The Volokh Conspiracy

Friday, the Michigan Supreme Court handed down an interesting case — People v. Dupree on this. The case is not novel, and my sense is that the defense is generally recognized: Just as what would otherwise be the crime of murder, attempted murder, battery, and the like might be justified if done in defense against an imminent threat, so a felon’s taking possession of a gun is justified if done in defense against an imminent threat. (The defense does not apply to a felon’s arming himself against a possible threat of attack at some indefinite future time.) Still, the case struck me as an interesting illustration. Thanks to Jason C. Miller for the pointer.

Geologic time makes you feel so sort of insignificant, doesn’t it?

Via Tom Smith.

Ronald Reagan once said that the conservative D.C. weekly Human Events was his favorite newspaper. And with good reason. Back in the 1970s and 1980s, there were few significant alternatives to the then-hegemonic MSM. Along with National Review, which was Reagan’s favorite magazine, Human Events was an essential source for stories that the MSM refused to cover, and for perspectives that the MSM shut out or marginalized. Unfortunately, a recent article in Human Events falls very far below the solid journalism standards which helped Human Events earn the respect of Reagan and so many others.

“Obama The Muslim,” by  Major Gen. Jerry Curry is an article not worthy of a fifth-rate blog, let alone a serious newspaper. The latter two-thirds of the article consists of criticisms of Obama’s policies on Israel and on Arizona border security. I generally agree with those criticisms, but they provide not a shred of evidence that Obama is a Muslim. Former President Jimmy Carter is extremely hostile to Israel, and he is obviously not a Muslim. U.S. Rep. Luis Gutierrez (D-Ill.) is extremely hostile to border security, and he is not a Muslim. 

So let’s consider the evidence that Curry deploys in the first third of the article:

“President Obama says there is nothing more beautiful than the Muslim call to prayer in the evening.” “Obama’s father and step-father were Muslims and he spent his childhood living in a Muslim country where his school enrollment records say his religion is Islam.”

–All approximately but not precisely true. Four years of his childhood in Indonesia, plus a school record there. The actual prayer call quote is “one of the prettiest sounds on Earth at sunset,” not “nothing more beautiful.” This is a starting point for Curry’s case, but in itself, not even close to proof that Obama is currently a Muslim.

“He says that the United States was not founded as a Christian nation.”

–The same position was taken by the United States Senate in 1797 when ratifying the Treaty of Tripoli, and by President John Adams in signing the Treaty. Neither President Adams nor any of the 1797 U.S. Senators were Muslims.  Article 11 of the Treaty stated:

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

“As President of the United States he genuflects to the Muslim King of Saudi Arabia but not the Christian Queen of England. He thumbs his nose at America’s friends and bows to its enemies.”

–I agree that Obama is deferential and obsequious to American enemies such a Hugo Chavez and the Iranian tyrants, and that he has been the most anti-British President of the United States in well over a century, and that he is seriously harming American relations with Poland, the Czech Republic, France, and other allies. But none of that is evidence that he’s a Muslim.

As for the Saudi king: Obama did not “genuflect.” To genuflect, in a literal sense, is to bring at least one knee to the ground, as a sign of respect. Obama did not do that. He gave the Saudi king a deep bow from the waist. I thought this was a disgusting gesture for an American President, but it’s not genuflection. (“Genuflect” can also be used in a looser sense, as behaving in a servile manner. In the article, however, Curry is plainly talking about literal physical actions.)

However, Obama bowed even lower to the Emperor and Empress of Japan. That’s not evidence that Obama is a closet Shinto.

As Curry accurately states, Obama gave only the mildest quasi-bow to Queen Elizabeth II. In light of what 1776 was all about, patriotic Americans should not criticize the American President for insufficient bowing to the British monarch. One can infer from Obama’s bowing patterns that he is anti-British, and one can see that in Japan and Saudi Arabia, he went out of his way to make gestures which made himself and our nation look weak and obsequious. The bowing is evidence that he’s a poor President, but not that he’s a closet Muslim.

According to Curry, “My mother believed in ‘common sense’ testing. She said if it looks like a duck, quacks like a duck, waddles like a duck and acts like a duck; it’s a duck....In short, Obama quacks like a Muslim, waddles like a Muslim and acts like a Muslim, so is he a Muslim? My mother would say, ‘Yes! He’s a Muslim through and through.’”

I’ll give Mrs. Curry more credit than that. The looks/talks/waddles test for duck identification involves three characteristics are shared by ducks and by no other animals. Mr. Curry, however, listed only characteristics which are common to some Muslims and many non-Muslims: thinks America is not a Christian nation, dislikes the British, acts obsequious around some non-British royals, is anti-Israel, is weak on border security, tries to ingratiate himself with tyrants. Curry might as well have written, “It has two eyes, lives near water, and eats fish.” Sure, it might be a duck, but it also might be a lots of other things. Such as a law school lecturer who agrees with most of the beliefs of the far-left Christian church he attended for twenty years.

Curry’s final item of alleged proof: “Growing up as a Muslim, Obama must have learned that according to the Qur’an it is acceptable to lie, deceive and live by a double standard provided in so doing one advances Islamic goals. Muslims only pretend to trust and be friends with non-Muslims; in the deepest of their Muslim hearts they have been taught that all non-Muslims are infidels.”

–Generally speaking, “must have” conjectures are not evidence of anything. For the sake of argument, let’s temporarily accept the claim that Islamic teaching sanctions lying in certain cases. Even so, there is no evidence that “Obama must have learned” this particular alleged teaching. His Muslim education did not continue past an early age. It might be plausible to presume that he was taught some elementary tenets of Islam (e.g., there is only one God; God spoke to mankind through a series of prophets, culminating in Muhammed; the Qur’an is scripture.) There is simply no evidence that the “lying to infidels is OK” theory of Islam is universally taught in Muslim education for young children, or, for that matter, to all persons who progress through a full course of Muslim religious instruction. That some Muslims teach the acceptability of lying, and that some Muslim scholars endorse this approach, does not prove that Obama “must have” been taught this particular theory.

It would usually be a sign of bad character for any elected official to proclaim his adherence to one religion while secretly adhering to a very different religion. However, Curry’s strongly-stated conclusion is not even remotely supported by the feeble and poorly-researched evidence which he cobbles together. The article should never have been published by Human Events. Of course even eminent publications such as The Atlantic can have a writer who wallows in malicious speculation based on extremely weak and poorly-considered evidence. 

Jerry Curry’s article is not proof that Human Events never produces good articles, nor is Andrew Sullivan’s Trig Trutherism proof that The Atlantic does not publish good articles. However, because reading time is finite, when I choose to read an edited periodical, I try to choose periodicals for which I have confidence that the editors have done a good job in selecting reliable, credible columnists. Accordingly, Human Events’ retention of Curry as a columnist, like The Atlantic’s  retention of Sullivan, often make me choose to prioritize reading other periodicals instead.

I think that in our multicultural time, all Americans should be able to answer some basic questions about various minority groups. Here are three that come to my mind:

1. In December, most African-Americans celebrate a winter holiday called __.

2. Most American Jews organize their lives around the __ calendar.

3. People in the 48 contiguous states who are descended from peoples who inhabited the Americas before the European conquest (but are not Hispanic) are most likely to prefer that their racial group be called __. [UPDATE: I added the parenthetical in response to Bumpjon’s comment, and the reality that many people do treat Hispanic as a racial designation, even though the census and many others view it as an ethnic one that could apply to people of any race.]

To see the answers, click on the “Continue” link that immediately follows this line:

Continue reading ‘Multicultural Literacy Quiz’ »

From Sonnier v. Crain (5th Cir. July 27):

Sonnier argues ... that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion ... in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] ... [that] exceeds the usual and normal costs of law enforcement ....” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said ... activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit....

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

Continue reading ‘Important Case on Public Universities’ Charging Speakers Security Fees (Especially in Anticipation of Possible Hostile Reaction by the Audience)’ »

Sonnier v. Crain (5th Cir. July 27) has an interesting discussion, in which the Fifth Circuit panel (by a 2-to-1 vote) defers considerably to universities’ prerogatives, even without deciding that the university locations are not public fora. The appellate court upholds the trial court’s denial of a preliminary injunction of a policy that required all public assemblies or demonstrations — even organized by small groups — to get a permit (1) for which seven days’ notice was required, (2) which would only be issued to each individual or group for two hours once per week, (3) for which the applicant had to provide various personal information, and (4) which was limited to a few specific locations around campus. The court repeatedly stressed that even though some such restrictions might be unconstitutional on city sidewalks and other such places, the university had broader authority to imposed content-neutral speech restrictions on its campus.

The court did note, however, that the plaintiff might still prevail in an as-applied challenge, after more discovery. Its reasoning is also limited to content-neutral speech restrictions.

It’s Ostergren v. Cuccinelli (4th Cir. July 26). I’m on a trip with my son and can’t blog much this week, and the case is complex enough that I can’t quickly summarize it, though the short answer is that the speaker won. But if you’re interested in free speech vs. information privacy questions, you should check it out. Here’s the opening paragraph:

This appeal arises from a First Amendment challenge to Virginia’s Personal Information Privacy Act, Va. Code §§ 59.1–442 to –444. Section 59.1–443.2 prohibits “[i]ntentionally communicat[ing] another individual’s social security number to the general public.” The district court found this section unconstitutional as applied to an advocacy website that criticized Virginia’s release of private information and showed publicly available Virginia land records containing unredacted Social Security numbers (“SSNs”). Later, the court entered a permanent injunction barring Virginia from punishing the republication of “publicly obtainable documents containing unredacted SSNs of Virginia legislators, Virginia Executive Officers or Clerks of Court as part as [sic] an effort to reform Virginia law and practice respecting the publication of SSNs online.” Both decisions are challenged on appeal. For the reasons that follow, we affirm in part and reverse in part.

There’s a Washington Post article summarizing the case.

I just read the opinion. This probably isn’t very helpful, but here are some quickly-assembled thoughts nonetheless.

The first thing to know is that Judge Bolton’s opinion is based on a preemption theory. That is, her view is that some of the sections of the state law are preempted by federal immigration law. The gist of preemption that under the Supremacy Clause, federal law trumps an inconsistent state law. Unfortunately, I can’t say very much about whether Judge Bolton’s opinion is persuasive or not because I’m not sufficiently familiar with preemption law or the details of federal law at issue. 

Specifically, Judge Bolton construes some of the vague provisions of the Arizona law; concludes that those sections are inconsistent with the general concerns underlying the federal immigration policy; and then she blocks those sections from going into effect. The key precedent Judge Bolton relies on — and thus the place to start if you want to know more — is Hines v. Davidowitz, 312 U.S. 52 (1941).

Given that parts of Judge Bolton’s opinions are based on a statutory interpretation that the lawyers for Arizona themselves rejected, I would guess there is a possibility that this opinion may ultimately lead the Arizona legislature to pass amendments to the Arizona law clarifying some of the sections. But that’s just a guess. 

Anyway, sorry I can’t be more helpful in evaluating the correctness of the decision: You’d really need to know a lot more about preemption law and federal immigration law to speak on that with any authority.

A quick response to Jim on BirthdayCardGate: Whether we should be disturbed by a mass e-mail sent by the Obama campaign has no relationship I can identify to the particular means by which Jim’s voluntary contact with the Obama campaign led to his name being added to the campaign e-mail list. As a result, my reaction to the e-mail remains the same. 

In addition, I note that the campaign website has an information page with the following entry:

Opting out and modifying information:

Subscribers to our e-mail list may terminate their subscriptions via a link at the bottom of each email sent from BarackObama.com.

Jim initially claimed that the e-mail he received was from Michelle Obama, not (as he now acknowledges) from the Obama campaign. But assuming the e-mail was actually from the campaign, and therefore has the link at the bottom allowing him to unsubscribe, I recommend to Jim that he click on the link. 

UPDATE: A reader who received the same e-mail confirms that it was sent from the address “info@barackobama.com,” and that the bottom of the e-mail contains the following message:

Paid for by Organizing for America, a project of the Democratic National Committee — 430 South Capitol Street SE, Washington, D.C. 20003. This communication is not authorized by any candidate or candidate’s committee.

This email was sent to: [address]

Change Email Address | Unsubscribe

This morning, U.S. District Court Judge Susan Bolton issued a preliminary injunction blocking key provisions of Arizona’s immigration law from taking effect on the grounds that these provisions are likely to be preempted by federal law.  The Arizona Republic reports:

Key parts of Senate Bill 1070 that will not go into effect Thursday:

•  The portion of the law that requires an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion they’re in the country illegally.

•  The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

•  The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. (This does not include the section on day laborers.)

•  The portion that allows for a warrantless arrest of a person where there is probable cause to believe they have committed a public offense that makes them removable from the United States.

The ruling says that law enforcement still must enforce federal immigration laws to the fullest extent of the law when SB 1070 goes into effect at 12:01 a.m. Thursday. Individuals will still be able to sue an agency if they adopt a policy that restricts such enforcement.

Bolton did not halt the part of the law that creates misdemeanors crimes for harboring and transporting illegal immigrants.

The order is here.  NYT coverage here.

In a post below, Orin Kerr expresses his opinion that he does not find the Obama birthday email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. 

Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). . . . 

Given that this apparently was . . . only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign. 

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list. 

Orin is mistaken on the factual basis for his opinion. 

Would having the facts right change his opinion? Frankly, I don’t know.

In his post below, Jim suggests that the e-mail he received from the Obama campaign about celebrating the President’s birthday is “a bit creepy”:

[A]sking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear.

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

My reaction is quite different. As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). Politicians and political campaigns maintain lists of supporters for lots of reasons, but I think it’s generally understood that the contents of the communications are pretty light fare. They’re messages to keep supporters engaged and help them feel involved, presumably on the theory that supporters who feel engaged and involved are more likely to give money. I assume that was the idea behind the e-mail; it gives supporters a (rather cheesy) opportunity to feel close to the President. Given that this apparently was just a campaign e-mail, only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

I received the following email from First Lady Michelle Obama:

SUBJECT: Will you sign Barack’s birthday card, James?

James –

Every year, our family tries to come up with a fun way to wish Barack a happy birthday.

And this August 4th, when he turns 49, I have something new in mind.

This has been a big — and hectic — year for him. After signing the Affordable Care Act and Wall Street reform into law — and completing his first year as president — I think it’s safe to say we will remember it for a long time.

And I know full well how much he credits this movement, and the work of supporters like you, for the change that we’ve accomplished.

So I’m putting together a birthday card that I would like you to sign. Together with other Organizing for America supporters — and me, Malia, Sasha, and Bo — we’ll wish him a happy birthday and let him know that we’re ready to take on the year ahead alongside him.

Will you wish Barack a happy birthday with me?

This year also brought a lot of surprises — some good and some bad.

Supporters like you have helped him make the best of it — by contacting Congress to help push stalled legislation forward, by re-engaging supporters in the political process, by giving back with service projects across the country, and so much more.

And while we can’t know what the coming year will bring, all of us, working together, will continue pushing forward for change.

Will you help make this a memorable birthday for Barack and wish him a happy 49th?

http://my.barackobama.com/birthday

Thanks so much,

Michelle Obama

I find it hard to say precisely why I find this email a bit creepy. At one level this seems innocuous enough–and it is definitely not a big thing. 

At another level, asking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear. 

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

Last, it seems strange for Michelle Obama to be trying to get us to sign Barack’s birthday card when she is scheduled to be in Spain with [at least one of] her daughters during the President’s birthday.

UPDATE: In a subsequent post, Orin Kerr expresses his opinion that he does not find this email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. Orin writes: 

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). 

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence, I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign. 

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list. 

Orin is mistaken on the factual basis for his opinion.

I’m going to be a visiting professor at Penn in the Spring 2011 semester, and I wanted to get the word out about course scheduling changes in light of it (with my apologies for using the blog for such a limited audience).

Continue reading ‘Scheduling Note for Law Students at GW and Penn’ »

Inception is a great movie. Perhaps one of the greatest of all time. You should see it without reading reviews, or learning anything about the film beforehand. For those of you who have seen it, some thoughts about various meanings are below the fold. Continue reading ‘Understanding Inception’ »

The Competitive Enterprise Institute has organized a timely letter opposing the Comprehensive Alcohol Regulatory Effectiveness (CARE) Act.  The aim of the law is to largely overturn Granholm v. Heald by making it easier for states to sustain discriminatory barriers to interstate commerce by shifting the burden of proof to challenges to discriminatory laws.  It would also basically eliminate Pike “undue burden” challenges to alcohol regulation.

Earlier this year, I blogged a lot about the circuit split that has emerged on a critical question of Fourth Amendment law: Whether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final. As regular readers might recall, I filed a pro bono cert petition in United States v. McCane to try to get the Supreme Court to take the issue, and after that petition was denied, I wrote a series of blog posts on why I think the good faith exception does not apply in that setting.

Now that I’m back blogging, I thought I would flag an important development: After opposing certiorari in McCane, the DOJ recently changed course and filed its own petition for certiorari seeking review of the same issue in the case that created the direct circuit split with McCane, United States v. Gonzalez. You can read DOJ’s petition for certiorari in Gonzalez here. DOJ’s new position makes it very likely that the Supreme Court will agree to hear this issue in the upcoming Term.

I’m presently writing a new law review article on the question, tentatively titled Good Faith, New Law, and the Scope of the Exclusionary Rule. I will post the draft as soon as it’s complete, which should be in about 2 or 3 weeks.

Julian Sanchez and I just recorded a dialogue on bloggingheadsTV about the wikileaks affair and “Top Secret America.”

In a recent post, Orin (relying on an argument by H. Lorne Carmichael) cites faculty self-selection as an argument for tenure:

The basic idea is that tenure is a necessary evil because faculties vote on who to let join them: If professors know that their own jobs will be in jeopardy if they hire someone better than themselves, they will make sure that they only hire incompetent new people. 

This is indeed a much stronger argument for tenure than the usual academic freedom rationale, which I criticized here. Still, I’m not persuaded.

Even if we need to give faculty some job security to get them to avoid hiring incompetents, lifetime tenure strikes me as overkill. Guaranteed longterm contracts of, say, ten years should greatly reduce the perverse incentives identified by Carmichael without giving people a lifetime sinecure. Furthermore, faculty incentives don’t all cut one way. A faculty that hires mostly incompetents will quickly undercut its prestige, and most academics are very prestige-conscious. Think about how badly many faculty at lower-ranked institutions want to move up to more prestigious ones.

In addition, I’m not convinced that the system of faculty self-selection is actually the best available option. In most industries, hiring labor is a management responsibility, in part for the kinds of reasons Carmichael identifies: we don’t want workers voting to hire incompetents who will make the incumbents look good by comparison. In academia, new faculty are hired by incumbents because the latter generally have more expertise on the relevant subject than administrators do. However, incumbent faculty are not the only possible source of relevant expertise. Administrators could also draw on the knowledge of relevant experts at other institutions, including faculty at other schools, scholars in government and industry, and so on. We already do this to some extent. For example, tenure committees routinely solicit reports about the candidate from outside reviewers. 

Some combination of long-term contracts and increased reliance on outside expertise should enable universities to eliminate tenure without incentivizing academics to hire incompetents. The system wouldn’t be perfect. But it would likely be a lot less flawed than the perverse incentives of tenure itself.

Ilya has been doing some recent blogging about tenure, and I thought I would flag what seems to me the most persuasive argument in its favor: Academics are the best judges of who is a good academic, and tenure is necessary to ensure that a group of academics will hire the best person to fill an open faculty slot. This argument is made in detail in H. Lorne Carmichael, Incentives in Academics: Why Is There Tenure?, 96 Journal of Political Economy 453 (1988). The basic idea is that tenure is a necessary evil because faculties vote on who to let join them: If professors know that their own jobs will be in jeopardy if they hire someone better than themselves, they will make sure that they only hire incompetent new people. 

Maybe everyone else is familiar with this argument, but I hadn’t seen it until recently: It turned me from a tenure skeptic to a modest supporter. 

A message from Stone, via his p.r. agency: 

In trying to make a broader historical point about the range of atrocities the Germans committed against many people, I made a clumsy association about the Holocaust, for which I am sorry and I regret. Jews obviously do not control media or any other industry. The fact that the Holocaust is still a very important, vivid and current matter today is, in fact, a great credit to the very hard work of a broad coalition of people committed to the remembrance of this atrocity — and it was an atrocity.

Ellen (9) and Madeline (2) saw their first wild bear today: a Cinnamon black bear south of Mammoth Hot Springs in Yellowstone National Park.  Appropriately enough, it’s a Monday, the day for bear blogging.  The picture is below.

Some college readers might be interested in ISI’s College Student Essay Contest: “Totalitarianism, Tweets, and Turf: Human Community in an Age of Techno-Globalism.”  It is inspired by Robert Nisbet’s book, “The Quest for Community.”  I read it back in college and remember thinking it was a pretty interesting discussion of the importance of civil society institutions for human flourishing.  Check it out if you are interested.

I received a speeding ticket today (corner of Route 50 and N. Edison, eastbound on 50, laser sped trap, for our Northern Va. readers). I happened to have glanced at my speedometer at the bottom of the relevant hill, and the officer claimed that he clocked me way above that speed at the top of the hill (and I wasn’t braking or stopping short at the bottom!). 

Needless to say, I plan to challenge this ticket. Two blegs: First, under the charge description, it says “OPS 6 + 663.7.” What the heck does that mean? Second, is there any good basic manual out there for challenging laser tickets, especially with reference to Virginia law?

Even before Mel Gibson made his infamous anti-Semitic remarks, Gibson became a very unpopular and disliked figure in Hollywood due to the controversy over The Passion of the Christ and his remarks that skirted close to Holocaust denial. After a drunk Gibson said, “Fucking Jews... The Jews are responsible for all the wars in the world,” Ari Emanuel, undoubtedly reflecting broader sentiment, wrote, “People in the entertainment community, whether Jew or gentile, need to demonstrate that they understand how much is at stake in this by professionally shunning Mel Gibson and refusing to work with him, even if it means a sacrifice to their bottom line.”

It will be interesting to see whether Oliver Stone, who has now expressed the classic anti-Semitic view that “Jews dominate the media,” will receive the same treatment. Stone, in the Sunday Times (original behind paywall):

“Hitler did far more damage to the Russians than the Jewish people, 25 or 30m.”

Why such a focus on the Holocaust then? “The Jewish domination of the media,” he says. “There’s a major lobby in the United States. They are hard workers. They stay on top of every comment, the most powerful lobby in Washington. Israel has f***** up United States foreign policy for years.”

Gibson was an easy target for Hollywood liberals and leftists. A right-winger and a religious Catholic, Gibson was the perfect manifestation of Hollywood liberals’ stereotypes of anti-Semites.

Stone, by contrast, is a Buddhist leftist of partial Jewish descent, the kind of person the Hollywood left usually thinks of as “one of the good guys.” Stone even was clever enough to follow his anti-Semitic remark about Jewish domination of the media, noted in the context of Hitler and the Holocaust, with some pablum about the Jewish lobby, Israel, and American foreign policy. This had nothing to do with the topic at hand, but Stone’s apologists will inevitably claim that his remarks were aimed at the “Israel lobby,” and not Jews per se.

So, what will it be for Hollywood liberals? Is anti-Semitism only unacceptable when it comes from right-wing Christians, or equally bad when it comes from non-Christian leftists, who add a bit of anti-Israel window dressing? (The early returns are not promising; so far, the left-wing blogosphere has responded to Stone’s remarks with deafening silence).

UPDATE: I don’t expect our readers to be scholars of anti-Semitism, but it shouldn’t take a scholar to know that talking about Jewish “domination” of the media, in precisely those terms, is what anti-Semites from Henry Ford to Stormfront have trafficked in for decades. Just Google it, and you get David Duke, Whitehistory.com, etc. Whether or not Stone is himself an anti-Semite, he’s no dummy, and surely is aware of the baggage that “Jewish domination of the media” carries.

There has been much grousing in the legal profession and blogosphere about the recent National Association of Law Placement report finding that recent law graduates have a “bimodal” pay distribution: while those who get jobs in big firms have starting salaries around $160,000 per year, few others top $75,000. No doubt, this finding will lead to renewed claims that lawyer salaries are too low, and that we need to restrict the supply of lawyers further. I previously criticized such arguments here.

There is no doubt that only a minority of new lawyers will get 160K starting salaries and that most will earn a great deal less than that. This is not a new finding by any means. Still, the NALP data does not change the fact that most lawyers earn quite impressive incomes. It is important to remember several key points that have been absent from most of the discussion of the data so far.

First, these are merely entry-level first year salaries. In law, as in most professions, pay increases with years of experience. Data on overall lawyers’ salaries compiled by the Labor Department shows that the median lawyer makes some $113,000 per year (meaning that 50% of lawyers make that much or more). Even lawyers at the 25th percentile of pay in the profession make about $76,000 per year. You have to go to the bottom 10% of the profession to find lawyers making under $55,000 per year. Thus, claims that most lawyers can expect to earn “somewhere between $30,000 and $60,000 a year” are misleading at best.

Second, the data for the Class of 2009 are taken from a year that saw the worst economic downturn in some 30 years. In such a period, employment prospects and salaries tend to be down in almost every profession. The relevant time horizon for lawyers, however, is the entire 30 to 40 year period of their expected career. On that score, it is difficult to make any precise forecasts. Still, the continued growth in the scope and complexity of law suggest that the demand for legal services is likely to rise. The demand for lawyers is inevitably closely tied to the growth of government and law.

Furthermore, the NALP data for the class of 2009 show that the median graduate has a salary of about $72,000; in other words, 50% of first year lawyers can expect to make that much or more. Even if you adjust the figure downward a little to reflect reporting rates skewed in favor of large firms, you still get a level of perhaps $65,000 based on the formula that NALP used to recalculate the mean salary (reducing the initial estimate by about 9%). That’s not bad for an entry level salary in the middle of a deep recession. 

I certainly don’t wish to suggest that law is the best career path for everyone, or even for more than a minority of college graduates. Some can certainly make more money elsewhere, though there are not many professions that offer comparable salaries to liberal arts graduates with few or no math and science skills. Even among those who can’t earn as much in a different field, it might be reasonable to go into a profession that has more interesting work or shorter hours. In my view, too many people choose law school as a sort of default option without fully considering the alternatives. That said, recent complaints about lawyer pay are overblown, and the NALP data does not change that fact.

Since I am a law professor, some will be tempted to dismiss my comments on this issue on the ground that I have a self-interest in encouraging more people to go to law school. Perhaps so. But I have advocated many policy reforms that are not in the interest of either lawyers or law professors, including reducing the size and complexity of government (which would depress demand for both lawyers and legal academics) and abolishing the legal requirement that people must attend law school before entering the legal profession. In any event, the validity of any argument is independent of advocates’ motives for making it.

UPDATE: I should note that the NALP and Labor Department data do not account for lawyers who are unemployed. Unfortunately, neither these sources nor others I have looked at have shown anything approaching a good estimate of the unemployment rate among lawyers. However, it seems unlikely that there is large Marxian “reserve army” of unemployed lawyers out there. If there were, one would expect lawyer salaries to drop substantially as competition from the unemployed drives down the pay of those who have jobs, especially at the lower ends of the distribution (e.g. — the 10th and 25th percentiles noted in the post). Yet the Labor Department data shows lawyer salaries holding fairly steady. For example, today’s 10th percentile salary of $55,000 per year is actually slightly higher than the prerecession 2007 figure. That would be highly improbable if there were large-scale unemployment among lawyers.

In his much-discussed recent Wall Street Journal op ed, Virginia Senator James Webb makes some good points about affirmative action and race, but also some key mistakes and omissions. On the plus side, Webb’s article highlights the contradictions between the “diversity” and compensatory justice rationales for affirmative action. He also correctly suggests that slavery and segregation inflicted considerable harm on southern whites as well as blacks; it is therefore a mistake to view these injustices as primarily a transfer of ill-gotten wealth from one race to another. On the negative side, Webb is very unclear as to his own position on affirmative action. He also seems to blame racism and the historic economic backwardness of the South on the machinations of a small elite. The reality was more complicated. Low-income southern whites were often much more supportive of racism and segregation than economic elites were, and Jim Crow might have been less virulent without their support. 

I. Competing Rationales for Affirmative Action.

One of Webb’s best points is that affirmative action has resulted in preferences for groups that cannot claim to be victims of massive, systematic injustices inflicted in the United States:

In an odd historical twist that all Americans see but few can understand, many programs allow recently arrived immigrants to move ahead of similarly situated whites whose families have been in the country for generations. These programs have damaged racial harmony. And the more they have grown, the less they have actually helped African-Americans, the intended beneficiaries of affirmative action as it was originally conceived....

The injustices endured by black Americans at the hands of their own government have no parallel in our history, not only during the period of slavery but also in the Jim Crow era that followed. But the extrapolation of this logic to all “people of color”—especially since 1965, when new immigration laws dramatically altered the demographic makeup of the U.S.—moved affirmative action away from remediation and toward discrimination, this time against whites.... 

This state of affairs highlights the contradictions between the compensatory justice and “diversity” rationales for affirmative action, which I previously discussed here, here, and here. Under the latter, it may be permissible to give preferences to any group with a supposedly different or unique perspective. Under the former, recent immigrants and other minorities who have not been victims of massive large-scale discrimination in the US should not get preferences. Even among black beneficiaries of affirmative action at elite universities, a significant percentage are recent West Indian and African immigrants.

Like Webb, I tend to be skeptical about the “diversity” rationale and at least somewhat sympathetic to the compensatory justice argument. Unfortunately, Webb doesn’t make clear whether his position is that affirmative action preferences should be abolished entirely or limited to African-Americans. If the latter, should they be limited to descendants of victims of slavery and Jim Crow, or should recent immigrants continue to be included (as they usually are now)?

II. Jim Crow Racism as a Negative-Sum Game.

Webb’s other good point is that whites are not a “monolith,” emphasizing that the historic economic backwardness of the South greatly harmed southern whites as well as blacks. He could have made this point stronger by noting that that backwardness was in large part the legacy of slavery and Jim Crow. As economic historians have documented, these institutions prevented the South from fully utilizing the abilities of some one third of its population and tended to deter economic innovation and outside investment. It’s no accident that the economic rise of the “New South” really took off only after the Jim Crow system was eliminated in the 1960s. 

Slavery and Jim Crow are sometimes seen as a massive transfer of wealth from blacks to whites, a kind of zero-sum game where one group plundered the other. Advocates of reparations argue that the beneficiaries of injustice must therefore compensate the former by returning their ill-gotten gains. There is no doubt that some whites benefited from the system. Overall, however, slavery and Jim Crow were negative-sum games that harmed both groups (albeit blacks suffered much more). The net impact of slavery and segregation on southern white wealth was almost certainly negative, once we take into account the harm caused by the resulting economic backwardness, the expenses associated with repressing blacks, and the massive destruction wrought by the Civil War.

III. Webb and the Role of Poor Whites.

Unfortunately, Webb seems to treat poorer whites as passive victims “dominated by white elites who manipulated racial tensions in order to retain power.” In reality, poorer southern whites tended to be strong supporters of slavery and segregation. In the Jim Crow era, they often supported the system much more strongly than wealthier whites and business interests did. For as far back as we have survey data, support for racism and segregation among whites was inversely correlated with income and education. When Jim Crow laws were first established in the late 19th century, elite business interests often opposed the system because they feared it might damage their economic interests. Populist political pressure overcame that opposition. Populist racism often led political elites to take more segregationist positions than they personally preferred. For example, George Wallace’s biographer Dan Carter documents how Wallace started out his career as a relative racial moderate, but switched to a hard-line segregationist position after he got “outniggered” (as Wallace put it) by a more segregationist opponent in his first campaign for governor.

The racism of low-income whites was in part the result of indoctrination by elites and state governments. It was also partly the result of rational political ignorance and irrationality. Still, the fact remains that that racism, Jim Crow, and southern economic backwardness were not just the result of manipulation by evil elites. The masses had a hand too.

We’ve seen a rash of homegrown Islamist terrorists in recent years, and there has been a lot of agonizing about why.  One explanation that I haven’t seen elsewhere still strikes me as plausible: The attraction that adolescents and the disaffected feel toward groups that their parents and teachers fear.  If you’re feeling marginalized, after all, why not choose the margin?  And while you’re at it, why not choose a marginalized group that inspires fear and unease on the part of mainstream society?  At least then you’ll get a kind of respect.

In the past fifty years, adolescents have joined a host of marginalized groups their parents found dangerous – juvenile delinquents, mods and rockers, punks, skinheads, and Goths.  So why not jihadis?  Islamist terror certainly scares authority figures; why wouldn’t Western adolescents and misfits be attracted to violent Islamism — at least as a symbolic stance?

I’m sure that’s not the only explanation for the appeal of homegrown Islamist extremism to a handful of youngsters in this country.  Some of it has to do with ties to a home culture among second generation immigrants.  But second-generation adolescents may also be tempted to affiliate with a strong, feared movement tied to their background.

Most of us think that Islamic terror is just too serious to be trivialized into a pose for disaffected Western youth.  But we may have underrated the effects of a decade of political correctness and anti-Americanism in popular culture, where the search for transgressive shock value never ends.

Take M.I.A.’s new album.  It lacks much of the raw energy and boogey rhythm that enlivened her first two albums, so transgression is pretty much all she has to fall back on.   And transgress she does.  One cut, “Illygirl,” manages to rhyme (and identify the singer with) three cultural lodestars –  her “tight jeans,” “Bruce Springsteen,” and the “muhahedin.

”

For M.I.A., in other words, Islamic terrorism is already a kind of life-style fashion item, a marginalized-and-proud, third-world stance that can be easily worn to parties in Brentwood by a wealthy former British art student.  And if it works for M.I.A., why shouldn’t it work for an immigrant kid in New Jersey?

Let’s assume that this is part of the appeal that Islamic extremism holds for Westerners.  What does that mean for policymakers?  It doesn’t mean that these “Springsteen mujahedin” won’t turn out to be very dangerous.  But it might suggest a different approach to the problem of turning them away from terror.  Some of them will just plain outgrow their infatuation.  Others will turn out to be unreliable fighters, prone to abandon the cause when they get tired or frightened by the risk.  And best of all, if the tight-jean mujahedin lose their power to shock, they’re likely to go the way of the mods and the rockers.  So maybe we should be looking for ways to speed that process by making all these Western jihadis look, well, silly and unfashionable.

Mockery may turn out to be the key to breaking the movement.  That’s what finally destroyed the mystique of the KKK. (Steven Levitt tells the story in Freakonomics — how Stetson Kennedy infiltrated the Klan, learned its secrets, and leaked them all to  “The Adventures of Superman” radio series.  One Klan member who came home to find his kids playing “Superman against the Klan” later said “they knew all our secret passwords and everything… I never felt so ridiculous in all my life.”)

Maybe it can happen to Al Qaeda too.

UPDATE:  Correction thanks to a commenter.

President Obama is reportedly considering whether to nominate Harvard law professor Elizabeth Warren to head the new Consumer Financial Protection Agency created by the new financial regulatory reform bill.  Treasury Secretary Tim Geithner is reportedly opposed, and some Senate Democrats wonder whether she could be successfully confirmed.  UT’s Sandy Levinson thinks this decision is an “acid-test” for the Administration: ” Both crass politics and the public interest make Elizabeth Warren the right person at the right time.” Megan McArdle, on the other hand, reviews some of Warren’s scholarship, and is concerned.

If this is how she evaluates data, then isn’t that going to hamper her in making good policy?  If we’re going to have a consumer financial protection agency, I want one that has a keen eye to the empirical evidence on consumer welfare–not one that makes progressives most happy by reinforcing their prior beliefs.

(More here.)  Of course, this may all be moot.  Felix Salmon thinks Warren’s nomination is inevitable.

UPDATE: Professor Bainbridge surveys the landscape and concludes that “whether Warren gets the job or not won’t matter ten years from now.”

I’ve been wondering why the Washington Post spent two years putting together the story that it rolled out this week — “Top Secret America.”  The report essentially covers the world of classified contracting, and it was delivered with the fanfare that the Post usually reserves for a Woodward exclusive or a big, deep scandal.

But the stories themselves don’t actually say much.  If Slate still ran its invaluable “Series Skipper” feature, which summarized bloated investigative journalism series, it could boil this one down to a few sentences:  We’re spending a lot of classified programs.  Contractors supply a large part of the workforce in these programs.  More oversight and better budget control are needed.  Oh, and Jeani Burns’s husband won’t talk to her about his job.

These are stories and themes that a good reporter should have been able to pull together in a few weeks, not two years, or so it seems to me.  In fact, the stories are so bland that they seem mostly to be after-the-fact justifications for the big databases about the classified contract sector that are displayed on the Post’s website.

Clearly, a lot more effort went into assembling a detailed, comprehensive listing of classified programs and contractors than went into the stories.  There’s clearly a risk to national security in making such a listing readily available; it could lead to the companies being targeted by intelligence services or even terrorists.  Still, some of that information is readily available.  Once you have a company name, basic data like the company’s location, employees, and revenue is widely available from business sources.  What’s new and what required real work was the detailed listing of companies and agencies tied to classified contracts, plus the appealing graphical interfaces.

That said, a quick look left me with doubts about the quality of both the graphics and the research.  After playing with them for a while, the visualizations seemed more like eye-candy than useful tools.  And the database is less impressive when you focus on agencies you know something about.  Is the Transportation Security Agency really doing a bunch of Top Secret border control research, as the database reports?  I’m skeptical; I had policy responsibility for TSA when I was at DHS, and TSA doesn’t really do border controls; it’s got its hands full just doing transportation security.

But if I think the Post is hyping the scope of all the Top Secret work it covers, how do I check the story?  Journalists have long complained that classified programs avoid public scrutiny.  But in this case, the Post reporters get the same benefit from government secrecy as the contractors and agencies.

So, at the end of the day, what value does that big database have for Post readers?  As the stories make clear, the database didn’t actually turn up any scandal or issue that couldn’t have been reported without the database.  And reading the database is uninformative, pretty as some of the tools are. I’m more motivated than most, and I couldn’t bring myself to spend more than an hour browsing through it.  Other than their connection to classified research, the data actually supplied about companies and agencies is strikingly thin.

If there’s no big story to write, and the database puts readers to sleep, why did the Post spend scarce resources on these things at a time when newspapers are in desperate shape?

Here’s a theory:  if the Post is looking for new sources of ad revenue, it may think that maintaining the best web resource on the classified sector of government spending will allow it to target classified-contracting companies for advertising.  It can aim advertising at them (“We can clean your SCIF cheaper than anyone else – outsource that job to our cleared maintenance workers!”).  And it can seek ads from them (“Tell Congress to preserve TSA’s crucial  Classified Border Control Research Program!”).  Plus, while there aren’t a lot of business sectors that the Post can cover better than the Wall Street Journal or the New York Times, this government-driven sector could be one.

For purposes of both coverage and advertising, then, the series may be an Washington Post exercise in market segmentation.  Which would make this series the journalistic equivalent of a dog marking its territory.

Of course, that’s not especially pleasant for the companies and agencies in the database, since they’re playing the role of hydrant.  With one difference: ordinarily a dog doesn’t expect the hydrant to buy him more water.

On Wednesday afternoon, I had a scrumptuous lunch at Grifone in New York City with James Taranto of the Wall Street Journal as he interviewed me for Saturday’s regular “Weekend Interview.” The interview, entitled, “A Commandeering of the People,” is now posted (with a link that I believe is available without subscription). The conversation lasted some two and a half hours and was loads of fun. Taranto is really sharp and several times got to my legal punch line before I did — and I was not going slowly for his benefit. For those who do not already subscribe to his daily “Best of the Web” email list, I highly recommend it. I also recommend Grifone.

Earlier this week, I noted that a Westlaw reference attorney informed me that Westlaw doesn’t correct transcription errors in its versions of old cases. (The error that I was trying to get corrected was in Thorn v. Blanchard, 5 Johns. 508 (N.Y. 1809); the Westlaw version incorrectly reported the name of the court that decided the case.) I argued in the post that this was a bad policy.

I’m pleased to report that Westlaw has made clear that what the reference attorney told me is not Westlaw’s policy:

Prof. Volokh,

Thank you for bringing the error in the Thorn decision to our attention. While West processes are designed to ensure the accuracy of opinions in its collections, Thorn reminds me that there is no substitute for an extra set of eyes (or many extra sets of eyes, as provided by your readers), in reviewing legal documents. We appreciate that you, and your readers, provided input: whenever a researcher calls an issue to our attention, we look to the source data. For older materials (and for new materials that have been modified), this can be problematic as there may be discrepancies in source data. This is particularly true with respect to older text published in variant reporters. 

Once a cover page from the print reporter was submitted, the courtline issue for the 1809 Thorn decision should have been reviewed and the decision promptly corrected by West. It has now been modified on Westlaw. Again, thank you for bringing this to our attention....

West continues to strive for 100% accuracy (every year our editors work with the courts to make more than 100,000 corrections to cases), so I take it personally when an error slips through. We truly appreciate that legal professionals care enough to bring these things to our attention.
 
David Spencer
Vice President
Legal Editorial Operations
Thomson Reuters, Legal

For more, see this post by Joe Hodnicki (Law Librarian Blog).

From today’s opinion in S.D. v. M.J.R. (N.J. Super. Ct. App. Div.), a domestic restraining order case:

The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....

[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]

Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her

this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.

After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff.... 

The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.

Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....

The appellate court reversed, writing (among other things):

Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.

As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.

The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.

The New York Times has a forum debating the institution of academic tenure. Economics blogger Megan McArdle recently criticized the institution in this blog post.

One of the interesting aspects of the tenure system is that even many of its principal beneficiaries — tenured professors — agree that it is a severely flawed institution that should be scrapped. Several academics make that case in the NYT forum, and I gave other examples here and here; although I am now tenured myself, I still think the institution’s costs outweigh its very modest benefits. The fact that these people are arguing against interest doesn’t mean they’re right. But it is at least a reason for nonacademics to take their views seriously.

Tyler Cowen makes some interesting points in defense of tenure in this post. I remain unpersuaded, however. Tyler notes that “the schools which have done away with it — the for-profits — have carved out a big niche but they have not displaced traditional non-profit, tenure-driven higher education in most fields. Few parents dream of sending their kids there.” However, for-profit universities have many other differences from traditional colleges. They compete with the latter primarily on price rather than quality. Does anyone seriously contend that the University of Phoenix would be more competitive if it adopted tenure? 

Tyler also makes the reasonable point that before we abolish tenure, we need to think carefully about what the alternative system would look like. There may not be any one system that would be best for all institutions. Competition and experimentation could lead to useful innovations. However, the basic outline of a superior alternative is well-known. As Mark Taylor describes it in the NYT forum:

It is a mistake to pose this question in all-or-nothing terms – either you have permanent tenured faculty or itinerant adjuncts. A middle ground will address most of the problems. After a trial period of three to five years, faculty members who merit promotion should be given seven-year renewable contracts. For this system to work effectively, these reviews must be rigorous and responsible. 

The standard argument for tenure is is the need to protect academic freedom. Cary Nelson, president of the American Association of University Professors, restates it in the NYT debate. I remain skeptical for reasons that I outlined here:

[T]he institution of tenure is not enough to prevent ideological discrimination in academic hiring. A faculty that wants to discriminate can still do so in entry level hiring or at the point when it is decides whether or not an assistant professor gets promoted to tenure. If the faculty or administration is intent on enforcing ideological conformity, it can usually do so quite effectively even without having the ability to fire tenured professors. If it is not, then tenure is probably not needed to protect academic freedom at that particular institution.

At most, therefore, tenure will only protect the academic freedom of professors who either 1) manage to keep their unpopular views hidden from their colleagues until after they get tenure, or 2) have a road to Damascus conversion to unpopular views after getting tenured status. Such cases are not unheard of, but they are likely to be extremely rare....

There is no way of perfectly protecting professors who convert to political views unpopular with their colleagues or make controversial remarks. However, perfect protection is probably unnecessary, because cases of firing for such reasons are likely to be rare. Moreover, universities can take steps to further reduce their likelihood. For example, they can sign professors to multiyear contracts that include provisions forbidding the school to fire the person (or refuse to renew his contract) for political or ideological reasons. Such contracts won’t be perfect; a crafty administration could fire a professor for ideological reasons while concocting a plausible cover story showing that they “really” did it for a legitimate cause. However, I doubt that universities will often do this, especially given the threat that the professor in question could sue the university for breach of contract and create adverse publicity for it. 

The institution of tenure gives us a possible slight increase in academic freedom at a huge cost. In the NYT debate, economist Richard Vedder points out that tenure may lead to a net reduction in intellectual diversity:

While tenure has undoubtedly protected some good people from losing their jobs, it actually may on balance reduce intellectual diversity. Many ideologically driven tenured professors use their job security to aggressively thwart efforts to increase alternative viewpoints being taught.....

The fact is that tenured faculty members often use their power to stifle innovation and change. 

UPDATE: I have revised this post to fix the flawed link to my 2007 post on why tenure isn’t needed to protect academic freedom.

I’ve uploaded Shri Ganpati Panchayatan Sansthan Trust v. Union of India; many thanks to Vicki Steiner of the UCLA Law Library for tracking it down for me.