)

On the other hand, the statements that McClellan was making, and that probably aren't already covered by the law (partly for First Amendment reasons) — "Here's a picture of this girl, isn't she hot, wouldn't it be great if it was OK for us adults to have sex with her" — wouldn't be covered by this statute, either: If they assist any action, it is action "at some indefinite future time," which under Hess doesn't qualify as "imminent" action.

Of course, California courts have the power to read the statute more broadly than the U.S. Supreme Court's incitement exception. But I doubt they will, given how clearly the statutory text is modeled on that preexisting legal rule. (It's a longstanding rule of statutory construction that statutes that appear to refer to existing legal doctrines will be interpreted as incorporating the existing definitions of those doctrines.) And if they do interpret it so broadly, that will likely make the law unconstitutional.

The statute also provides that, "Any parent or legal guardian of a child about whom information is published in violation of [the provision quoted above] may seek a preliminary injunction enjoining any further publication of that information." I think that's likely unconstitutional under Vance v. Universal Amusement Co., for reasons discussed here.

If you're really hungry for more — much more — on the problem of crime-facilitating speech, you might take a look at my Stanford article on the subject.


American Ignorance About British Politics:

I have not seen a recent detailed survey about American voters' knowledge of British or European politics, similar to the survey of British knowledge about America discussed in my last post. However, a 2006 Zogby poll found that about 50% of Americans could not identify Tony Blair as the Prime Minister of Great Britain; this at a time when Blair's government was America's most important ally in Iraq and on many other important issues.

On the plus side, the poll did find that one prominent Briton was correctly identified by some 57% of Americans: Harry Potter. However, even Potter was not correctly identified by as many Americans as the Three Stooges (73%) and Homer Simpson (60%).

Related Posts (on one page):

  1. American Ignorance About British Politics:
  2. Political Ignorance in Britain:

"Drink the Kool-Aid; Join the Cult": Paul Horwitz offers the following advice to entering first-year law students: "Drink the Kool-Aid."
Joining a profession is a little like learning a new language, and a lot like joining a cult. (Or "new religious movement," for the scholars.) Don't resist it. There's a wonderfully awful book called Anarchy and Elegance, about a year spent by a journalist as a Yale 1L. He writes quite accurately about how law school changes your mindset, but by standing outside the process and resisting it almost entirely, he fails to learn half of what he could and to understand most of the other half. I am not advising you to abandon any critical perspective on the law and the legal profession, on professionalism and acculturation in general, and on law school. But if you are only critical, without willingly absorbing any of what you are learning, you will become a half-educated cynic. To a certain degree, to get the most out of law school -- the most education, but also the most joy -- you must give yourself over to the process and allow law school to remake your mind a little. There will be time enough to cast a critical eye back over what you've learned and to ask whether all of the law and the legal profession's assumptions are correct -- indeed, you'll get plenty of that in law school itself, given my suspicion that a decreasing number of law professors actually "think like lawyers," for better and worse. But you've got to immerse yourself first. So, drink the Kool-Aid; join the cult.
That was actually advice item #6 out of a list of 7 items, but I thought it was the most provocative. Check out the post for more.

How to Read a Legal Opinion: Today is the first day of class for many first-year law students, so I figured I would remind law student readers of my essay, How to Read A Legal Opinion: A Guide for First-Year Law Students. To read it, click on the link, click on "Choose Download Location," and then pick one of the links; you'll then get a formatted .pdf copy of the article.

Interesting Quote from Judge Silverman of the Ninth Circuit, rejecting a claim that a LimeWire user had a reasonable expectation of privacy in his files exposed to other users on the network because he didn't realize the peer-to-peer software was configured to allow other users to observe his files:
To argue that [he] lacked the technical savvy or good sense to configure LimeWire to prevent access to his pornography files is like saying that he did not know enough to close his drapes.
United States v. Ganoe.

Former Prisoners of War Never, Ever Cheat?:

Has public discourse really been reduced to this level? "The insinuation from the Obama campaign that John McCain, a former prisoner of war, cheated is outrageous," Ms. Wallace said.

I'm afraid I know the answer to my own question. I don't have any reason to believe McCain "cheated," but I hope we don't get into a situation where any criticism of McCain is reduced to "attacking a former prisoner of war" (and, for that matter, than any criticism of Obama is reduced to "attacking the first African American presidential hopeful").

UPDATE: Too bad Edwards isn't a "former prisoner of war." Maybe he could have quashed the initial Enquirer investigations by pointing out how outrageous it is to suspect a former prisoner of war of cheating. Somehow, the insinuation that a multi-millionaire trial lawyer cheated doesn't sound outrageous at all.


Political Ignorance in Britain:

A recent survey shows considerable ignorance about US politics and foreign policy in Britain. As the Daily Telegraph reports:

A poll of nearly 2,000 Britons by YouGov/PHI found that 70 per cent of respondents incorrectly said it was true that the US had done a worse job than the European Union in reducing carbon emissions since 2000. More than 50 per cent presumed that polygamy was legal in the US, when it is illegal in all 50 states....

The survey showed that a majority agreed with the false statement that since the Second World War the US had more often sided with non-Muslims when they had come into conflict with Muslims. In fact in 11 out of 12 major conflicts between Muslims and non-Muslims, Muslims and secular forces, or Arabs and non-Arabs, the US has sided with the former group....

Asked if it was true that "from 1973 to 1990 the United States sold Saddam Hussein more than a quarter of his weapons," 80 per cent of British respondents said yes. However the US sold just 0.46 per cent of Saddam's arsenal to him, compared to Russia's 57 per cent, France's 13 per cent and China's 12 per cent...

Almost a third of Britons believe that "Americans who have not paid their hospitals fees or insurance premiums are not entitled to emergency medical care"; by law such treatment must be provided.

More than half the respondents believed that polygamy is legal in some US states, while it is illegal in all US states.

The survey results suggest that political ignorance about the United States is widespread in Britain. On the other hand, some of the survey questions described are relatively difficult (e.g. - the percentage of Saddam Hussein's weapons purchased from the US). Also, there is little reason for Americans to crow too much. Survey research shows that political ignorance is ubiquitous in this country as well. I haven't seen a recent survey of Americans' knowledge of European politics similar to the above survey of British knowledge about the US. But I have little doubt that the results would be no more impressive than the British ones, and quite likely would be even worse.

One could argue that knowledge of a foreign country's policies is less important than knowledge of one's own. This is true to an extent. However, the US and Britain are longtime allies, and the foreign policies of one have major effects on the other. And American and European domestic policies are often held up as either positive or negative examples for the other. So it would be valuable for British voters to possess at least minimally accurate knowledge about the United States and for American ones to have comparable knowledge of Europe.

None of this means that the British public (or the American one) is "stupid." Political ignorance is not stupidity. Rather, the problem is that it is perfectly rational for even most highly intelligent citizens to be ignorant about politics. However, as the Telegraph article notes, such ignorance can often influence public attitudes and government policy in harmful ways.

Related Posts (on one page):

  1. American Ignorance About British Politics:
  2. Political Ignorance in Britain:

Charles Isaac Volokh,

"Charlie" or "104" for short, born 8/12/08 at Memorial Hermann Hospital in Houston. For those of you who follow the stats, he weighed 9.5 lobsters at birth and was 21.5 inches long. (Bonus points if you can figure out why he's 104. [UPDATE: The answer is in the fourth comment to this post, so if you want to figure it out yourself, try to do so before reading the comments.] Once you've figured that out, it is also a Useful Fact that 8 × 12 + 08 = 104. Unrelatedly, 8 + 12 + 08 is a perfect number.)

Related Posts (on one page):

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

Sunday, August 17, 2008

McCain on Water: Bad Politics & Bad Policy:

Last week, Senator John McCain told Colorado's Pueblo Chieftan that he thought the 1922 Colorado River Compact should be renegotiated due to the increasing demand for water in downstream states to account for population changes and increased water demand in places like Nevada, Arizona, and southern California. This has made folks in Colorado none too happy. According to Bob Ewegen, this is the sort of thing that could (and should) cost McCain Colaorado's nine elctoral votes come November.

The problem, from Colorado's perspective, is that in the 76 years since the compact was signed, California, Nevada and Arizona have grown much more rapidly in population — and political power — than the upper basin states. So when the lower basin states talk about "renegotiating" the compact, that's their code for a process of give and take — in which Colorado, Utah, New Mexico and Wyoming give and California, Arizona and Nevada take.
Someone should have reminded McCain that in Colorado whiskey is for drinking and water is for fighting.

However politically ham-handed McCain's comments were, they were no better as a matter of policy. There's no need to renegotiate the water allocations and take water away from upstream states. Rather, if Arizona, Nevada, and California demand more water, they should simply pay for it. The best way to deal with shifts in water supply and demand brought about by demographic and environmental changes is through water markets. Particularly if current projections about the effect of climate change on Western water supplies are accurate, the West needs more robust water markets, not more administrative reallocations or "renegotiations."


Sunday Song Lyric: Isaac Hayes died last week. Likely best known for the title song to "Shaft" (and perhaps, to younger generations, for his portrayal of Chef on South Park), Hayes career as a singer, songwriter, and producer was actually quite wide ranging.

Reason's Jesse Walker penned a brief tribute to Hayes, and on his recommendation here's a link to the lyrics of "When Something Is Wrong with My Baby," recorded by Sam & Dave (and later covered by the likes of Hall & Oates, Linda Rondstadt and Aaron Neville, and Travis Tritt and Patti Labelle). Here's how the song begins:

When something is wrong with my baby
Something is wrong is me
And if I know that she's worried
I know I'd feel the same misery

We've been through so much together
We stand as one
That's what makes it better
When something is wrong with my baby
Something is wrong with me