The Volokh Conspiracy

If you read the blog, live in Massachusetts, but aren’t a U.S. citizen — whether you’re a permanent resident, on a student visa, on an employee visa, or some such — please drop me an e-mail at volokh at law dot ucla dot edu. (I will keep the e-mail confidential.) Many thanks!

David French writes at National Review Online:

I don’t have time to detail Eugene’s argument in all its complexity, but the one sentence summary is: Public universities are not constitutionally compelled to provide government benefits (like room access and student fee funding) to “discriminatory” Christian student organizations.... [Here is] his post’s primary shortcoming:

Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).

Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.

Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian Legal Society v. Walker, a similar case, the Seventh Circuit found Healy to be “legally indistinguishable” and then went on to apply Dale to decide the precise associational issue.

On the university campus (this qualifier is critical), the Supreme Court has clearly established the following: Student organizations have a free-association right in recognition; religious student organizations have a right to access university facilities; and religious student organizations have a right to access student-activity-fee funds. On and off campus, expressive organizations have a free-association right to exclude those who don’t share their beliefs. 

I’ll have more to say on this topic when I have time, but it is simply wrong to phrase this as a “government benefits” case. It is a governmental obligation to provide facilities access to Christian student groups (Widmar) once they’ve opened those facilities for use by other groups. Similarly, it is a government obligation to fund religious student groups from mandatory student activity fees (Rosenberger, Southworth) if other expressive organizations are funded. Moreover, the Supreme Court has held that student activity fees are a fund that belong to the students — and not “government funds” in the classic sense.

What universities have done is defy their obligations by creating two tiers of access — a right of access for those groups that comply with expansive nondiscrimination policies (including policies that prohibit Christian groups from reserving leadership for Christians, thereby destroying their ability to guarantee the integrity of their message) and the leftovers for everyone else, or even no access at all if “recognized” groups have reserved all space (or taken all the funds). This action essentially overrules Healy, Rosenberger, and Widmar through the back door.

Once again, this (relatively) short post doesn’t address all of Eugene’s comments, so there will be more to say. However, he did ask that any critics address two questions he raised: Can a university require a democratic process for student organizations? No, it cannot. And can it require student leadership? Perhaps, but only because courts have long recognized a distinction between the free-speech rights of students versus off-campus speakers or groups, with the forum created for the students and student groups. See, for example, Widmar.

I look forward to further discussion, but I would submit that by phrasing this as essentially a “government benefits” case, Professor Volokh is missing the point. Student-organization recognition isn’t a benefit; it’s (as the Supreme Court has said) a right.

I much appreciate Mr. French’s response, but here’s why I don’t think it quite works:

1. The government of course has no obligation to fund student groups, or to give them access to university classrooms, bulletin boards, and the like. In that respect, such access is indeed a “government benefit.”

2. Of course, Rosenberger and other cases (including Southworth and Widmar) make clear that the government can’t discriminate based on viewpoint even in the distribution of government benefits, once a limited public forum is created. It may also be in some measure restricted in its imposition of content-based but viewpoint-neutral rules, but that’s not important here. I explained in another post why the non-discrimination rule isn’t viewpoint– or content-based.

3. What about Healy? Healy was also a case in which a group was excluded largely because of its viewpoint. (The group was excluded because the University President “found that the organization’s philosophy was antithetical to the school’s policies,” and “that approval should not be granted to any group that ‘openly repudiates’ the College’s dedication to academic freedom.”) The Court did say that, “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right. The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes. Petitioners’ associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper.” But as the Court has since made clear, student groups don’t have a general right to use campus facilities (such as rooms within university buildings) or bulletin boards. They at most have a right to not be discriminated against based on the viewpoint of their speech (and perhaps in some situations based on the content of their speech) once the university decides to open up such facilities to student groups generally.

4. Nor does Healy suggest that groups have a right to what one might call “associational-choice-neutral” access to property that the university has opened to student groups, much as groups have a right to viewpoint-neutral access to such property. In fact, footnote 11 of Healy expressly says that content-neutral nondiscrimination rules were not at issue in that case:

The standards for official recognition require applicants to provide a clear statement of purposes, criteria for membership, rules of procedure, and a list of officers. Applicants must limit membership to “matriculated students” and may not discriminate on the basis of race, religion or nationality. ... Petitioners have not challenged these standards and their validity is not here in question.

So whether the matter arises as to funding or room access at public universities, or funding or room access in other government-owned institutions, the result is the same: The First Amendment doesn’t stop the government from making such benefits available only to groups that don’t discriminate based on race, religion, sexual orientation, and the like.

Tags: Christian Legal Society v. Martinez

From USA Today: For feds, more get 6-figure salaries

The number of federal workers earning six-figure salaries has exploded during the recession, according to a USA TODAY analysis of federal salary data.

Federal employees making salaries of $100,000 or more jumped from 14% to 19% of civil servants during the recession’s first 18 months — and that’s before overtime pay and bonuses are counted.

Federal workers are enjoying an extraordinary boom time — in pay and hiring — during a recession that has cost 7.3 million jobs in the private sector.

The highest-paid federal employees are doing best of all on salary increases. Defense Department civilian employees earning $150,000 or more increased from 1,868 in December 2007 to 10,100 in June 2009, the most recent figure available.

When the recession started, the Transportation Department had only one person earning a salary of $170,000 or more. Eighteen months later, 1,690 employees had salaries above $170,000.

The trend to six-figure salaries is occurring throughout the federal government, in agencies big and small, high-tech and low-tech. The primary cause: substantial pay raises and new salary rules.

“There’s no way to justify this to the American people. It’s ridiculous,” says Rep. Jason Chaffetz, R-Utah, a first-term lawmaker who is on the House’s federal workforce subcommittee.

Jessica Klement, government affairs director for the Federal Managers Association, says the federal workforce is highly paid because the government employs skilled people such as scientists, physicians and lawyers. She says federal employees make 26% less than private workers for comparable jobs.

USA TODAY analyzed the Office of Personnel Management’s database that tracks salaries of more than 2 million federal workers. Excluded from OPM’s data: the White House, Congress, the Postal Service, intelligence agencies and uniformed military personnel.

The growth in six-figure salaries has pushed the average federal worker’s pay to $71,206, compared with $40,331 in the private sector.

H/T Jim Geraghty

President Obama’s Nobel Prize speech yesterday made reference to the moral authority, under the ethics of the just war, for armed humanitarian intervention in some situations.  It is a topic that has been debated and discussed as a matter of international law for, well, a long time, but which gained particular urgency following on Bosnia, Rwanda, and Kosovo in the 1990s.  It continues to be debated and argued as a matter of law, morality, and policy.  The Council on Foreign Relations has just issued a new report, Intervention to Stop Genocide and Mass Atrocities, authored by Columbia law professor and former Bush administration official Matthew Waxman, looking for ways to move the discussion forward.  It is a terrific report, coherently organized and thought-out as to substance, I strongly recommend it to anyone thinking through mass atrocities and “R2P.”

Professor Waxman’s report starts from the premise that the US favors robust practical measures to stop and prevent genocide and mass atrocities.  He then turns to the legal regimes in international law and asks what prevents robust responses from taking place:

A[n] important part of this debate concerns the international legal system governing the use of force in situations of actual or potential atrocities. In this Council Special Report, Matthew C. Waxman asks whether this legal regime is effective in preventing and stopping such crimes. The report notes that international legal practices constrain swift action and require extensive consultation, especially in the United Nations Security Council, before particular steps can be taken. Waxman, though, argues that the system has certain benefits: it can confer legitimacy and help actors coordinate both military and nonmilitary efforts to prevent or stop atrocities. He also contends that different arrangements of the kind some have proposed would be unlikely to prove more effective.

He therefore opposes wholesale reforms but recommends more modest steps the United States could take to improve the current legal regime. These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval.

I would add three comments of my own — my own views and not attributable in any way to Professor Waxman.  First, R2P gets harder and harder to pull off in a genuinely multipolar world; a multipolar world, as the ever-astute David Rieff has noted, is a competitive, not cooperative, one.  In the jockeying for position around many things ranging from commercial advantage to energy to markets to regional security to lots more besides, many more actors can find many more reasons, and many more reasons not obviously related to the atrocities at hand and many reasons not even of any obvious importance, for preventing R2P from taking place.

The intervention that did take place — Kosovo — depended, not upon the United Nations or the collective security of international organizations, but upon the rough and ready security hegemony of the United States.  This was one of the crucial tenets of President Obama’s Nobel speech — an acknowledgment of the US as the provider since WWII of the basics of global security as a global public good.  The interventions that did not take place, Rwanda and Bosnia (at least not until late in the day), did not because they depended upon the collective security mechanisms of the UN.  The US acts (as President Obama recognized), not merely as the biggest player (still) in the international system of law and organizations, but as a parallel player, acting from outside the structure of liberal internationalism, in effect offering an extra-UN-system guarantee to the system.  That’s one reason why the UN has not simply imploded as a system of collective security; words are there, but security is underwritten by an actor outside of the system and its ineradicable collective action failures.

Second, despite the admirable activities of legal academics and policy experts to try to put flesh on the bones of R2P, it seems to me that the concept has been in retreat.  At the broadest level, this is on account of the rise of multipolarity — or at least its perception — and the resurgence of the “electoral authoritarians,” particularly Putin’s Russia, which saw Kosovo as something of a watershed, and all in the wrong direction.  After all, the Kosovo war was not put to the Security Council by the NATO coalition, for the reason that Russia, and perhaps China, would have vetoed it.  And, on the other hand, R2P has already been invoked by Russia as a ground for its adventures in Georgia; in bad faith, of course, but even bad faith invocations can undermine the concept in real life.

This palpable dislike of R2P found expression in the language of the 2005 Final Outcome Document of the UN General Assembly reform conference in 2005 — under the ever-malign influence of the General Assembly, the final language mentioned R2P, but cabined it under the authorization of the Security Council.  Under the terms of the 2005 document, the Kosovo war would have had to go to the Security Council, with predictable results.  Note, too, that this runs directly against President Obama’s assertion yesterday that there would be times when the US, sometimes alone and sometimes with friends, would act — outside of the UN system.

Third, as a general observation, many of these exercises in idealism depend, not upon international law and institutions, no matter what the rhetoric, but upon the United States, and the “extra-system” provision of certain global public goods that it proffers.  The concept of enlightened self-interest, as President Obama also explicitly noted in his Nobel address, does not lead the United States to do everything that humanitarians (or even it) might wish it would do, but leads it to act motivated at least by certain values and ideals, and put blood and treasure behind them, in ways that the virtuous-but-weak peoples of the world will surely miss should the United States embrace decline.  The grand irony?  What we are pleased to call the “universal” regime of human rights shelters, not in international law and institutions, but instead in a US security guarantee that is yet capacious enough not to mind if one insists on calling it ‘liberal internationalism’.

(That’s me talking, however, not Matthew Waxman.)

As part of my continuing efforts to explain — both to myself, and to others — why it is that copyright law as we know it is so grotesquely unsuited to the global network, I gave a talk recently at a joint meeting of the NYC chapters of the Copyright Society of the US and the Internet Society (and interesting combination for this purpose) on the subject, and the folks at ISOC have posted the video of the talk here. FYI, in case you’re interested (and with all the usual self-abnegating apologies for shameless self-promotion — hey, buy my book!)

[PS — if you want to see the Larry Lessig video that I displayed at the talk — the video within the video, as it were — it’s available here]

Diane Francis, the Editor at Large of the Financial Post (Canada), argues for taking away basic human reproductive rights:

The “inconvenient truth” overhanging the UN’s Copenhagen conference is not that the climate is warming or cooling, but that humans are overpopulating the world.

A planetary law, such as China’s one-child policy, is the only way to reverse the disastrous global birthrate currently, which is one million births every four days.

The world’s other species, vegetation, resources, oceans, arable land, water supplies and atmosphere are being destroyed and pushed out of existence as a result of humanity’s soaring reproduction rate.

Ironically, China, despite its dirty coal plants, is the world’s leader in terms of fashioning policy to combat environmental degradation, thanks to its one-child-only edict.

The intelligence behind this is the following:

–If only one child per female was born as of now, the world’s population would drop from its current 6.5 billion to 5.5 billion by 2050, according to a study done for scientific academy Vienna Institute of Demography.

–By 2075, there would be 3.43 billion humans on the planet. This would have immediate positive effects on the world’s forests, other species, the oceans, atmospheric quality and living standards.

–Doing nothing, by contrast, will result in an unsustainable population of nine billion by 2050.

Humans are the only rational animals but have yet to prove it. Medical and other scientific advances have benefited by delivering lower infant mortality rates as well as longevity. Both are welcome, but humankind has not yet recalibrated its behavior to account for the fact that the world can only accommodate so many people, especially if billions get indoor plumbing and cars.

The fix is simple. It’s dramatic. And yet the world’s leaders don’t even have this on their agenda in Copenhagen. 

A welfare state is in one sense a big Ponzi scheme. Without increasing numbers of people entering the scheme, there is no money to pay the people receiving the money. As Mark Steyn has repeatedly pointed out, you can’t run a welfare state without a growing population. 

Francis, a visiting professor at Ryerson University, also blogs at the Huffington Post. BTW, Jim Geraghty reports that she has two children, which is one more than I have (tip to Jonah Goldberg).

In response to my posts on the unconstitutionality of a personal health care mandate, Jack Balkin passes along the link to his debate on this issue with David Rivkin and Lee Casey in PENNumbra. I strongly encourage readers interested in this debate to read their detailed exchange. There, Jack presents the most powerful defense of a health care mandate I have seen and Rivkin and Casey make some telling points in return. Perhaps their observation must predictive of the outcome of any constitutional challenge is this:

This version of the Commerce Clause would enable Congress to mandate any kind of spending by private individuals — e.g., buying new cars every few years — subject only to the limitations contained in the Bill of Rights. If Professor Balkin believes otherwise, we would appreciate having him describe what kind of purchase and other mandates directing private people how to behave would be beyond the reach of this Commerce Clause on steroids.

As the Court stated in the 1995 case of US v. Lopez:

To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.... This we are unwilling to do.

As we say in our paper:

Nothing about the Court’s current composition suggests it would now be any more receptive to an argument that eliminates all limits on the commerce power.

I think my friend Jack’s reading of Raich is wrong. Just as most constitutional law professors who before 1995 engaged in the wishful thinking that the Commerce Clause had no limit, most law professors today read Raich as saying Congress may reach any activity so long as it is part of a broader regulatory scheme. I believe the Court said no such thing, and neither did Justice Scalia in his concurrence. And make no mistake. Raich is the best case defenders have to justify this unprecedented mandate of a private person to enter into a contract with a private company simply because the person is alive.

First of all, the majority in Raich found the activity in question — growing a fungible good like marijuana — to be “economic” and therefore within Lopez and Morrison. This may have been wrong–the Court’s only authority was a 40-year-old dictionary definition of “economic”–but this, rather then qualify or reject Lopez and Morrison, is how it justified its decision. True, in his concurring opinion, Justice Scalia focused on the power under the Necessary and Proper Clause to reach noneconomic behavior when doing so is “essential to a broader regulatory scheme that would be undercut” unless such activity is reached. But his concurrence has been misinterpreted in ways that I think he would welcome the opportunity to correct. 

I truly believe that Justice Scalia’s invocation of the “essential to a broader regulatory scheme” rationale for reaching noneconomic activity (which originated in Lopez) was an artifact of the fact that Raich was an as-applied Commerce Clause challenge. In Raich we did not challenge the constitutionality of Congress’s power to reach the class of activities defined by the Controlled Substances Act: the production, distribution and possession of “Schedule I” controlled substances. Instead, we argued that the CSA was unconstitutional as applied to a subset of this class of activity: the wholly intrastate cultivation and possession of marijuana for medical purposes as authorized by state law. What the Court refused to do in Raich was carve out a subset of the statutorily defined class; and it was this refusal that Justice Scalia was justifying in his concurrence. He advocated deferrence to Congress’s judgment that it was essential to a larger regulation of interstate commerce that this subclass be included. That is all. 

(In contrast, while we conceded the “larger regulatory scheme” principle at oral argument, we then contended that there must be some judicial scrutiny of whether it was “essential” that a subclass be included. So it was Justice Scalia’s deferential approach, not the principle he invoked, which was the basis of our disagreement.)

Lopez and Morrison were facial challenges to the authority of Congress to reach the statutorily defined “class of activities” as a whole: possessing guns within 1000 feet of schools and engaging in gender-motivated violence. So will any challenge to a personal health care mandate. In which case the “class of activities” will turn out to be the inactivity of abstaining from entering into a contract, or engaging in economic activities. Thus identified, it is reasonable to predict that there are five Justices who will find this class of (in)activity to be outside the scope of the Commerce Clause. I even suspect that Justice Scalia will be eager to show that his concurrence in Raich in no way undercut Lopez and Morrison, and in no way undermined the enumerated powers scheme. 

Of course, “inactivity” can always be transmuted to “activity” in all the ways Jack describes. The action/inaction distinction — like any distinction — is contestable. But to keep matters real, IF this bill remains as unpopular after passage as it is now, 5 Justices will have zero trouble defining the relevant “class of activity” as INactivity and NONeconomic. They will see this as a singular opportunity to reaffirm Lopez and Morrison and to deny any suggestion that Raich overruled them, especially given that striking down this unprecedented mandate would undercut no other existing legislation (as was also true of Lopez and Morrison).

As for the tax issues, these become really technical really fast. I do not believe that the Senate bill imposes a tax –and the President has conveniently denied it is a tax. Calling a “fine” a tax does not make it so. But, if it is a tax, it is not a tax on any activity or on income. It is a direct or capitation tax on “the person” and must, therefore, be uniform throughout the states according to the census — which this proposed tax is not.

Finally, Congress could impose a tax on income to pay for national health care as it does with Medicare. But there are political reasons why it does not want to do this, so it would prefer to command A to enter into a contract with B at inflated prices, thereby subsidizing B and keeping the transaction off the books. The Court is not always receptive to Congress using unconstitutional means to avoid the political accountability of using its powers to accomplish its objectives. Especially when, if this is allowed, there is absolutely nothing Congress cannot command or forbid if it so chooses — provided only that it does not violate an enumerated right.

The IHS is a leading organization for spreading libertarian ideas in the academy; I’ve participated in a few of their events, and have been very impressed, and many of my friends have participated in many more and have likewise been impressed. They also offer scholarships for students, which is the topic of this post:

Deadline: December 31 

Scholarships up to $12,000 for undergraduate or graduate study in the United States or abroad.

Humane Studies Fellowships are awarded by the Institute for Humane Studies (IHS) to students interested in exploring the principles, practices, and institutions necessary for a free society through their academic work. IHS began the program in 1983 as the Claude R. Lambe Fellowships and in 2009 awarded more than 165 fellowships ranging from $2,000 to $12,000.

IHS considers applications from those who will be full-time graduate students, including law and journalism students, or undergraduate juniors or seniors during the 2010-11 academic year and who have a clearly demonstrated research interest in the intellectual and institutional foundations of a free society.

Previous award winners have come from a range of fields such as economics, philosophy, law, political science, anthropology and literature. Their research focused on a variety of topics: 

• market-based approaches to environmental policy
• the legal development of privacy and property rights in 18th-century England
• the role of patient autonomy in bioethics
• impediments to economic growth in developing countries
• the relationship between U.S. presidential politics, fiscal policies, and economic performance

Select winners are invited to present and discuss their research at the annual Humane Studies Research Colloquium and to attend other colloquia throughout the year. Fellows also join a network of more than 10,000 IHS academics committed to the ideas of liberty and intellectual freedom.

The ACLU sued the Tarek ibn Ziyad Academy — a state-funded charter school — alleging that it was operated as a Muslim school and thus violated the Establishment Clause. The Academy counterclaimed, alleging defamation and tortious interference with current and prospective contractual relations.

Wednesday, the federal district court rejected the libel claim, reasoning that the charter school was a governmental entity, and governmental entities can’t sue for libel:

As a threshold matter, Plaintiff contends that as a public entity, TIZA cannot sue for defamation or related claims under New York Times Co. v. Sullivan, 376 U.S. 254, 291 (1964), and its progeny. A governmental body may not sue for defamation. See New York Times, 376 U.S. at 292. The United States Supreme Court in New York Times explained that “[f]or good reason, no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.” Id. at 292 (quoting City of Chicago v. Tribune Co., 139 N.E. 86, 88 (Ill. 1923)). Accord Edgartown Police Patrolmen’s Ass’n v. Johnson, 522 F. Supp. 1149 (D. Mass. 1981) (“It is well-established that a governmental body may not sue for libel.”) (citing New York Times); City of Chicago v. Tribune Co., 139 N.E. at 91 (affirming judgment for defendant newspaper publisher on the ground that a city cannot maintain an action for libel); City of Philadelphia v. Washington Post Co., 482 F. Supp. 897, 898–99 (E.D. Pa. 1979) (“The City cannot maintain an action for libel on its own behalf. A governmental entity is incapable of being libeled.”). “Public debate must not be inhibited by the threat that one who speaks out on social or political issues may be sued by the very governmental authority which he criticizes.” Edgartown Police Patrolmen’s Ass’n, 522 F. Supp. at 1152 (citing New York Times, 376 U.S. at 292).

TIZA does not appear to dispute that public schools cannot sue for defamation, but contends that TIZA, as a non-profit corporation in the business of running a public charter school, is a separate legal entity and not part of the government. While it is true that TIZA is set up as a non-profit corporation, it is apparent that TIZA incorporated itself as such in order to be approved as a public charter school under the MCSL [Minnesota Chater School Law]. Under the MCSL, charter schools, including TIZA, provide free, public education to Minnesota students. The MCSL explicitly states that “[a] charter school is a public school and is part of the state’s system of public education.” Minn. Stat. § 124D.10, subd. 7. Under the MCSL, TIZA operates by law as a public school. Indeed, TIZA admits as much, explaining that “TIZA is a Minnesota non-profit corporation in the business of running a public charter school, not a private school.” Here, TIZA is suing Plaintiff over statements that it perceives to be critical of its functions as a public school. The Court concludes that the body of law establishing that government bodies may not sue for libel applies to TIZA as a public charter school under the MCSL. Accordingly, TIZA’s defamation claim fails as a matter of law.

The court goes on to also conclude that, even if the MCSL were able to sue for libel, it would be a public figure and would therefore have to show that ACLU acted with “actual malice” (knowledge that the statements were false or reckless disregard of the high probability that they were false), and the Academy failed to plead facts that would show actual malice. The court also noted “that it is doubtful, based on the record currently before the Court, that TIZA would be able to establish causation, defamation per se, or that the allegedly defamatory statements were anything more than non-actionable rhetorical statements.” Finally, the court also threw out the tortious interference claims, which were based on the defamation claims. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

One of the more controversial statements in the CRU emails is Phil Jones’s using a “trick” to “hide the decline.” 

Some new discussions of the trick:

1. While downloading some data from GISS, I came across a clearly innocuous use of the word trick, perhaps written by James Hansen:

The trick was to find the anomalies first and then compute the absolute values from the anomalies: Whereas the absolute monthly and seasonal temperatures may have a definite seasonal cycle, the monthly and seasonal anomalies do not; hence whereas a seasonal mean may be totally distorted if we leave out the warmest or coldest month, seasonal anomalies are less impacted by dropping any monthly anomaly.

We use the same device when we combine the station data to get regional or global means . . . 

GISS Website Curator: Robert B. Schmunk
Responsible NASA Official: James E. Hansen
Page updated: 2009-04-27

This usage that I discovered on the GISS site is precisely the use suggested by Mann:

Mann said Jones was using the word “trick” in the sense of “here’s the trick for solving that problem,” not to indicate anything inappropriate. 

So sometimes climate researchers do indeed use “trick” to mean a clever solution to a problem.

2. Watts Up With That has an analysis of the use of the word “trick” in the rest of the CRU email archives.

3. At Climate Audit, Steve McIntyre has a long, but excellent background post on the context of the trick designed to hide the decline (tip to Watts Up). As McIntyre shows, in this instance Jones’s trick was not innocuous. 

Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama’s Nobel Prize speech claim that “the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.” May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–“Thou shalt love they neighbor as thyself”–since Leviticus is Jewish scripture, and Rabbi Hillel’s kind and wise sayings are not.) May then writes: “I don’t think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah’s eyes and not in the eyes of Allah’s servants. Not unless and until they convert.”

One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion’s scripture or other teachings. However, if the question is: “Does every major world religion contain the Golden Rule?” the answer is “yes.” To wit:

Islam:  “Not one of you (truly) believes until he wishes for his brother what he wishes for himself.” An-Nawawī’s Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).

Confucianism: Mencius said, “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence.”  Mencius, Mencius, transl. D.C. Lau (N.Y.: Penguin, 1970), book 7, part A, item 4, p. 182. (And yes, I know that there’s a lot of discussion about whether Confucianism and Taoism are actually religions, or just philosophies.)

Taoism: Lao Tzu said, “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss.”  Lao Tzu, T’ai Shang Kan Ying P’ien (Treatise of the Exalted One on Response and Retribution), transl. Teitaro Suzuki & Paul Carus (La Salle, Illinois: The Open Court Pub. Co., 1906).

Hinduism: “This is the sum of duty: Do naught unto others which would cause you pain if done to you.”  Mahabharata, 5:1517.

Buddhism: Siddhartha said, “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?”  Christopher W. Gowans, Philosophy of the Buddha (London: Routledge, 2003), ch. 15.

Baha’i: : “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it.” Baha’u’lah, Gleanings, from the Writings of Baha’u’lah (U.S.: 1990), ch. 56, p. 128.

Jainism: “One should treat all creatures in the world as one would like to be treated.” Mahāvīra, Sutrakritanga 1.11.33.

Sikhism: “I am a stranger to no one; and no one is a stranger to me. Indeed, I am a friend to all.” Guru Granth Sahib, pg. 1299.

Are the above sayings all “central” to their respective religions? Well in Islam, the Hadith (stories and sayings of Muhammad, based on tradition) are much less central than the Koran. In Confucianism, Mencius is perhaps the greatest of Confucian writers, but he’s not Confucius. One could raise centrality questions about most of the quotes (other than the Sermon on the Mount, which is indisputably central). Does the Hadith’s reference to “his brother” mean: 1. A sibling? 2. A co-religionist? 3. Everyone? At the least, the Hadith’s text (like the text of references to a “brother” in other religions) is open enough so that kind-hearted people can legitimately interpret it as “everyone.”

While President Obama’s Nobel speech is Kennedyesque in the very best way, there is an important difference between the challenge that JFK faced and the one that BHO faces. Communism, like Nazism, was Evil incarnate. President Roosevelt was right to say so about Nazism, and President Reagan was right to say the same about Communism. The appropriate long-term goal for American policy was to eliminate these evils from the face of the earth. Such a goal is neither appropriate nor legitimate with regard to Islam. Accordingly, it was proper for the President Obama in Oslo to continue the Bush policy of appealing the best part of Islam, and of denying the claims of al Qaeda and similar evil-doers that they represent true Islam.

Although I didn’t vote for Barack Obama, he is my President, and I wish him every success in carrying out the positive vision he articulated today; if he does, he will have more than fully earned the Nobel Peace Prize.

One more item about the Christian Legal Society v. Martinez case: Some people argue that applying nondiscrimination conditions to student religious groups (alongside other groups) as a condition of funding violates the underlying purpose of the benefit program. Universities say they fund and provide space for student groups to “facilitat[e] the free and open exchange of ideas by, and among, its students” (I quote here Board of Regents v. Southworth). Given that the effect of the nondiscrimination condition is to limit religious groups’ ability to freely promote the ideas (by raising the risk that the groups won’t be able to limit their officers or voting members to those who share the group’s core ideas), isn’t the condition inconsistent with the purpose of the program (and the argument goes, therefore unconstitutional)?

The answer, I think, is that when the government is subsidizing behavior, it is entitled to try to serve multiple interests. For instance, why does the government provide a tax exemption to deductions for nonprofits? Because it thinks that this enriches civil society and (as to nonprofits that speak) public knowledge and public debate – including by broadening the spectrum of viewpoints advocates by private organizations. Yet the government is entitled to serve both that interest and the interest in not requiring taxpayers to subsidize electioneering and lobbying (or at least a substantial amount of lobbying), which is why the government may extend the tax exemption only to donations to groups that don’t electioneer or engage in substantial amounts of lobbying. 

Nor is there any need for a very strong, overriding reason for the exclusion, I think; the government is entitled to choose what it subsidizes and what it doesn’t. Likewise, the government can choose to partly subsidize many medical procedures (including ones that are necessary simply for comfort, rather than for preservation of life or prevention of serious injury), but choose to exclude abortions. There’s no need for a very strong, overriding reason for that exclusion, either, because the government can choose to try to serve two interests at once – helping people get medical procedures while making sure that taxpayer money (or taxpayer-purchased property) isn’t used for performing abortions.

Likewise, it seems to me that universities are entitled to provide a subsidy in order to broaden the spectrum of viewpoints advocated on campus by private organizations, while at the same time ensuring that the subsidy ends up benefiting students without regard to race, religion, sexual orientation, and the like (and not just in the aggregate but for each particular group). I think that’s an unwise decision, partly because the second interest does in some measure undermine the first. But it seems to me quite constitutional. 

And the answer to what government interest is served here is the same as that given by President Kennedy in supporting Title VI of the Civil Rights Act: That money gathered from taxpayers (or students) without regard to race and the like is to be distributed only to groups that admit all students without regard to race and the like. That interest is legitimate, and therefore constitutionally sufficient when it comes to choosing which groups get government funding, even if I think that elevating it over rival interests is unwise in this context. 

Tags: Christian Legal Society v. Martinez

David and others have argued that university policies that deny benefits to groups that discriminate based on religion are unconstitutionally based on the groups’ viewpoint, when applied to religious groups. Other groups, the argument goes, are allowed to exclude people who don’t share the group’s ideology: The environmentalist group may exclude anti-environmentalists, and the gun rights group may exclude people who support gun bans. But the Christian group can’t exclude non-Christians, and that’s discriminatory against groups that espouse Christian viewpoints.

But I don’t think that constitutes viewpoint discrimination, or even content discrimination. The no-religious-discrimination condition may have a disparate impact on religious groups – it may burden them much more than it burdens nonreligious groups – but disparate impact is not enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint.

As I argued in my law review article on the freedom of expressive association and government subsidies, the test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies. 

I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ beliefs, not on the regulated groups’ speech or beliefs. 

Now of course the university rule, while applicable to groups without regard to their content or viewpoints, does single out a certain kind of exercise of freedom of association rights, and deny it funding. But in the absence of discrimination based on a speaker’s viewpoint, the selective denial of funding to the exercise of certain constitutional rights is permissible (see my original post): The government may fund many medical procedures but not abortion, may give tax exemptions for donations that go to many kinds of speech but not electioneering, and so on. 

That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. It just can’t discriminate based on speakers’ viewpoint in awarding subsidies; and, as I argue above, the nondiscrimination rules (if evenhandedly applied) don’t discriminate based on speakers’ viewpoint.

Tags: Christian Legal Society v. Martinez

In the City Journal, Heather Mac Donald has an interesting article showing how California’s 1998 ban on bilingual education (a referendum initiative that passed despite the opposition of most of the political and education establishment) has improved English Language acquisition by immigrant Hispanic students. Unsurprisingly, young children learn new languages better by immersion. Mac Donald also claims that this result ran counter to the predictions of various experts in education and psychology:

Unless Hispanic children were taught in Spanish, the bilingual advocates moaned, they would be unable to learn English or to succeed in other academic subjects....

The 1960s Chicano rights movement (“Chicano” refers to Mexican-Americans) asserted that the American tradition of assimilation was destroying not just Mexican-American identity but also Mexican-American students’ capacity to learn. Teaching these students in English rather than in Spanish hurt their self-esteem and pride in their culture, Chicano activists alleged: hence the high drop-out rates, poor academic performance, and gang involvement that characterized so many Mexican-American students in the Southwest. Manuel Ramirez III, currently a psychology professor at the University of Texas at Austin, argued that bilingual education was necessary to ensure “the academic survival of Chicano children and the political and economic strength of the Chicano community...” 

Novel linguistic theories arose to buttress this political platform. Children could not learn a second language well unless they were already fully literate in their native tongue, the newly minted bilingual-ed proponents argued. To teach English to a five-year-old who spoke Spanish at home, you had to instruct him in Spanish for several more years, until he had mastered Spanish grammar and spelling. “Young children are not language sponges,” asserts McGill University psychology professor Fred Genesee, defying centuries of parental observation. 

Such claims are difficult to take seriously. Centuries of immigrant experience show that immersion enables young children to quickly pick up new languages, whether they are literate in their original language or not. When I arrived in the US at the age of six, I didn’t speak a word of English and I couldn’t read and write in Russian at all, never mind being “fully literate” in it. Nonetheless, as a result of immersion, I was fluent in English within a year and literate within two — long before I belatedly achieved literacy in Russian at the age of ten. Since we spoke Russian at home, my progress with English was almost entirely the result of immersion in school. 

It would be wrong to generalize from personal experience alone. But I have seen numerous other immigrant children with similar stories, both in the Russian community and elsewhere. For example, when I was in college, I was a volunteer tutor for Cambodian refugee school children. Most of the parents were poor, ill-educated, and had limited or no English proficiency. Nonetheless, their kids who had arrived in the US at elementary school ages all spoke fluent English because of immersion (public schools in the area probably lacked the personnel to teach these students in Cambodian, even if they had wanted to). Those who came to the US at high school ages had a much tougher time, but were still making progress. I can understand claims that bilingual education is needed for students who arrive in the US at high school age or later. But for elementary school students, immersion is by far the best way to go. Moreover, as Mac Donald points out, immersion is a standard, highly effective technique used by leading programs that teach students foreign languages (e.g. — Middlebury College’s Language Schools). Even adult students benefit from it, though admittedly not as much or as quickly as children.

I would add that in most immigrant communities, the usual concern about immersion is not that it prevents kids from learning English, but that it leads them to lose competency in their native languages. I’ve often heard immigrant parents lament this, though few want to put their kids in bilingual ed programs to prevent it (because they realize that failure to learn English quickly is likely to hurt their children’s future prospects). Loss of native language competency is a genuine problem; speaking a second language has great value in today’s globalized economy. But this issue should be addressed by means that don’t slow students’ progress in English. 

“This is a case about bats, wind turbines, and two federal polices, one favoring protection of endangered species and the other encouraging development of renewable energy resources.”  So begins a federal district court opinion halting expansion of a wind farm in West Virginia because of likely harm to endangered Indiana bats. The project must obtain an incidental take permit from the U.S. Fish & Wildlife Service if it is to proceed. Washington Post coverage here.

I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.

Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate decisions. 

By contrast, conservatives and libertarians have been slow to grasp this point and act on it. That isn’t just my opinion. It’s also the view of Steven Teles, author of the leading academic work on right of center public interest law, and also of prominent leaders of conservative and libertarian public interest organizations, such as Chip Mellor, President of the Institute for Justice and the leaders of CIR (interviewed in Teles’ book).

The Fed Soc Pro Bono Center is a thoughtful effort to address the problem. The premise is simple: interested lawyers sign up at the Center’s website, and give their contact information, areas of expertise (e.g. — property rights, First Amendment, religious liberties, criminal law), what kind of work they can do (trial, appellate, etc.), and how much time they have per month. The Center then matches them up with public interest firms and other organizations that are looking for lawyers to work on specific cases (these organizations can also sign up at the website, and provide information about their needs). I doubt that the Pro Bono Center can cure the greatest weakness of conservative/libertarian public interest law all by itself. But it’s a step in the right direction. IJ’s Human Action Network is an older, somewhat similar initiative (but one that doesn’t have an explicit case-matching system).

Most lawyers, especially those working at large firms, have at least some time to do pro bono work. Indeed, senior partners often encourage junior associates to so such work because it is a great way for younger lawyers to get useful experience. At many firms, partners are happy to have associates take on such work even if they don’t necessarily agree with its ideological orientation; after all, it’s still valuable experience that can benefit the firm when the associate uses what he or she has learned in later work for paying clients. Obviously, there are also career benefits to the lawyer himself. Getting useful litigation experience can help your career, and it’s often easier for a young lawyer to get major responsibility on a pro bono matter than in a case on behalf of a paying client.

Conservative and libertarian law students often ask me what they can do to promote the cause of free markets and limited government if they are unable or unwilling to go into public interest law or academia. Here’s my answer to that perennial question: They also serve who litigate unglamorous but essential follow-up cases. Few important legal precedents ever amount to much without them. 

CONFLICT OF INTEREST WATCH: I have done various pro bono work for the Institute for Justice myself, and serve on one of the Federalist Society’s practice group executive committees (an unpaid position).

John Stossel’s new show premieres tonight on Fox Business Channel at 8pm ET.

His topic is global warming. He has called the opening film shown to delegates at the Copenhagen conference “fear-mongering.” 

Here it is:

Duke Law Professor Joseph Blocher’s argument that NFL instant replay reviews should reconsider on-field calls de novo has resulted in an extensive debate. The Wall Street Journal law blog has a list of various links here. I endorsed Blocher’s argument in this post. There has also been a response by Josh Patashnik of the New Republic, which the WSJ survey didn’t include.

I still maintain, along with Blocher, that de novo review would increase the accuracy of calls at little or no cost to other important objectives. Some of the critics claim that instant replay calls aren’t likely to be any more accurate than those made on the field. This strikes me as extremely unlikely. An official in the instant replay booth can review the play from several different angles over the course of a minute. By contrast, an on-field call must often be made based on a split second glance. Even the best referees will sometimes have trouble figuring out exactly what happened. Moreover, as Blocher points out in his response to the critics, the NFL can certainly install more and better cameras in order to increase the accuracy of instant replay decisions still further. I am also unpersuaded by arguments that switching to de novo review would somehow undermine respect for NFL officials or lead to a breakdown of player discipline. Everyone already knows that NFL referees, like all sports officials, sometimes make mistakes; certainly the players and coaches know it. If anything, reducing the incidence of mistakes should increase respect for the system by both fans and players. And, as I noted in my original post, switching to de novo review won’t make games appreciably longer by increasing the number of instant replay challenges issued by coaches, since the rules give each coach only two challenges per game. 

Finally, I am not persuaded by Patashnik’s interesting argument that fans who believe their team has been victimized by an incorrect call will feel greater anguish if the call is an instant replay overturning of an on-field decision, applying de novo review:

Suppose a very close call goes against your team on the field, is challenged, and is upheld because the evidence is inconclusive, even if you think you have a slightly better claim. That’s annoying, but you can chalk it up to the ordinary difficulties of making close calls–something all sports fans are used to having to deal with–and at least you don’t feel like you got totally ripped off....

But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations–once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place. If, after such thorough examination, the call is reversed to go against you even though it’s not clear that’s the right outcome, you feel cheated in a new way: the exhaustive legal process has affirmatively placed its seal of approval on the arbitrariness. That’s something unique, and something most sports fans aren’t used to dealing with [it]...

In my view, concerns about the exact nature of the process are only a tiny fraction of the pain fans feel when they think a bad call has gone against them. In any event, I think any small increase in hurt feelings is likely to be outweighed by increases in the accuracy of calls — to say nothing of the joy of the fans whose team wins the instant replay challenge.

Tags: Instant Replay

For his very good speech accepting the Nobel Prize. Our President affirmed the principle of “just war,” and the righteousness of sometimes using unilateral force against tyranny, for “There will be times when nations–acting individually or in concert — will find the use of force not only necessary but morally justified.” In words reminiscent of John F. Kennedy or Ronald Reagan, President Obama continued:

I face the world as it is, and cannot stand idle in the face of threats to the American people.  For make no mistake:  Evil does exist in the world.  A non-violent movement could not have halted Hitler’s armies.  Negotiations cannot convince al Qaeda’s leaders to lay down their arms.  To say that force may sometimes be necessary is not a call to cynicism — it is a recognition of history; the imperfections of man and the limits of reason.

I raise this point, I begin with this point because in many countries there is a deep ambivalence about military action today, no matter what the cause.  And at times, this is joined by a reflexive suspicion of America, the world’s sole military superpower.

But the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world.  Whatever mistakes we have made, the plain fact is this:  The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.  The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.  We have borne this burden not because we seek to impose our will.  We have done so out of enlightened self-interest — because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others’ children and grandchildren can live in freedom and prosperity.

....

peace is not merely the absence of visible conflict.  Only a just peace based on the inherent rights and dignity of every individual can truly be lasting.It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War.  In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.

...

America has never fought a war against a democracy, and our closest friends are governments that protect the rights of their citizens.  No matter how callously defined, neither America’s interests — nor the world’s — are served by the denial of human aspirations.

So even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal.  We will bear witness to the quiet dignity of reformers like Aung Sang Suu Kyi; to the bravery of Zimbabweans who cast their ballots in the face of beatings; to the hundreds of thousands who have marched silently through the streets of Iran.  It is telling that the leaders of these governments fear the aspirations of their own people more than the power of any other nation.  And it is the responsibility of all free people and free nations to make clear that these movements — these movements of hope and history — they have us on their side.

peace is not merely the absence of visible conflict.  Only a just peace based on the inherent rights and dignity of every individual can truly be lasting.

It was this insight that drove drafters of the Universal Declaration of Human Rights after the Second World War.  In the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise.

It is true that Obama administration has not always fully lived by these noble words. But at least today, the words themselves are what matters. The President’s Nobel Prize Speech was no apology tour, no bow to a foreign monarch. Like his speech at West Point, the Nobel speech was a strong continuation of the bipartisan Kennedy-Reagan foreign policy based on military strength, support for human rights, readiness to negotiate, and realistic idealism. Today, our President made me especially proud to be an American.

p.s. Contrary to what one of Hugh Hewitt’s co-bloggers wrote, the final section of the speech is not “where Obama re-coins the golden rule as ‘the law of love.’” For those who don’t recognize the phrase, here’s the background, from my article on modern pacifism in the Charleston Law Review:

In 1932, [the eminent Protestant theologian Richard] Niebuhr wrote that he could think of no good methods, short of war, to end Japanese aggression in China. But since he was a pacifist, force was out of the question. So he advocated “the grace of doing nothing.” That is, just sitting on the sidelines while Japan raped, literally and figuratively, the Chinese people and hoping that God would solve things in the long run.

...

In a famous exchange of letters with his brother Richard, Reinhold Niebuhr [also an eminent Protestant theologian] argued that the deeper principle of the pacifist Gospels was “the law of love.” He argued that the law of love required Christians to protect the victims of fascist aggression. His views were elaborated in his book Moral Man and Immoral Society. After World War II, Reinhold Niebuhr became one of the founders of Americans for Democratic Action, an organization of liberal Democrats such as Arthur Schlesinger, Jr., Hubert Humphrey, and John Kenneth Galbraith—who supported President Truman’s leftist economic policies and staunch resistance to Stalin.

In short, Obama’s use of Niebuhr’s phrase “the law of love” fits perfectly with the central question that Obama addressed in his speech. Indeed, the “law of love” line comes along with a very Niebuhrian explication. The speech not only invoked President Kennedy twice, it was a speech that President Kennedy himself might have given (with, of course, some changes in details) if Kennedy had lived long enough to receive the Nobel Prize. Certainly there is a great deal in the Obama speech that matches what Ronald Reagan and George W. Bush believed and practiced. However, the amount of attention that the speech gave to development aid as a tool for peace is not a Reagan theme, although it was a theme for both Kennedy and Bush. The speech’s exaltation of multilateral institutions like the U.N. was also a Kennedy theme, not a Reagan or Bush theme. So while the speech is definitely within the bipartisan Kennedy-Reagan mainstream, the speech is closer to a Kennedy speech than anything else. Accordingly, it was especially appropriate for our young President–who like Kennedy inspires many people around the globe–to use the words of Niebuhr that so profoundly influenced the great anti-communist liberal Democrats of the Age of Kennedy.

p.p.s. Much more on Niebuhr here, in chapter 3 of my Brown Univ. thesis on Arthur Schlesinger.

Tags: Obama Nobel Prize

This is a month old, but still interesting:

A learning-disabled freshman suing Princeton University for refusing to allow her extra time to take exams was dealt a setback this week, as a federal judge refused a temporary restraining order on the eve of midterms. But plaintiff Diane Metcalf-Leggette still has a shot at getting a preliminary injunction in January, when final exams begin, if she can show probability of success in her suit under the Americans with Disabilities Act.

Metcalf-Leggette, of Centreville, Va., contended that a poor performance on the midterms would constitute irreparable harm, but U.S. District Judge Anne Thompson in Trenton, N.J., said the school could deal with that after the fact. Thompson set a hearing date for Jan. 11, a week before the start of finals, in Metcalf-Leggette v. Princeton University, 3:09-cv-05428.

Metcalf-Leggette, represented by Seth Lapidow and Jonathan Korn of Blank Rome in Princeton, asked for an accommodation in a series of meetings with university officials before suing the school on Monday, the day before midterm exams began.

The student has apparently been diagnosed with 1) Mixed-Receptive-Expressive Language Disorder, 2) Disorder of Written Expression, 3) Developmental Coordination Disorder, and 4) Attention Deficit Hyperactivity Disorder. The University did agree to give the student the right to take tests in a “reduced distraction testing environment,” to provide a 10-minute break every hour during tests, and to impose a one-exam-per-day limit. But the University refused to give her extra time on the exam. 

When I was in law school, there were a lot of rumors about the top performers in the class having special arrangements to take exams with extra time or special rules. I don’t know if the rumors were true, but they did make a lot of students skeptical of these sorts of medical claims — whether rightly or wrongly. 

Hat tip: Blackbook Legal.

Over at Faculty Lounge, Eric Muller has a post on Justice Sotomayor’s debut opinion in Mohawk Industries, Inc. v. Carpenter, noting Justice Thomas’s concurrence in part and in the judgment, and stating that “The Rehnquist Court tradition was to give a new Justice a unanimous opinion for his or her first assignment.”  And he notes a Washington Post article covering Justice Alito’s first opinion stating: “Following Supreme Court tradition for new justices, Chief Justice John G. Roberts Jr. assigned Alito a unanimous opinion as his first.”

I’ve never spoken to any of the Justices about whether there is such a norm.  It appears to me that the debut opinions for six of the current Members of the Court were unanimous (as are many of the Court’s opinions, just under 33% last Term), but the Court’s practice has not been uniform, even during the time of the Rehnquist Court.  As noted by Adam Steinman at Concurring Opinions, Justice O’Connor wrote a concurrence to, and Justice Scalia wrote a dissent from, Justice Breyer’s first opinion.  See Allied-Bruce Terminix v. Dobson, 513 U.S. 265 (1995). In addition to that, Justice Thomas, joined by Justices O’Connor and Kennedy, dissented from Justice Ginsburg’s first opinion.  See John Hancock Mut. Life Ins. Co. v. Harris Trust, 510 U.S. 86 (1993).

If there were any such tradition on the Burger Court, there were definitely exceptions.  Justice Marshall (joined by Justices Douglas and Brennan) dissented from then-Justice Rehnquist’s first opinion, see Schneble v. Florida, 405 U.S. 427 (1972), and Justices Douglas and Marshall (joined by Brennan) dissented from Justice Blackmun’s first opinion, see Wyman v. James, 400 U.S. 309 (1971).  Both Justice Marshall and Justice Blackmun (joined by Justice White) wrote dissents to what I believe is Justice Powell’s first opinion, see Commissioner v. First Security Bank, 405 U.S. 394 (1972).

I’ll be testifying this afternoon before the House Subcommittee on Courts and Competition Policy hearing on “Examining the State of Judicial Recusals After Caperton v. A.T. Massey Coal Co.,” and I thought I’d post my written statement here.

It’s not terribly original, I’m sure, because it’s aimed just to give some broad thoughts on why judicial recusal is a difficult question, and why general standards such as “recuse when participating would create the appearance of potential bias,” or “recuse when your impartiality might reasonably be questioned,” are not very helpful. (Such standards might be useful in creating more precise rules, if one considers worry about possible bias or appearance of possible bias alongside other policies. But by themselves, the standards aren’t likely to do a good job.)

Dear Members of the Committee:

I was asked to testify about judicial recusal law following Caperton v. A.T. Massey Coal Co. I was one of the lawyers in that case, but I am not testifying here in that capacity; I’m speaking as a legal academic, representing only my own views. Moreover, since the Supreme Court decision, the Caperton litigation has been proceeding in state court and not federal court, and is governed by the Supreme Court’s constitutional rule, not a federal statute. Nothing I say here would therefore bear on that litigation.

On then to recusal law and federal judges. All agree that judicial impartiality is extremely important. At the same time, judges, like all human beings, have their own histories which have led them to their own attitudes and preconceptions, including towards litigants in their courtrooms.

A judge might have voted for or against a politician who ends up as a litigant before the judge. A politician might have publicly voted for or against the judge. A judge’s family member might have been murdered, which might affect a judge’s attitude towards people accused of murder, or of a particular kind of murder. Cf. Strickler v. Pruett, 1998 WL 340420 (4th Cir. 1998) (Luttig, J.) (responding to a motion for recusal in such a case). A constitutional case may affect the rights of the judge alongside the rights of millions of others, for instance if a female judge is ruling in a case involving the Equal Protection Clause and sex classification — or if a male judge is ruling in the same case. A constitutional case may affect the legal rights or financial standing of a group, such as a religious denomination, that the judge has voluntarily joined.

Moreover, judges usually become judges because they have had a successful career as lawyers, and because they have made political connections as a result of that career. Before ascending the bench, they might have gotten involved in political campaigns, perhaps in campaigns to elect the Senator who later urges the judge’s appointment, or the President who ultimately appoints the judge.

Or they might have gotten involved in state politics, perhaps helping elect a state governor who then appoints them to state judgeships, which becomes stepping-stones to federal judgeships. In the process, they would have gotten involved with the state party apparatus, would have been endorsed or opposed by state newspapers and state politicians, would have made friends in the state or federal Administration, and so on. Just to give two examples with which I’m most familiar, both involving highly respected jurists, my former boss Justice Sandra Day O’Connor was an Arizona Senate majority leader before being appointed to state judgeships and then eventually to the U.S. Supreme Court, and my former boss Judge Alex Kozinski (now the Chief Judge of the Ninth Circuit) was involved in President Reagan’s election campaign, and was then a political appointee in the administration before being appointed to the Court of Federal Claims and then to the Court of Appeals.

As a result of their careers as lawyers, and as judges, judges also make many friends and close acquaintances among lawyers — their classmates, coworkers, political allies, law clerks, and the like. In many smaller towns, where the number of lawyers is likewise small, judges may have social relationships with almost all the leading local lawyers.

Continue reading ‘Some Broad Thoughts on Judicial Recusal’ »

One of the minor brouhahas at Copenhagen has been over one of the many pieces of public art put up for the conference, Survival of the Fattest, sculpted by artist Jens Galschiot (2004), sponsored by sevenmeters.net.

(I am putting up an image from a blog I frequently read, the “I am a middle-aged gay libertarian Conservative, living in dignified isolation in rural Eastern Ontario, Canada” Diogenes Borealis blog.  It has a longer post on various pieces of art at the Copenhagen conference, titled “Hideous Public Art, Copenhagen Edition.” Eric has a good commentary on the problems of political art, activist art, looking not just at this piece but several others at Copenhagen as well.  Read the whole thing, as Glenn R. might say.  Reactions to art, and political art, differ, so if you want a different take than Eric’s, check out this post with lots of photos on the sculpture, as well as how it was vandalized by someone pushing it over into the water, and then set back up again with a crane.)

Rich world sits atop starving African man, sculpture at Copenhagen

The sculpture is accompanied by text, reading in part:

I’m sitting on the back of a man.
He is sinking under the burden.
I would do anything to help him.
Except stepping down from his back.

The website goes on to explain (in part):

The sculpture ’Survival of the Fattest’ is a symbol of the rich worlds (i.e. the fat woman, ‘Justitia’) self-complacent ‘righteousness’. With a pair of scales in her hand she sits on the back of starved African man (i.e. the third world), while pretending to do what is best for him.

The sculpture dates back to 2004, when it was exhibited in London.  On that occasion, it apparently was to symbolize the evils of globalization and free trade; it has morphed into a new message about climate change with apparently little need to change anything except the captions.  One wonders in what cause it will be re-deployed, with a quick change of the captions and text in a few years, in some other European city.  The rest of the statement accompanying the photo says that the rich world is responsible for what climate change will do, it says, to Africa.  (The sculpture itself?  In my view, while puerile as agit-prop, if completely stripped of the fashionable, and fashionably shifting, political references, it is an interesting piece as sculpture of the body.  If it were simply placed in a sculpture garden somewhere, without the pretentiousness of the politics, I would rather like it, particularly as a late derivative work in a declining tradition.) Continue reading ‘Survival of the Fattest and the Global Superfluous Poor in the Negotiations in Copenhagen’ »

From the Birmingham news reports:

Court officials were skeptical at first when ... a potential juror submitted a name change form with “Jesus Christ” on it. But the 59-year-old Birmingham woman, who previously went by Dorothy Lola Killingworth, assured the presiding judge that was her name [and presented a driver’s license ....

Christ ... was excused because she was disruptive, court officials said. Instead of answering questions, she was asking them, a court employee in Jones’s office said....

The story doesn’t indicate which questions Ms. Christ was asking. Thanks to Language Log commenter Alex for the pointer.

Mark Liberman (Language Log) asks the Jesus question — why is it Jesus a common name in Spanish-language cultures, but not other European-language cultures, including Catholic ones? — plus other related ones, such as

[Why have] some of the gods of European paganism ... survived as reasonably common modern names (especially Diana and Brigit, but also e.g. Apollo, Minerva, Thor) while others apparently haven’t (Baldur, Hermes, Hera, Mars, Odin, Poseidon, Zeus, etc.)[?]

The post offers no answers, but there’s a long and interesting comment thread.

So reports BBC News; this is the prosecution I blogged about in September, when it was filed. A brief excerpt from the BBC story:

[Ericka Tazi] claimed the couple became enraged when she wore a hijab on her last day and accused Mr Vogelenzang, 53, of asking her if she was a murderer and a terrorist.

She also told the court Mr Vogelenzang called the Prophet Muhammad a murderer and a warlord and likened him to Saddam Hussein and Hitler.

But the couple denied her version of events and claimed Mrs Tazi told them Jesus was a minor prophet and that the Bible was untrue....

The two-day trial ended when Judge Clancy ruled that the evidence against the hoteliers was “inconsistent” and dismissed the case....

Explaining his reasons for dismissal, Judge Clancy said Mrs Tazi’s claim that she was verbally attacked for up to an hour had not been backed up by the other witnesses....

Go here if you want to read the rest. Thanks to Religion Clause for the pointer.

One major problem with most invocations of the precautionary principle is that people tend to apply it to whatever danger they want to prevent, but largely ignore it in considering the potential dangers created by the policies they advocate. For example, Dick Cheney applied a version of the principle to the threat of terrorism, arguing that even a small chance of a catastrophic terrorist attack justified taking sweeping measures to eliminate it. At the same time, he tended to ignore the potential dangers of the anti-terrorist measures themselves. Similarly, environmentalists apply the precautionary principle to global warming, but not to the risks created by policies intended to alleviate global warming. 

If we have to take seriously the dangers of a global warming catastrophe, we should give equally serious consideration to the risks on the other side. For example, it’s possible that cutting carbon dioxide emissions by 80%, as some environmentalists advocate, would devastate the global economy, impoverishing millions and causing widespread suffering and death. Moreover, enforcing a worldwide cap and trade regime strong enough to compel obedience by China, India, Russia, and other potentially recalcitrant states might require a global authority with massive powers; even if these states formally agree to a cap and trade system, they might not enforce it aggressively against their own industries, unless compelled. The vast powers necessary to impose compliance could easily be abused in a variety of ways. In the most extreme scenario, the enforcement authority could eventually become an oppressive or even totalitarian world government from which there is no hope of escape. These two scenarios are admittedly unlikely (though the first is improbable largely because an 80% emissions cut is likely to be politically infeasible for the foreseeable future), but they can’t be completely ruled out. If, as Thomas Friedman says, the precautionary principle requires us to “buy insurance” against “a[ny] problem that has even a 1 percent probability of occurring and is ‘irreversible’ and potentially ‘catastrophic,’” these extreme scenarios have to be considered and strong precautions taken to forestall them before any large-scale anti-global warming initiative can be adopted. 

Less extreme, but still major catastrophes, are also possible — and far more likely than the worst-case scenarios noted above. For example, as co-blogger Jonathan Adler explains, a cap and trade program could create a bonanaza for interest group rent-seekers who will use it to exploit the general public, while simultaneously falling far short of achieving the level of emission reductions that would be necessary to have a serious impact on global warming. Such large-scale inefficiency might well reduce economic growth. And even small (but persistent) reductions in annual world economic growth would consign millions of people to poverty or an early death, because of the enormous impact of compound growth over time. For example, if India had abandoned its flawed economic policies just a few years earlier than it did in the 1980s and 90s, millions of children who died young might have survived to adulthood. Similar devastating cumulative results could occur if anti-global warming measures slow down Indian or other Third World growth rates today. 

Perhaps these dangers could be avoided or minimized if we had a perfectly functioning political system or something close to it; then we could count on policymakers to use their new powers to promote only those emissions-cutting policies that create benefits that outweigh their costs. In reality, government decision-making suffers from systematic flaws caused by widespread voter ignorance, interest group power, and information problems among policymakers. These dangers are exacerbated if the policy in question is complex (and therefore difficult for rationally ignorant voters to monitor), and if decisions are made in a crisis atmosphere. Global warming policy is, of course, both highly complicated and conducted amidst dire warnings that we will have a major crisis on our hands if we don’t act quickly.

None of this proves that global warming isn’t a real danger (even in the wake of Climategate, I think it probably is), or that we shouldn’t take any steps to reduce it. Like Jonathan Adler and James Hansen, I am sympathetic to the idea of using a revenue-neutral carbon tax to counter warming, though I fear that such a plan might not be politically feasible, and also qualify my support by my admitted ignorance of much of the relevant science. These considerations do, however, undercut simplistic arguments claiming that the precautionary principle unequivocally justifies taking immediate drastic measures to prevent global warming.

When there are major potential risks on both sides, the precautionary principle leads to paralysis. Whatever we do (including doing nothing), there is at least a small chance of catastrophe; thus, the principle would lead us to reject all the available options, which isn’t exactly helpful. For that reason, I agree with Cass Sunstein’s view that it is ultimately a poor guide to policy. But those who do believe in it have to be consistent in considering its implications for the possible dangers created by their preferred policies, as well as for the risks those policies are supposed to mitigate. 

Meanwhile, those of us who reject the precautionary principle should still take to heart the lesson that we must give serious consideration to the possible dangers policies intended to forestall potential “catastrophic” risks. This is especially the case with policies that would create massive new concentrations of government power. The last century showed all too clearly that concentrated state power has been a major cause of many of our greatest catastrophes.

Tags: Precautionary Principle

I haven’t had the chance to read Monday’s oral argument transcript in Free Enterprise Fund v. Public Company Accounting Oversight Board, so I don’t have much new to say about the case.  Fortunately, there are lots of other legal bloggers and academics who are more focused on the case, and they’ve been writing quite a bit.  The Conglomerate features a post by Bob Thompson and two by Donna Nagy (one, two).  Rick Pildes has a pair on Balkinization (one, two), and Hans Bader posts on OpenMarket.  There are still more links at Professor Bainbridge and Point of Law.

Possibly influenced by the recent discovery of real-life Hobbits, Peter Jackson has revealed some details of his upcomingHobbit movie, including the return of Ian McKellen as Gandalf; I think McKellen was quite good in that role in the Lord of the Rings movies. Perhaps there will be a part for co-conspirator Randy Barnett, who has previous experience appearing in sci fi/fantasy roles.

Tags: Tolkien

Senator Hatch, Eugene Volokh and me.

My co-blogger Randy Barnett has posted his very interesting analysis of why he believes that requiring health care insurance is unconstitutional under existing Commerce Clause precedents. A key part of his argument is that requiring health care insurance is not regulating commercial activity because it attempts to regulate inactivity:

To assess the constitutionality of a claim of power under the Commerce Clause, the primary question becomes, “what class of activity is Congress seeking to regulate?” Only when this question is answered can the Court assess whether that class of activity substantially affects interstate commerce. Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance. Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

Proponents of the individual mandate are contending that, under its power to “regulate commerce...among the several states,” Congress may regulate the doing of nothing at all! In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. To uphold this power under its existing doctrine, the Court must conclude that an individual’s failure to enter into a contract for health insurance is an activity that is “economic” in nature– that is, it is part of a “class of activity” that “substantially affects interstate commerce.”

Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power. Such a regulation of a “class of inactivity” is of a wholly different kind than any at issue in the Court’s most expansive interpretations of the Commerce Clause.

Unlike Randy, I am no expert in the commerce clause. At the same time, the counter-argument is worth flagging, and I believe it runs like this. Everyone pays for health care goods and services somehow, whether often or only once-in-a-while. Some pay for services individually on their own. Others pay through a pre-purchased insurance plan. Both ways are economic activities — purchasing health care services. From this perspective, if the government chooses to mandate one option, it is not regulating “inactivity.” Rather, it is regulating the economic activity of buying health care services by replacing one means of buying those services with another way of buying those services. 

Also, I’m not sure that the regulation of inactivity under the Commerce Clause is as unprecedented as Randy suggests. Gonzales v. Raich, which Randy argued for Raich, is notable here. The Controlled Substances Act at issue in Raich banned both activity and inactivity. On one hand, it banned the activity of manufacturing, distributing, and dispensing controlled substances. On the other hand, it also banned the inactivity of possessing controlled substances. If you happened to have marijuana in your closet when the CSA went into effect, and thus were already in possession of it, the CSA regulated your inactivity by requiring you to act: The law mandated that you dispossess yourself of your marijuana or else face severe criminal punishment. And yet the majority opinion in Raich readily construed the ban on both activity and inactivity relating to controlled substances to be a straightforward regulation of economic activities:

[T]he activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

That is, Congress could regulate the inactivity of possession because it was a rational and common means of regulating commerce in the product. By that reasoning, Congress can regulate the inactivity of not buying health care insurance because it is a rational way of regulating the health care market. 

As I said, unlike Randy I’m not an expert in the commerce clause. But I thought it was worth flagging the counterargument for those interested in these issues.

The Baton Rouge Advocate reports on an interesting case (thanks to Mike Christensen for the pointer):

Anthony Manzella ... and Andrew Robertson ... were on one side of an alleged drug deal ... and ... Johnny Barnes ... was on the other side.

Barnes’ companion, Jeral Wayne Matthews Jr. ... allegedly struck Manzella[] in the head with a rifle butt before the deal was finished, and Manzella shot and killed Matthews with a .40-caliber handgun, Clinton police said in July....

Twentieth Judicial District Attorney Sam D’Aquilla said he interprets a section of the law dealing with justifiable homicide to preclude self-defense in drug deals that result in a homicide.

I disagree with the DA’s interpretation of the statute, which reads:

A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention....

(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.

(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

The provision to which the DA is pointing, (4)(b), pretty clearly limits just (4)(a); that’s what its placement suggests, and my quick search through some other Louisiana provisions suggests that “paragraph” likewise refers just to a subsection and not to the whole section. Even drug criminals are entitled to defend themselves against imminent threats of death or great bodily harm (though likely limited by the well-established principle that one generally loses one’s right to self-defense when one is the initial attacker in the first place) — they just aren’t entitled to benefit from paragraph (4)(a)‘s authorization to use deadly force against unlawful entry.

[UPDATE: Commenter PatHMV points out a theory that might work for the prosecution: The Louisiana statute that bars self-defense by someone who is the initial attacker reads (alluded to in the parenthetical above) reads “A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict”; and one could argue that engaging in a drug deal counts as “bring[ing] on a difficulty.” But that doesn’t seem to be the prosecution’s theory, at least according to the article, and it’s also not clear whether simply engaging in an illegal transaction of a sort that may often lead to violence counts as “bring[ing] on a difficulty,” a phrase that is generally used in self-defense law to refer to deliberately provoking someone to fight.]

Still, there’s a broader conceptual issue here as well: To what extent is it proper for the law to strip criminals of the right to self-defense, when they aren’t the initial attacker? Here’s a discussion of this from Perkins v. State, 576 So. 2d 1310 (Fla. 1991):

Continue reading ‘Drug Dealers’ Self-Defense Against Other Drug Dealers’ »

I much enjoyed Randy’s and my exchange at Heritage today. I’m afraid I don’t have a write-up of my views, and probably won’t; but I did want to mention one broader point (on which I suspect Randy and I don’t disagree).

When people debate whether a proposed bill (or even an enacted statute) exceeds Congress’s enumerated powers, some often point to the Court’s precedents: The Court has held that such laws are constitutional, so that should be the end of the constitutional debate (or very nearly the end of the constitutional debate). But I don’t think this is right.

The premise of much of the Court’s expansive view of Congressional powers is deference to Congress. “In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.” “[W]e must defer to a congressional finding that a regulated activity affects interstate commerce “if there is any rational basis for such a finding,” and we must ensure only that the means selected by Congress are ’”reasonably adapted to the end permitted by the Constitution.“‘”

So it’s up to Congress, the Court says, to decide in the first instance whether the law fits within an enumerated power — whether it serves the general welfare, or sufficiently affects interstate commerce, or is necessary and proper for regulation of commerce, or the like. We Justices won’t reject Congress’s judgment unless it’s irrational. But this presupposes that members of Congress will decide whether, in their view, the law fits within the federal government’s enumerated powers — not just whether it’s rational to so believe, but whether they actually think this is so. And that decision generally isn’t dictated by the Court’s past precedents, which decided only whether past Congressional decisions were not unreasonable, not whether they were right.

Now of course members of Congress might well conclude that the Constitution does give Congress broad powers to regulate. They might read the text, which is often ambiguous (consider the phrase “necessary and proper”) broadly. They might well view American legal tradition as part of the current constitutional framework, so that something that was often done by past Congresses (and deferred to by past Courts) becomes constitutional even if its constitutional validity as a matter of text and original meaning is questionable. Or they might take a broader view still. One can debate which interpretive approach is right, but that’s not my point here.

My point here is that members of Congress should decide whether a proposal violates the Constitution as they understand it — and if they do so decide, they can’t be faulted just on the grounds that “the Court said this is constitutional.” In the scenarios I discuss here, the Court has generally simply said that it will defer to a wide range of Congressional judgments about whether a law is within Congress’s enumerated powers; it hasn’t purported to tell members of Congress how they should view those powers. This also applies to citizens: Public arguments that some proposed bill exceeds the federal government’s powers and that members of Congress should therefore oppose it can’t be adequately met with “But the Court said this is constitutional.”

Note, incidentally, that this position is quite consistent with the view that Congress usually should defer to the Court’s judgments that Congress’s powers are constrained in certain ways. (There’s a debate about that, but I need not resolve it here.) In those cases — for instance cases discussing limits imposed by the First Amendment, the Ex Post Facto Clause, and even the few limits that the Court has enforced under the enumerated powers doctrine — the Court has indeed reached an independent judgment that the Constitution forbids something. That judgment may well be entitled to great or even nearly absolute deference from Congress. (Even those who think that Congress has its own interpretive obligations often agree that for various institutional reasons Congress should pay great respect to a coordinate branch’s judgment about what is actually forbidden by the Constitution.) But when the Court’s judgment is simply that it defers to Congress’s judgment, there’s nothing for Congress to defer back to: Rather, it’s then especially clear that members of Congress must decide for themselves whether their proposals are within their enumerated powers.

Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional by Randy Barnett, Nathaniel Stewart and Todd F. Gaziano is now available on the Heritage website. Eugene and I had a very spirited exchange of opinions on this subject this afternoon at Heritage, after some excellent remarks by Senator Hatch. When there is a link to the video of the event, I will post it.

Here is the Executive Summary:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

This statement from a 1994 Congressional Budget Office Memorandum remains true today. Yet, all of the leading House and Senate health-care reform bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated by CBO to cost up to $15,000 per year for a typical family. This personal mandate to enter into a contract with a private health insurance company is enforced through civil and criminal tax penalties in section 501 of the House bill and with a freestanding mandate and equally questionable civil tax penalties in sections 501 and 513 of the pending Senate bill.

The purpose of this compulsory contract, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations. Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to “pay for” or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or — through the gimmick of unconstitutional taxes or penalties they dub “shared responsibility payments” — make these transfers appear to be revenue-enhancing.

This “personal responsibility” provision of the legislation, more accurately known as the “individual mandate” because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented — not just in scope but in kind — and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

Congress has a responsibility, pursuant to the oath of all Senators and Representatives, to determine the constitutionality of its own actions independently of how the Supreme Court has previously ruled or may rule in the future. But it is very unlikely that the Court would extend current constitutional doctrines, or devise new ones, to uphold this new and unprecedented claim of federal power.

Constitutional Overview

In reaction to states that were enacting trade barriers and violating the rights of their citizens, those who drafted and ratified the U.S. Constitution were determined both to constrain the powers of states and, at the same time, limit the power of Congress. They designed an ingenious system of checks and balances that divides state and federal authority in the hope of preventing any one government from exerting too much control over a free people. To that end, the Constitution creates a national government with a legislature of limited and enumerated powers. Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers remain beyond Congress’s reach. The Constitution’s Necessary and Proper Clause similarly grants Congress the power “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” And in his canonical opinion interpreting the Necessary and Proper Clause, Chief Justice Marshall insisted that “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the [national] government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power. Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine. This memorandum explains why the two powers cited by supporters of this bill — the power of Congress to regulate interstate commerce and the power of Congress to tax — do not justify an individual mandate, even under the most expansive readings given these powers by the Supreme Court. In particular, this paper addresses four topics that have not yet been given adequate consideration by Congress and most, if not all, of the commentators:

* First, most arguments, either favoring or opposing the individual mandate, do not discuss the Supreme Court’s “class of activities” test, which it has applied in every relevant Commerce Clause case. This paper addresses this oversight and argues that, despite the broad congressional power to regulate interstate commerce, the individual mandate provision fails this test and is unlikely to survive the Court’s review.

* Second, this paper addresses the common, but mistaken, suggestion that a universal federal mandate to obtain health insurance is no different than a state requiring its licensed automobile drivers to have liability insurance for their injuries to others.

* Third, this paper analyzes claims arising under the Taxing Clause. A preliminary review raises serious questions about the constitutionality of using the taxing power in this manner.

* And finally, this paper explains why it is highly unlikely that the Supreme Court would break new constitutional ground to save this unpopular personal mandate.

Europol, the European police consortium, has issued the following press release:

The Hague, 09 December 2009

Carbon Credit fraud causes more than 5 billion euros damage for European Taxpayer

The European Union (EU) Emission Trading System (ETS) has been the victim of fraudulent traders in the past 18 months. This resulted in losses of approximately 5 billion euros for several national tax revenues. It is estimated that in some countries, up to 90% of the whole market volume was caused by fraudulent activities.

Indications of suspicious trading activities were noted in late 2008, when several market platforms saw an unprecedented increase in the trade volume of European Unit Allowances (EUAs). Market volume peaked in May 2009, with several hundred million EUAs traded in e.g. in France and Denmark. At that time the market price of 1 EUA, which equals 1 ton of carbon dioxide, was around EUR 12,5.

As an immediate measure to prevent further losses France, the Netherlands, the UK and most recently Spain, have all changed their taxation rules on these transactions. After these measures were taken, the market volume in the aforementioned countries dropped by up to 90 percent.

With the support of Belgium, Denmark, France, the Netherlands, Spain and the United Kingdom Europol has set up a specific project to collect and analyse information in order to identify and disrupt the organised criminal structures behind these fraud schemes. There are reasons to believe that fraudsters might soon migrate towards the gas and electricity branches of the energy sector.

Mr. Wainwright, Director of Europol, says “These criminal activities endanger the credibility of the European Union Emission Trading System and lead to the loss of significant tax revenue for governments. Europol is using its expertise and information capabilities to help target the organised crime groups involved”. Europol has therefore offered its support to the European Commission — DG Environment to safeguard the integrity of the Community Independent Transaction Log.”

This is not terribly surprising, though I suspect that the problem is much more widespread than even this report alleges. 

Pretty funny, I think. Hat tip: Ann Bartow.

I recently participated in a terrific symposium hosted by the Ohio State Law Journal on Originalism and the Jury. The Law Journal has now posted the videos of the panels here. I was on a very fun panel with Judge Nancy Gertner, Doug Berman, and Stephanos Bibas hosted by Dean Alan Michaels that you can watch here. (I speak starting around the 46-minute mark. I get to accuse Doug Berman of believing in “DougBermanism” rather than originalism during the Q&A, at the 1:02 mark.)

The Federalist Society has announced some details of the 2010 student symposium: It will be on “Originalism 2.0,” and it will be held at the University of Pennsylvania Law School on February 26–27, 2010. The panels, debates, and discussions include the following:

Originalism: A Rationalization for Conservatism, or a Principled Theory of Interpretation?
Originalism and Construction: Does Originalism Always Provide the Answer?
Does the Originalism of the Fourteenth Amendment Guarantee Justice for All?
Originalism, Precedent and Judicial Restraint
Originalism in Criminal Procedure: Ancient Checks or Newfangled Rights?

Details are available from the link above. Looks like a terrific symposium, as always. If you’re an active student member of the Federalist Society, you should try to go. The timing is particularly interesting because it’s the weekend before the oral argument in McDonald, so no doubt McDonald will be prominently addressed. (Although why are they using Originalism 2.0? I updated to Originalism 3.1 several months ago, and it’s much more stable.)

UPDATE: On an only tangentially-related front, the Federalist Society is also hosting a cool panel in Silicon Valley tomorrow:Data Collection, Privacy, and Competition. I don’t know if they’re going to talk about originalism, but with the FedSoc, that’s never a bad bet.

This is further to Jim’s post below on the Precautionary Principle and climate change; it also goes obliquely to a couple of Eric’s posts on the climate change debates.  I’ve been meaning to raise Cass Sunstein and his very interesting book Worst-Case Scenarios in this context, but I’ll be very brief.

Jim points out that Friedman wants to “go Cheney on climate change” — meaning by that, Vice-president Cheney famously embraced the so-called 1% doctrine, according to which if some horribly, truly unacceptable catastrophe has a 1% chance of happening, you have to treat it as 100%.  Sunstein points out, correctly, that Cheney has a potential contradiction here, because although that is his stance regarding terrorism, it is not his position regarding climate change.  Cheney would have a response in this debate, that a single discrete event, such as a catastrophic terrorist attack, or even a series of them, is not really like the diffuse accumulation of changes over a long term that constitutes climate change.  Several commentators made that observation with respect to Eric’s asteroid post, and I don’t want to carry that discussion further here, though I do think the disanalogies are very important in dealing with policy.

What I wanted to point out is that Friedman characterizes Sunstein’s view as follows:

[T]he legal scholar Cass Sunstein, who then was at the University of Chicago, pointed out that Mr. Cheney seemed to be endorsing the same “precautionary principle” that also animated environmentalists. Sunstein wrote in his blog: “According to the Precautionary Principle, it is appropriate to respond aggressively to low-probability, high-impact events — such as climate change. Indeed, another vice president — Al Gore — can be understood to be arguing for a precautionary principle for climate change (though he believes that the chance of disaster is well over 1 percent).”

Friedman goes on to endorse the Cheney view as applied not to terrorism, but to climate change.  What he does not mention is that Sunstein has an entire book, Worst-Case Scenarios, explaining why the Precautionary Principle is a bad idea whether applied to terrorism or to climate change.  Sunstein’s book substitutes for the Precautionary Principle a far more subtle and complicated set of principles instead, principles that go precisely to the issues above that Friedman bulldozes over in the name of urging Cheney-ism with respect to climate change.  (I, at least, did not think that evident from the Friedman column; one might have come away plausibly thinking that Friedman thought Sunstein would agree with him.)

Sunstein does, I take it, think climate change is real and that serious steps ought to be taken, perhaps even exactly those that Friedman urges.  Those steps are much more, I also take it, than, say, a CBA consequentialist such as Bjorn Lomborg would see as justified.  But certainly Sunstein does not reach whatever his exact views are on the basis of Friedman’s simplistic reasoning.  (Friedman quotes from Sunstein’s blog but, with all respect to our scholarly blogging, sometimes one needs to read the book.)  I won’t try to do justice to the many steps in Sunstein’s view, but just quote from early in the book (p. 14):

[N]otwithstanding its international influence, the Precautionary Principle is incoherent; it condemns the very steps that it requires.  To see the point, imagine if we adopted a universal One Percent Doctrine [Cheney doctrine], forbidding any course of action that had a 1 percent chance of causing significant harm.  The likely result would be paralysis, because so many courses of action would be forbidden.  (Even doing nothing might be prohibited...) But narrower and better precautionary principles can be devised.

Sunstein’s insight here is the incoherence of the Precautionary Principle, in the form that Friedman (or Cheney) endorses it; it can’t be universalized as a guide to action.  I have some problems with the alternatives provided in the book — to some extent, it seems as though principles are introduced ad hoc.  I also don’t think the discussion of catastrophic terrorism is correct — although, to be sure, climate, not terrorism is really the focus of Worst Case Scenarios — for reasons that I discuss in part here (not brilliantly, alas, but anyway it makes this point).  In any case, Sunstein is no fan of the Precautionary Principle as endorsed by Friedman — an observation that I think is more than merely pedantic.

Last night I was talking with a colleague about writing something on the “Precautionary Principle.”

This morning I see John Miller at the Corner writing about a Tom Friedman column pushing that very principle.

After raising Dick Cheney’s views on meeting low-probability threats from Al Qaeda and quoting Cass Sunstein on the precautionary principle, Friedman wrote:

When I see a problem that has even a 1 percent probability of occurring and is “irreversible” and potentially “catastrophic,” I buy insurance. That is what taking climate change seriously is all about.

If we prepare for climate change by building a clean-power economy, but climate change turns out to be a hoax, what would be the result? Well, during a transition period, we would have higher energy prices. But gradually we would be driving battery-powered electric cars and powering more and more of our homes and factories with wind, solar, nuclear and second-generation biofuels. We would be much less dependent on oil dictators who have drawn a bull’s-eye on our backs; our trade deficit would improve; the dollar would strengthen; and the air we breathe would be cleaner. In short, as a country, we would be stronger, more innovative and more energy independent.

But if we don’t prepare, and climate change turns out to be real, life on this planet could become a living hell. And that’s why I’m for doing the Cheney-thing on climate — preparing for 1 percent. 

Miller responds:

The “precautionary principle” drives me batty. In principle (so to speak), I’m all for it. It’s a profoundly small-c conservative concept. It urges humility and restraint in all areas of life, including public policy, where it serves as a useful guard against the unintended consequences that so often accompany Big Plans.

Then there’s its actual application by guys like Thomas Friedman, who deploy it whenever they find it helpful to their political agenda and ignore it when they don’t.

In his NYT column today, Friedman says there’s a greater than 1-percent chance that our planet is in the midst of a human-made global-warming disaster. So he wants to take action, which he likens to buying an insurance policy. But the very same logic could be used against kneecap-and-trade and all of the other draconian schemes that the environmental left has concocted: There’s a greater than 1-percent chance that their hubris will impoverish the world through strangling regulations and accomplish nothing in the face of a phony problem. In this context, the precautionary principle urges us to avoid buying Friedman’s expensive and risky insurance policy.

It takes sound judgment to know when the precautionary principle makes sense and when it doesn’t. Everything else is just rhetoric.

What Friedman doesn’t seem to recognize is that cutting carbon emissions by 80% is highly likely to impoverish the world. And poverty kills real people–lots of them. So by government fiat we could achieve the “living hell,” the death and economic destruction, that he fears might happen if the Al Gores of this world are right about global warming. 

Further, I suggest that people actually read the UN IPCC area reports on what might happen if global warming continues unchecked. Consider Chapter 14 on North American impacts. Given the corruption of the IPCC process, these should be taken with a grain of salt, but even these do not describe a “living hell.” We would have longer growing seasons and more rainfall over most of North America. The words “ski” or “skiing” appear five times in the report, but even there the report mentions snow-making machines offsetting the losses. (Perhaps because I don’t ski, I wouldn’t view even the total destruction of the ski industry as a significant contribution to a “living hell.”)

More seriously, the IPCC claims that there would be more frequent major storms, but the science behind that claim now looks more doubtful than it did when they wrote it. Among the many problems identified in the report, the biggest one would be threats to coastal communities from rising sea water — a problem to which North Americans would gradually adapt. (Unfortunately, this adaptation can be slowed by foolish governments pouring money into rebuilding areas below sea level, as the Bush Administration did in New Orleans after the floods.)

The “living hell” would presumably fall on areas of the globe where people are not rich enough to adapt to climate change. Personally, I doubt that impoverishing them further would help in this adaptation.

Of course, what the IPCC doesn’t adequately address is why warming would be so bad this time when warming periods in the past were on balance so beneficial to humans, plants, and agriculture. See, generally, Ian Plimer’s Heaven and Earth: Global Warming, the Missing Science.