The Volokh Conspiracy

I got tired of hauling so many books around on plane flights, and decided to try downloading some Kindle books to my Ipod Touch.  I don’t yet have a Kindle, although apparently if I am very, very good ...  I know that Glenn Reynolds prefers the Ipod to read Kindle over the Kindle, but then he is a Known Geek.  However, I downloaded Nick Hornby’s Juliet, Naked for Kindle, and have been reading it more than I should on the Ipod.  Including late at night in bed, and my wife informs me she likes not having a reading light on and I should do all my late night reading this way.  At least when reading Hornby — many quick, humorous asides and cuts, light and easily picked up and put down — the small screen is okay.  However, reading on planes is one thing, but I’ve been sitting on the porch taking in the sun and reading on my Ipod.  Sublime ahead of the curveness or terminal geekiness?

Any thoughts on what the rule should be here? My sense is that numbers written using digits are much easier to quickly absorb, so I tend to write them that way whenever they refer to something that people might want to use in calculations or comparisons. I’d say, for instance, that “These books tend to sell for 20% below their list price of $8 to $10,” rather than “These books tend to sell for twenty percent below their list price of eight to ten dollars.” But when counting people or things in contexts where the count likely doesn’t need to be grasped as a number suitable for calculation or comparison, I spell out the number, for instance in “There are eight reasons why this law is a bad idea.” And I of course also spell out numbers when there’s no conventional numerical equivalent, for instance in phrases such as “millions of people.” The line is not always clear, and there are probably situations where I’d be on the fence about this; but that doesn’t trouble me much, just as it doesn’t trouble me that I’d sometimes use one synonym and others time another, based just on rules of thumb about what tends to sound better to me.

But I’ve found that many journal editors suggest that many of these numbers be spelled out, for instance in the “twenty percent below their list price to eight to ten dollars” context. My sense is that some common rules are to spell out numbers that are under 100, or spell out numbers that are unhyphenated single words, or some such, though I can’t vouch for what the most popular standard is at various journals.

I wonder what people think about this: Is there some clear merit in spelling out all small numbers, including percentages and prices and other things that one might want to calculate or compute with? Is it especially necessary to have a sharp rule that distinguishes numbers by their size rather than by their likely use (and, if so, shouldn’t the sharp rule at least sharply exclude things like prices and percentages)? I’d love to hear what people think.

By the way, I should note that none of this strikes me as a matter of “grammar” or “correctness” under any linguistic standard; the question is what looks better, and therefore what authors should do, and what publications should prefer.

Last week, former OLC deputy John Yoo argued in the WSJ that the decision to try Khalid Sheikh Mohammed in New York was a major mistake.

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

On Friday, two other former Bush Administration Justice Department officials, former Deputy Attorney General James Comey and former OLC head Jack Goldsmith, took a decidedly different tack in the Washington Post.

Reasonable minds can disagree about Attorney General Eric Holder’s decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials. . . .

Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom. . . .

You ask people hard questions. Then they kill you.

Tags: Socratic Method

This week’s National Journal poll of political bloggers started off by asking them to rank the importance of various media that the political blogger himself uses to stay informed. On both the Right and the Left, “websites/blogs” came in first. However, on the Left, daily print newspapers were second, while on the Right, they were fifth. Print magazines were third on the Left, and last on the Right. For me, the web comes first, and print newspapers (Wall St. Journal, NY Times, Denver Post, and Boulder Daily Camera) are second.

The next question was to give a grade to White House Press Secretary Robert Gibbs. The Left gave him a B-, while the Right voted for D+. I gave him a B, and explained, “He’s said some silly things, but some missteps are inevitable when one talks to the media that much. Overall, he comes across as a likable guy. The failed policies he has to defend aren’t his fault.”

The final question was “Do think it’s a good idea for struggling newspapers to become nonprofits in order to receive tax breaks?” Sixty-nine percent of the Right, but only 16 percent of the Left liked the idea. I thought it was a fine idea, as long as a particular newspaper meets the legal standards to be a non-profit: “Why not? The country is better off with daily print newspapers than without them.”

Tags: Robert Gibbs

Thank you for the chance to post here over the past week. Given how much work it is I don’t know how the regular conspirators have time to do anything else. I have now sifted through the 200 or so comments my posts have generated and thought it might be worth responding to them as best I can in this limited space. Responses to about half of the comments, particularly those related to public attitudes toward specific issues and concerns about question wording or levels of public knowledge and coherent thinking about these issues, can be found in Public Opinion and Constitutional Controversy. But in this post I will deal with the meta question that several of you have raised: What’s the point of studying public opinion on these topics?

I get this a lot. The short answer is I find the study of public attitudes on constitutional questions to be interesting, regardless of its relevance or instrumental benefits. As one who spends most working hours with elites who spend an unnatural amount of time thinking about these questions and doing so in a particular way, I find public opinion surveys a useful way to get a more representative assessment about how different people think about topics that I find interesting. Beyond that, I also think this type of research joins three debates that constitutional scholars have been having for some time.

The first concerns the countermajoritarian difficulty and the justifications offered for judicial intervention to overturn policy supported by the political branches or the mass public. To understand the magnitude of that difficulty, if it is one, it is helpful to understand when the courts are out of step with the public. Analysis of public opinion surveys can constitute an important step in that direction.

This relates to the second debate, the one concerning popular constitutionalism, which seems all the rage these days. There are those, such as Barry Friedman in his new book, who make the argument that the Court often follows or responds to public opinion on constitutional questions. To evaluate that argument one needs to have some sense as to what the public actually thinks about these questions –to the extent the public has attitudes that can be discerned and measured (which will vary considerably according to the issue domain). Moreover, for those popular constitutionalists that make a normative argument about how the task of constitutional interpretation should not be the exclusive province of courts, popular conceptions of constitutional meaning ought to be relevant (even if far from determinative) to that pluralistic view of constitutional meaning. If one is going to make an argument about how “The People Themselves” should play a dominant role in determining constitutional meaning, then finding out what the people themselves think about these issues would seem to be important.

Finally, systematic, over-time analysis of public attitudes on constitutional issues sheds light on the impact of events, such as court decisions, on shifts in public thinking on these issues. This bears on the arguments that scholars such as Gerald Rosenberg and Michael Klarman have been making about the utility (or futility) of courts as engineers of social change. The truth is, as our book makes clear, very complicated. In the vast majority of contexts, court decisions are not salient or too complicated, or the public already holds strong views on an issue, so a court decision has no effect on mass attitudes. In a few contexts, however, the public, either in the aggregate or as identifiable subgroups, does shift in its beliefs. In different contexts, courts have sometimes led the public (“legitimation”), sometimes produced a backlash, and sometimes polarized the public on an issue even if no aggregate shift in attitudes can be discerned.

When we say that court decisions lead to a change in attitudes, though, we are not suggesting that court decisions themselves cause such changes. Court decisions, we argue, are events like any other that elevate issues onto the national agenda. They “tee up” the issue for elite discussion. The nature of the subsequent shift in attitudes following a court decision will depend on the volume and character of the signals that elites (broadly defined as anyone who can communicate opinions to a mass audience) then send to the mass public. It will also depend on the salience of the issue and the solidity of preexisting attitudes among the mass public. In short, for a court decision to have an effect, some share of the public must be paying attention and must be movable in its attitudes. That dynamic is present for only a small but very interesting category of constitutional questions.

Thank you again for reading my posts over the past week. I look forward to more such virtual conversations in the near future.

Glenn Beck likes Muse.  He’ s hardly alone, given the award-winning British Altrock band’s growing popularity in the U.S.  While most other Muse fans may be drawn in by the music, Beck likes the lyrics.  “These guys are brilliant, they know the time that we live in,” he said during a September broadcast. “All of the lyrics are... dead on, on what’s coming our way.”   After Beck praised the band and read their lyrics on his radio show, a Muse representative contacted the program seeking a retraction — or so Beck said.  The Telegraph reports it was all a joke.  In any event, looking at the lyrics from the band’s hit single, “Uprising,” it’s easy to see what Beck likes.

The paranoia is in bloom,
The PR transmissions will resume,
They’ll try to push drugs to keep us all dumbed down,
And hope that we will never see the truth around,
So come on!

Another promise, another seed,
Another packaged lie to keep us trapped in greed,
With all the green belts wrapped around our minds,
And endless red tape to keep the truth confined,
So come on!

They will not force us,
They will stop degrading us,
They will not control us,
And we will be victorious!
So come on!

Here are the full lyrics, the video, and a live performance. [UPDATE: That live clip is no longer available on youTube, so here are two more: 1, 2.]  And here are the lyrics to “United States of Eurasia,” another tune that apparently caught Beck’s fancy.

Longtime readers may recall that I was initially positive about Sarah Palin because her record was much more libertarian than that of most other major national politicians. Later, I had to reassess my view of Palin, as her ignorance of many important policy issues became apparent. But I also emphasized that ignorance is not the same thing as stupidity, and that in my view Palin suffers from the former, not the latter — a conclusion also reached by liberal Washington Post columnist Eugene Robinson. I do a lot of research on political ignorance, and the distinction between ignorance and stupidity is one that I have often urged people to keep in mind. For reasons that I discuss here and here, even professional politicians often find it rational to devote their time to activities other than learning about major national issues.

Still, an ignorant but intelligent person is capable of remedying her ignorance to a greater extent than one who is both ignorant and stupid. In reading Palin’s recent memoir, Going Rogue, I wanted to see if there was any evidence that she has taken steps to address what many people see as her biggest weakness — myself included. Unfortunately, it’s difficult to say either way. As a sympathetic WSJ reviewer points out, the book devotes little attention to national policy issues. Palin does come across as knowledgeable about Alaska state issues, but her facility in that area was never seriously in question. 

The book argues at length that the various gaffes that revealed Palin’s ignorance during the 2008 campaign were mostly the fault of McCain’s consultants and a biased media. I remain unpersuaded. Yes, many people in the media were biased against Palin, and perhaps the consultants made mistakes (it’s hard for me to assess that claim without knowing more about the consultants’ side of the story). Even so, there is no excuse for Palin’s inability to give competent answers to relatively simple questions about such things as which newspapers and magazines she read, which Supreme Court decisions she disagrees with, or describing the basics of her position on US policy towards Russia. If Katie Couric really was out to get Palin, as the book suggests, she could surely have asked tougher questions than these. In any event, a candidate facing a biased media should be all the more careful to avoid obvious mistakes. 

More proof is needed before we can conclude that Palin has achieved the level of proficiency with national policy issues that can reasonably be expected from a president of the United States. To say this is not to suggest that Palin is stupid or contemptible. To the contrary, I think that she is a charismatic and capable politician, and no less intelligent than most other political leaders. Her meteoric rise from obscurity to governor of a state is certainly impressive. I just don’t believe that Palin has proven herself to be qualified for the job of president of the United States, or for being within a heartbeat away from that position. More importantly, the Republican Party should be able to do better than nominate a person lacking in basic relevant knowledge. I don’t think it’s too much to expect the party to find a presidential candidate who is simultaneously charismatic, committed to free markets and limited government, and knowledgeable enough to understand the basics of major national policy issues. If the Republicans really can’t find a single viable candidate who meets all three of these requirements, then they have a serious problem that goes far beyond the shortcomings of one Sarah Palin.

Tags: Sarah Palin

In a recent post, Orin expresses doubts about whether the “traditional” form of the Socratic method is still used in many law schools. If by “traditional form” he means something like what is portrayed in The Paper Chase, I agree that not many use it. Very few lawprofs are as obnoxious as the mythical Professor Kingsfield. But, in my experience of teaching at three different US law schools over the last six years, a large number of professors do still use the Socratic Method in the sense of spending the bulk of their class time cold-calling on students and asking them questions about legal doctrine. A recent report on The Faculty Lounge blog states that most entry-level candidates on the lawprof job market say that they intend to use “soft Socratic” method as their primary teaching tool, by which they mean that they “like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared.” To the extent that it still involves large amounts of cold-calling (as in most cases it does), “soft” Socratic method has many of the same shortcomings as the “hard” version. I discuss some of those problems here and here.

I don’t claim that all law professors should completely abjure all aspects of SM; I use some elements of it myself. For example, I have students sign up to be “on call” a couple times during the semester, when I assign myself the right to call on them involuntarily. But I only devote a minority of the class time to this activity, and don’t use SM at all in classes with fewer than 30 or 35 people. The optimal level of SM probably varies from class to class and teacher to teacher. However, I do think that the method is still overused by many professors and that, overall, we would do well move to closer to the teaching methods used by social science and humanities professors in the US and law professors abroad. 

Tags: Socratic Method

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question ““PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

In a post below, Ilya writes:

The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else.

Just as an aside, I wonder, how common is the traditional form of the Socratic Method in law schools? My sense is that the “traditional law school reliance on the Socratic Method” has always been a bit of a myth, fueled in part by the movie The Paper Chase, and that law professors have long used a wide range of different approaches in class. See, e.g., O. Kerr, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. 113 (1999). Further, my sense is that in the two decades or so, the “pure” form of the Socratic Method has become rare: The majority of professors today use a combination of lecture, questioning students, powerpoints, group discussion, and the like. 

There are exceptions, of course. The Socratic Method remains widely used at some law schools (the University of Chicago comes to mind). And most professors use some aspects of the Socratic Method, such as calling on students and asking them questions about the reasoning of the cases they have read. But my sense is that what we think of as the traditional Socratic Method was never quite as dominant as is often supposed, and that practices in law schools today vary quite widely. That’s my sense, at least.

The New York Times reports on the hack and disclosure of e-mails from the University of East Anglia Climate Research Unit.

The e-mails, attributed to prominent American and British climate researchers, include discussions of scientific data and whether it should be released, exchanges about how best to combat the arguments of skeptics, and casual comments — in some cases derisive — about specific people known for their skeptical views. Drafts of scientific papers and a photo collage that portrays climate skeptics on an ice floe were also among the hacked data, some of which dates back 13 years. . . .

In several e-mail exchanges, Kevin Trenberth, a climatologist at the National Center for Atmospheric Research, and other scientists discussed whether a string of recent years of relatively stable temperatures undermined scientific models that predict long-term warming.

“The fact is that we can’t account for the lack of warming at the moment and it is a travesty that we can’t,” Dr. Trenberth wrote.

Other scientists went on to rebut him, saying that the fluctuations were not inconsistent with a continuing warming trend.

Dr. Trenberth said Friday that he was appalled at the release of the e-mails, which he said were private discussions. . . . .

At first, said Dr. Michaels, the climatologist who has faulted some of the science undergirding the global warming consensus, his instinct was to ignore the correspondence as “just the way scientists talk.”

But on Friday, he said, after reading more deeply, he felt that some exchanges reflected a concerted effort to block the release of data for independent review.

Bishop Hill summarizes lots of the e-mail contents here.

One of the standard defenses of the Socratic method, which I criticized in my last post and here, is adherence to tradition. If American lawprofs have been using the method for decades, there must be something to it. Who are we to question the approach that worked so well for Professor Kingsfield?

I am generally skeptical of the “Burkean conservative” case for traditionalism. But I do recognize that voluntarily adopted (as opposed to coercively imposed) traditions have some value and may be entitled to a measure of deference. Perhaps the Socratic method is an example of this kind of tradition. No one forced lawprofs to use it, and law students could potentially have chosen to attend schools that don’t use it — a preference they might have imposed on lawprofs through market pressure. On other hand, the AALS [update: should have said ABA] certification cartel diminishes competition in the market for legal education and makes it much harder for new schools to enter the field and gain a competitive edge by emphasizing novel teaching methods.

In any event, the tradition-based argument for the Socratic method fails even on its own terms. It ignores the fact that virtually every academic discipline other than law has a long tradition of not using the Socratic method. That includes professors who teach courses on legal issues in political science, economics, history, and philosophy departments. Similarly, the Socratic method isn’t generally used by law professors in other countries, including other Anglophone common law jurisdictions such as Britain, Canada, and Australia. There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties. Relative to the traditions of most of the academic world, the widespread use of the Socratic method in American legal academia is an outlier. That doesn’t by itself prove that the Socratic method is wrong. But it does suggest that it can’t be justified merely on the basis of tradition.

Tags: Socratic Method

By nature, I am a highly verbal, nonvisual person. I learn best by reading books or listening to lectures. I rarely benefit from looking at tables, charts, pictures, and the like. I’m the kind of guy who can’t drive to an unfamiliar destination without a detailed mapquest itinerary telling me exactly which turns to take; otherwise, I’m sure to get lost. This learning style is hardly unusual for a law professor, or indeed for most humanities and social science academics (with the exception of those who regularly use quantitative methods in their work). Unfortunately, when teaching, we lawprofs often assume that all the students have the same learning style as we do. Most of the time, we operate either in pure lecture mode or use the Socratic method. Yet at least some of the students are not like us. They may be visual learners, or otherwise diverge from the pure oral learning style. For visual learners, it helps to have handouts, tables, graphs and other tools that go beyond oral lecturing. Yet, in my experience, many law professors either don’t use these at all, or only do so very rarely. 

The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else. Not only is SM a purely oral method of teaching, it is a particularly difficult one for non-oral learners to follow. Even for the orally gifted, it is often hard to pick out the really important information from the morass of indeterminate questions posed by the instructor and often flawed answers given by the student in the hot seat. 

Fortunately, there are many possible solutions to this problem, not all of which involve giving up the Socratic method entirely. For example, professors can use SM during only part of the class, and use handouts, tables, power point or other visual displays during other parts. I find that the simple practice of summarizing the key points about a case or article at the end of the class discussion of it also helps students who might otherwise be lost catch up. I also use handouts with tables and draw on the board more than most law professors do, though probably not as much as I should. There are many different ways to skin this particular cat, and mine aren’t the best for every professor. But the beginning of wisdom is to at least recognize that there is a problem. Fortunately, many lawprofs have begun to move away from SM in recent years, and some have also begun to make greater use of visual materials.

Of course all of this proceeds on the perhaps naive assumption that the goal of class is to convey the subject matter to the students, and get them to understand it as well as possible. I know that SM and other purely oral teaching methods are sometimes defended on the very different ground that they teach students to “think like a lawyer.” I addressed these arguments here and here. In brief, I don’t believe that legal reasoning is fundamentally different from other types of logical reasoning; I don’t think that SM is a particularly good way to teach legal reasoning, relative; and I believe that the primary objective of law school subject matter classes should be to teach the specific subject at hand rather than general legal skills such as trial advocacy, which are better conveyed in specialized courses taught by experts or in extracurricular activities such as clinics.

At bottom, I don’t want to teach my students to “think like a lawyer.” I’m not even convinced that any such thing exists. Instead, I want them to be able to think in an informed, rigorous way about the subject I’m teaching. That is the best contribution a subject matter expert like me can make to their legal education. Achieving that goal requires paying attention to different learning styles in order to ensure that as many people as possible come away from my classes with a genuine understanding of the material we covered. 

Tags: Socratic Method

Missouri v. Richard was decided earlier this week by the Missouri Supreme Court, solely on the basis of the Missouri Constitution. Missouri law, Section 571.030.1(5) punishes someone who “Possesses or discharges a firearm or projectile weapon while intoxicated.”

Richard did in fact possess a loaded handgun while intoxicated (eventually to the point of unconsciousness) by morphine and amitripyline. He threatened to kill himself with the handgun, and told his wife that if she called the police, he would make the police shoot him.

Richard argued that the statute was overbroad. The Missouri Supreme Court retorted that overbreadth can only be raised in a First Amendment context. (However, some other state courts have applied overbreadth to state constitution arms rights protections. See State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).)

In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to “actual or physical control.” So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.

The Missouri law, by the way, has an explicit exception for self-defense, and there was no claim in the Richard case that the defendant’s gun possession was for self-defense.

A concurring opinion by Judge Fischer says that the Second Amendment is incorporated via the Due Process clause, and that the Missouri statute does not violate the Second Amendment.

Tags: Missouri v. Richard

One of the many interesting issues raised by the decision to try Khalid Sheikh Mohammed and other terrorist suspects in New York is whether transferring them to New York gives them any additional rights that they could assert to try to stop the prosecution against them. On Wednesday, the seven GOP Senators on the Judiciary Committee (including my former boss, Senator Cornyn) sent a letter asking the Administration if the transfer could somehow change the detainees’ immigration status. And others may be wondering if the transfer could create constitutional rights, such as Fourth Amendment, Fifth Amendment, or Due Process rights. The question is, does the transfer from one place to another itself create any rights?

The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As for whether they picked up any other rights in the transfer, it seems kind of hard to answer because we still don’t know what rights they had while at Gitmo. With habeas jurisdiction established, courts were just beginning to get to the question of what rights the detainees actually had; without knowing that, it’s not clear how much the transfer could add. 

More broadly, I tend to think that the rights question won’t matter so much in the end. The Obama Administration presumably agreed to transfer these guys because they were sure they would be convicted either way. I take that to be the gist of Obama’s response to the idea that it is offensive for KSM to get lots of rights in a criminal trial: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” 

Someone hacked into the computers at the University of East Anglia Climate Research Unit, downloaded various files and e-mails posted on the web.  Now the climate blogosphere is all atwitter over whether the resulting disclosures are a scandal or much ado about nothing.  Excerpts and reactions from Roger Pielke Jr., Real Climate, Climate Audit, Watts Up With That, James Delingpole, and Island of Doubt.

(coauthored with Stephen Ansolabehere and crossposted)

Upon the initiative of my colleague Jamal Greene who has been writing about the popularity of originalism, our July survey included several questions concerning judicial methodology. As cautious as we might be generally about measuring opinion on constitutional questions, our concerns about question wording, issue complexity, and non-salience are heightened in this context. Nevertheless, recognizing those limitations, we sought to examine attitudes on several questions concerning interpretive methodology that other polling firms and scholars have asked, as well as some new ones, such as the appropriateness of empathy in Supreme Court decisionmaking.

We began with the following question that has been asked by the Quinnipiac poll for the last six years:

Which comes closer to your point of view?
1) In making decisions, the Supreme Court should only consider the original intentions of the authors of the Constitution.
2) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution.

To be sure, the question framing is unfair to the originalist position, presents a false dichotomy, and has a host of other problems. Nevertheless, the results have been remarkably consistent, the split shows that there is not lopsided support for either option even given the phrasing, and very few people refuse to express an opinion on the question. On average, 42% identify with the “original intentions” option, 51% identify with the “current realities” option, and only 8 percent “don’t know.” (Since 2003, the share supporting the “original intentions” option has ranged from 39% to 44%. Our survey from July found 40% supporting that option.)

Our survey decided to delve further and asked a battery of questions developed by Jim Gibson at Wash. U., and added a question about “empathy” as well, given its salience to the Sotomayor nomination.

The survey asked: “How important would you say it is for a good Supreme Court judge to…..”

The numbers following each response correspond to the share who say Very important, Somewhat important, Not very important and Not important at all

Strictly follow the law no matter what people in the country may want? 39 42 14 4
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
Respect the will of the majority of people in the U.S.? 34 40 17 9
Stay entirely independent of the President and Congress? 57 31 8 3
Follow his or her conscience or sense of morality? 31 43 15 9
Respect existing Supreme Court decisions by changing the law as little as possible? 30 47 16 5
Uphold the values of those who wrote our constitution two hundred years ago? 53 37 7 2

Apologies again for the my inability to figure out how to insert a table.  As seen in this battery, which does not force respondents to choose among them, every option finds majority support deeming that criterion to be “very” or “somewhat important.” The response patterns range from 90 percent who consider it very (53%) or somewhat (37%) important to “uphold the values of those who wrote our constitution two hundred years ago,” to 58 percent who consider it very (17%) or somewhat (41%) important for a judge “to feel empathy for the people involved in a case.” The only options that a majority considers very important are “stay entirely independent of the President and Congress” (57%), which is no surprise given the relatively low ratings the political branches, rather than the courts, tend to receive from the mass public; “uphold the values of those who wrote our constitution” (53%); and “protect people without power from people and groups with power” (52%), which surprised me a bit given the patterns on the other options.

We are just beginning to delve into the more interesting and important questions as to who identifies with which option – that is, what demographic characteristics and responses to other questions in the survey are associated with attitudes toward interpretive methodology. Here is one finding that seems particularly robust: even when controlling for all the usual demographic characteristics and a range of measures for political conservatism, moral traditionalism, libertarianism, religiosity etc., attitudes toward Roe v. Wade and attitudes toward federal recognition of same sex marriages where it is legal are powerful predictors of the choice of “original intentions” in the Quinnipiac question.

An online debate at the Federalist Society site — a fascinating subject, and two first-rate debaters. Check it out; here’s the summary (paragraph breaks added):

Under the statute authorizing the Troubled Assets Relief Program, Congress authorized the Secretary of the Treasury to “require each TARP recipient to meet appropriate standards for executive compensation.” By emergency rule promulgated without notice and comment, Secretary Geithner created the position of “Special Master for Compensation” or Pay Czar, and named Kenneth Feinberg to this position. In late October, Mr. Feinberg cut compensation for executives at seven large financial firms. 

In an op-ed in the Wall Street Journal, Michael McConnell, the Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center, argues that Mr. Feinberg’s actions are unconstitutional because powers of the type entrusted to Mr. Feinberg may only be exercised by an officer of the United States, appointed in a manner consistent with the requirements of Article II, section 2, clause 2 of the Constitution. This provision stipulates that all “Officers of the United States” shall be appointed by the President “by and with the Advice and Consent of the Senate,” with the exception that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 

This forum will discuss the arguments put forth in Professor McConnell’s op-ed regarding the Pay Czar and the Appointments Clause. We have excerpted the key paragraphs of the ep-ed in the first post below.

According to the New York Daily News and other news sources, the National D-Day Memorial has added a bust of Stalin to its line-up of allied leaders. This has understandably caused a great deal of controversy. The defense is most elaborately discussed here.

Here’s my thinking on the matter: Sculptures at memorials have two different functions — one is to illustrate history, and the other is to honor the subject. In the absence of any specific indication to the contrary, I suspect that people understand a bust at a memorial, especially one placed alongside that of honored leaders (Roosevelt and Churchill), as fulfilling both functions. And this is true even if the sculpture tries to “embody the terror he instilled”; it’s always hard to convey condemnation of the subject in the sculpture itself, especially given the backdrop assumption of honor that I mentioned. And if the photo in the Daily News article represents the bust (I’m not sure whether it does), I don’t see much embodiment of terror there.

If that’s just how it’s displayed, that strikes me as very bad, because for obvious reasons Stalin does not deserve honor. He was a monster, not just by the standards of our time, but by the standards of his. The Soviet Union’s tenacity in fighting the Nazis — after Stalin had earlier helped the Nazis, both by allying himself with them and by earlier weakening the Soviet military with the purges — was indubitably critical in winning the war. Stalin might well have been important in ultimately contributing to that tenacity. But that important success doesn’t undo his horrific atrocities.

At the same time, nothing says that the bust inevitably honors the subject. There are such things as captions, which could be placed prominently on the sculpture, and the captions can easily put things in proper perspective. An explanation of Stalin’s crimes, and the aid that Stalin either deliberately or inadvertently gave Hitler, coupled with an explanation of the immense significance of the Soviet Union’s contribution to winning the War, and whatever credit historians say Stalin deserves for that, would sufficiently make clear that Stalin is not the moral peer of his neighbors Roosevelt and Churchill. (Of course, Soviet troops weren’t present at D-Day, but D-Day would have been at least very different, and likely impossible, if the Soviets hadn’t successfully engaged much of the Nazi army on the Eastern Front.)

It’s not clear to me whether such a caption is present. If it is not, then the memorial organizers should be severely faulted, for placing in a position of conventional honor someone who deserves hatred and contempt. But the solution would be to simply add the caption, I think, and not to remove the bust.

according to Bloomberg.  Not terribly surprising for the “ground zero of the housing bubble,” and launchplace of Condoflip.com.

No Social Security or Medicare tax for a year. Raise the retirement age by one year starting in 2014. Pure fiscal stimulus, no additional long-term debt.

I recently discovered the “Night Lights” Classic Jazz Radio Program, an hour-long weekly jazz program produced by Indiana University’s public radio station. It’s marvelous, and there are five years’ worth of archives available on the web that you can listen to at any time.

Each program focuses on a particular artist, particular period, and/or particular style, combining some context and discussion with a selection of some of the best recordings. I just finished listening to the January 2007 broadcast on the excellent but obscure tenor saxophonist J.R. Monterose, as well as the August 2009 broadcast on the Claude Thornhill Band. Both were excellent. If you’re interested in learning more about jazz, or you want to hear more about a particular jazz musician or style, the program is well worth checking out.

About 600 or so.

I am pleased to announce that the Justice Department will be moving to dismiss its appeal in the Lori Drew case. The motion apparently will be filed today or tomorrow, and it will bring the Drew case to a close. 

I am a fan of Goldman Sachs.  It is one of the few individual stocks I own, running against all my standard corporate finance professor ‘buy index funds!!’ instincts.  Although we have had a surfeit of bankers and a surfeit of talent in financial engineering rather than, say, robotics, it is very scary to see the “silver linings” analyses talking about how it is such a good thing that smart Harvard or MIT students will no longer go to Wall Street, but will instead enrich elementary education or nursing or mountain-guiding.  While they might not be efficiently deployed in finance, it is a mistake to rejoice that the credit crash, deficit, tax rates, and other disincentives to innovation through risk-taking will push, through sheer lack of opportunity, smart people into things that do not take full advantage of their talents to the ultimate benefit of everyone.  I do a lot of development finance in the developing world, and the misallocation of talent simply from inability to supply opportunity is heartbreaking and worse.

The work of allocating capital in the capital markets, if not precisely God’s work, is so crucially important to men and women on earth that there is something wrong with these days having to defend it.  The little pieces of paper are vastly more efficient to steering rivers and seas of capital to and among enterprises — little gates and sluices in which small movements on paper can create immense movements in real life — than trying to do it by, what exactly?  Physical occupation of the premises as the sign of ownership?  Holding of hostages as collateral for a loan?  So I am untroubled by Goldman bankers getting rich, provided that their services serve efficient allocation; the problem is rules of a game that reward many wrong things and turn investment banking into a combination of crony capitalism and moral hazard.  Goldman’s current bonus pool is in large part a transfer, via yet more subsidized risk, from taxpayers to the firm; I trust in God and Blankfein that a goodly share of the booty will eventually wend to we shareholders.  But booty it is.

The problem here is not, and never has been, finding yet another little political fix to stick on top of the existing set of mis-allocation rules.  A “political offensiveness” tax, perhaps, under the socialist-sounding name of ‘excess profits’ or the capitalist-sounding name of ‘clawback’?  It’s neither, or both, of course.  The fixes-on-fixes eventually become flow-throughs to politicians like Chris Dodd; they permanently shift capital allocation into political allocation; and above all they don’t efficiently allocate capital.  Unless of course you’re Senator Dodd.  The answer has to lie at creating level playing fields at the base level, so that risk and return correlate for private parties, and they don’t have to apologize to anyone for the risks or the returns or the losses.

This is why Goldman Sachs’s cynical and tone-deaf small business program should serve as a wake up call for what business our capital allocators seem to think they are in.  At $500 million, the amount is paltry — 2.5% of the Goldman compensation pool or that ballpark.  And it does not even go to small business as such.  As the Wall Street Journal reports this morning (Deals and Deal Makers, Mike Specter, C5, November 19, 2009, I’ll post a link later), none of the small businesses emailing and telephoning in desperation for financing will “receive a check from Goldman Sachs.”  Instead:

“Goldman will spend $200 million on education and training programs, while funneling $300 million to so-called community-development financial institutions which largely serve historically disadvantaged communities that have had trouble accessing capital.“

One does not have to be a populist of the right or left to sniff that this is a ham-fisted PR program backed by miniscule funding.  Nor is this simply (as the quite interesting FT feature today on Goldman suggested) an ordinary case of Goldman corporate charity, of which it traditionally has done a great deal.  If it were, it would be much less problematic.

The much more important point is not what charity means — it is what high level business and finance have come to mean, when Goldman Sachs urgently decides that it needs to ”give back“ a sliver of what the taxpayers gave by giving it to ... community organizing.  It’s not corporate charity; it is protection money, clumsily done because unlike, say, Fannie and Freddie, Goldman is not used to doing it.  The message is that the future of the economy lies in crony capitalism and tending to the government relationships that happen, in this administration, to be community development institutions.  Even if the GSEs, Fannie and Freddie, showed what a splendid business model could be had tending to the care and feeding of Congress, its embrace by supposedly non-GSE Goldman Sachs shows us the way.  Apparently it will be a very efficient political capital market indeed.

(PS.  Note to journalists ... might any of the community-development institutions turn out to have ACORN ties?  I have zero idea whether this might be so.  Given the long-standing relationship of ACORN to the banking world via precisely these kinds of institutions, however, one should at least wonder.  And I at least would be curious to know whether Goldman thought vetting for this was a consideration.  Would Goldman consider this a bug or a feature in dealing with the current powers that be?)

From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16):

For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the number of firearms purchases that had occurred in the first quarter of 2009. The patient complained about the conversation, and Linda Nestor, Director of the Radiology Department, contacted the patient on May 19 to investigate. The patient said that Griffin had made remarks about President Obama and had reported that he was stocking up on food and weapons. Nestor did not ask Griffin to provide his side of the story, concluding that she did not need to investigate further because Griffin had made inappropriate comments in the past.

Griffin was fired by the (private) hospital “for making inappropriate remarks to a patient about guns and politics,” and was then denied unemployment compensation by the government agency in charge of unemployment claims because he “was terminated for misconduct.”

Now it’s clear that Griffin’s firing doesn’t violate the First Amendment, because the hospital is a private entity, and thus not bound by the First (or Fourteenth) Amendment. But in a long and well-known line of cases, the Supreme Court held that when an employee is fired because he refuses to do something (e.g., work Saturdays) because of his religious beliefs, a denial of unemployment compensation on the grounds that the firing was “for misconduct” (there, insubordination) presumptively violates the Free Exercise Clause. I think this logic is dicey, but the Court has accepted.

I’ve often wondered whether the same logic would also apply to firings for speech, the subject of a parallel clause of the First Amendment. And in Griffin, the magistrate’s report says “yes”:

Griffin’s claim resembles those arising under the Free Exercise Clause of the First Amendment, involving employees terminated for religious practices conflicting with a private employer’s policy but not otherwise barred by law, who have successfully challenged administrative rulings or state laws denying them unemployment benefits. See, e.g., Hobbie v. Unemp. App. Com’n, 480 U.S. 136, 140–41 (1987) (denying unemployment benefits to Seventh-Day Adventist who was fired because she was unwilling to work on Saturdays impermissibly burdens free exercise of religion); cf. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (denying unemployment benefits to employees fired for their criminal misconduct in using peyote did not violate Free Exercise clause because state law criminalizing use of peyote passed constitutional muster). The Court has characterized these cases as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., 494 U.S. at 884 (citation omitted). Lower courts have extended this line of authority to cover claims like Griffin’s asserting that the state violated the First Amendment when it determined that an employee fired for engaging in political speech at work was ineligible for unemployment benefits. See, e.g., De Grego v. Levine, 362 N.Y.S.2d 207, 208–09 (N.Y. App. Div. 1974) (First Amendment barred State from denying unemployment benefits to employee fired for wearing “Impeachment with Honor” button), aff’d on other grounds, 347 N.E.2d 611 (N.Y. 1976).

An interesting case. Note: If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner, the source of the Free Exercise Clause doctrine on which the Court relies; as applied to unemployment compensation, Sherbert survives Employment Division v. Smith’s general holding that the Free Exercise Clause isn’t violated by religion-neutral laws of general applicability.

The recent “everybody” threads reminded me of one of my favorite songs:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed

Note that I quote it just because I like it, not because I think that it by itself is evidence that’s as strong as what I’ve pointed to earlier.

Earlier today, I posted quotes from prominent authors who use “them” with formally singular terms such as “everyone.” A commenter had earlier complained that “Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers.” I pointed out that they were apparently sanctioned by leading writers as well.

A commenter suggested that perhaps the quotes given above were just isolated errors on the authors’ part: “Even great writers commit infelicities on occasion. If you are telling me that Jane [A.] did this all the time, that would be meaningful.” Feeling the desperate need to procrastinate this morning, I decided to put that theory to the test, by doing some Google Books searches through the works of the notorious language-mangler Jane A., whom I mentioned above.

I won’t bore you with all the details and citations, which you yourself can uncover by searching for “everybody” with author Jane A. (despite her obvious inability to grasp the inexorable logic of the English tongue, she’s pretty famous, so you can probably deduce her last name). But suffice it to say that I found not one “everybody” matched with a singular pronoun — maybe there were some, but in that case I missed them — and several matched with “them.” “Everybody had a right to be equally positive in their opinion.” “Everybody had their due importance.” “If everybody was to drink their bottle a day.” “Their new dining-room prepared everybody for their keeping dinner-company.” “Everybody said, they never saw so fat a haunch.” “Everybody has their taste in noises as well as in other matters.” And there are more.

Incidentally, Jane A. consistently uses everybody with the singular forms of verbs, e.g., “everybody is.” Yet she apparently sees nothing wrong with at the same time using the pronoun “they,” including in the line, “But everybody is to judge for themselves.” That’s precisely the sort of “jarring (I hope!) juxtaposition of the singular verb with the plural pronoun” that my original correspondent complained about. Maybe it’s jarring to that commenter, but many readers of P. and P. seem to have enjoyed the novel quite well despite it.

If you think that Jane A. was an outlier in consistently using “them” with “everybody,” and the other examples I gave were (unlike with Jane A.) themselves outliers in those authors’ bodies of work, then by all means provide some evidence of it. But I like to think that what I’ve posted so far at least shifts the burden of proof to those who want to argue that this phenomenon is somehow the special province of modern high-school age writers and their decadent loosey-goosey modern teachers.

UPDATE: Someone — whose need to procrastinate was apparently even greater than mine — actually has a much longer list of examples, all from Jane A.‘s work. The page also discusses the quotations vs. narration question, and more broadly goes into this in a great deal of detail; the detail, I think, amply supports the assertions I make above.

A commenter writes:

The word “disrespected”, when used as, “the ho [disrespected] me”, shows [a] new use of a word, now fairly accepted, regardless of how clumsy.

I often see people talk about something being a new use of the word — whether they’re condemning the supposed new use or accepting it — but much of the time that just turns out not to be so. I realize that most people don’t have the luxury of free access to the Oxford English Dictionary, but Google Books is often a good second best. Here’s a sample of what the OED reports:

trans. The reverse of to respect; to have or show no respect, regard, or reverence for; to treat with irreverence. 

1614 WITHER Sat. to King, Juvenilia (1633) 346 Here can I smile to see..how the mean mans suit is dis-respected... 1706 HEARNE Collect. 26 Apr., He was disrespected in Oxford by several men who now speak well of him.... 1885 G. MEREDITH Diana I. 257 You will judge whether he disrespects me....

1791 PAINE Rights of Man (ed. 2) I. 101 Reflecting how wretched was the condition of a disrespected man....

Now it might well be that “disrespected,” whether as the past tense of a verb “disrespect,” or as the closely related adjective referring to someone who is disrespected, is more commonly used than before. But it’s certainly not new. And, more broadly, lots of assertions that some usage is new prove, on closer examination, to be unsound.

The Wall Street Journal reports:

Justice Anthony Kennedy got into a messy situation this month after a widely circulated report that his office made a school newspaper get permission before running an article about the justice.

It turns out the incident at New York’s Dalton School wasn’t the only such case....

In an interview with The Wall Street Journal this week, Justice Kennedy said he generally bars outside news media from covering his classroom lectures, but permits student journalists to file reports. He said he has never sought to review any report before publication, and attributed the requests to a new secretary who misunderstood his policy.

A New York Times article about the Dalton case sparked a host of critical editorials and blog posts accusing Justice Kennedy, who generally has voted against curbs on free speech, of hypocrisy....

Mr. Regis[, news director at the student radio station WRGW, involved in an earlier incident,] said he found the request ironic, because Justice Kennedy had written a 1991 Supreme Court opinion rejecting a libel claim against the New Yorker based partly on the magazine’s failure to publish verbatim quotations.

“Writers and reporters by necessity alter what people say, at the very least to eliminate grammatical and syntactical infelicities,” Justice Kennedy wrote in Masson v. New Yorker Magazine. He wrote that practical necessities such as the need “to make intelligible a speaker’s perhaps rambling comments” make it “misleading to suggest that a quotation will be reconstructed with complete accuracy.”

I don’t see why this should be messy (except if “messy” simply means “drawing some criticism, whether or not justified”), or why Justice Kennedy’s view should be seen as hypocritical, ironic, or inconsistent. Justice Kennedy has generally voted against government curbs on free speech; but it seems to me that a speaker acting as a private individual — which Justices do when they give speeches, as opposed to rendering opinions — is entitled to condition his speaking on checking the quotations to make sure they are accurate. Misquotations by reporters are commonplace, and it seems quite reasonable for a speaker to try to prevent such misquotations.

Now I have heard it said that many news organizations have policies, based on what they see as “journalistic ethics,” against agreeing to such requests. But I don’t see why Justice Kennedy should feel some obligation to further such policies.

I should note that I have the same policy for interviews I do with a particular university student newspaper that calls me on occasion. I’ve had so many bad experiences with their quotes from me being rendered in an incoherent or out-of-context way that I say that I’ll be happy to talk to them, but only if they clear with me before publication all quotes and paraphrases of me. At times they’ve said that this is against their policy, and in those cases I’ve declined to talk to them. Obviously my bargaining position is weaker with other newspapers, and I’m often more interested in talking to those other newspapers, so I can’t impose such a rule across the board (especially since there is often deadline pressure that makes such checking very difficult). But I would if I could, and I don’t see what would be “messy” about it. Am I missing some important ethical constraint here that is properly seen as binding on speakers or interviewees?

A commenter writes:

Well it could be worse. I hazard that in 50 years the sex sensitivities of the colloquial speaker will have caused the formal replacement of the generic singular pronoun (he) with the plural pronoun (they), which is safely without gender. Already constructions like these are ubiquitous among high-school age writers, and sanctioned by their teachers:

Everyone must choose their own path.

Each student selects their thesis topic.

Note in the second example the jarring (I hope!) juxtaposition of the singular verb with the plural pronoun. This is the future.

Buddy, you don’t know the half of it! Not only are high-school age writers being taught this by teachers, they are even taught this by some other writers (who must obviously be misguided hacks, given how badly they’re abusing the English language). Some examples from some of these awful people — to avoid unduly embarrassing them, we’ll call them William S., Jane A., W.H. A., Jonathan S., William Makepeace T.,

And every one to rest themselves betake

I would have everybody marry if they can do it properly

... it is too hideous for anyone in their senses to buy

Who makes you their confidant?

... every fool can do as they’re bid

A person can’t help their birth

There’s not a man I meet but doth salute me
As if I were their well-acquainted friend

(All sources are from the Merriam-Webster’s Dictionary of English Usage, where the full names of these miscreants are revealed.) [UPDATE: A more comprehensive survey of Jane A.‘s works is in the Spurious Grammatic “Rules” of Every Sort Are My Abhorrence post.]

So, commenters, is it that all these writers (whose work ranges from the late 1500s to the 1900s) and many more were wrong, and you’re right, when you say that “their” can’t be used in these contexts? Is it that you have the Logic of the Language on your side — the same logic that tolerates the singular “you are,” “aren’t I?,” “ice cream,” and much more, but that as a matter of the laws of logic balks at a singular “they”? Or is it just that you’re discussing what you find aesthetically pleasing (or even pedagogically optimal, for instance with an eye towards teaching students usage that will satisfy self-described “purists” and will thus serve them well socially)? If it’s the latter, I’ll happily end the debate. But my sense is that many people who denounce the singular “they” (including where the singular relates to nouns with a collective meaning, such as “everyone”) and similar matters are making an assertion about correctness, and not just about their own tastes or about the most useful teaching approaches.

Most discussions about the constitutionality of an individual mandate in health care reform proposals have focused on whether such a mandate could be justified under the federal government’s enumerated powers in Article I, section 8. (See, e.g., these VC posts.)  Some (including me) have opined that, under existing case law, an individual mandate would probably pass muster.  For example, under existing precedent I think it likely the Court would see an individual mandate as a necessary and proper incident of comprehensive regulation of health care markets, as a mandate is necesary to prevent other aspects of health care reform (such as a ban on refusing to cover preexisting conditions) from driving up health care markets.  (Of course, were the Court to apply the original public meaning of the relevant provisions, an individual mandate would be out of bounds.)  But in focusing on Article I, Section 8, I wonder whether we’ve ignored another potential constitutional problem with provisions of Article I, section 9.

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem.  I have not yet had a chance to look at how the mandate provisions are written in the Senate bill.  I would be curious to read what others think about whether an individual mandate imposed through the tax code could run afoul of Article I, section 9.

A commenter writes:

I’ve never liked the cyclic reasoning of the paradigm that if an otherwise incorrect use of grammar or spelling becomes widespread, it is declared to be henceforth correct.

If you want to use “they” in this context, then rephrase it as “I would like to thank the editors at Attorney.org for their kind words...” or “to thank the members of Attorney.org...” Otherwise Attorney.org is a singular noun.

The key to this argument, I think, is the notion that we can identify certain usages as “otherwise incorrect,” independently of actual usage.

This can mean one of two things, I think: First, a usage might be “otherwise incorrect” because it was until recently nonstandard, and (the argument would go) changing practice shouldn’t make “henceforth correct” something that was nonstandard until now. I find it hard to see why this makes sense. Among other things, the usage that was standard until recently might itself have departed from past usage, and become correct simply because of changing practice. So either one insists that all changes since, say, 1600 (but why 1600? Why not 1200?) are wrong, or one has to explain why we today should be stuck with the 1900 usage and not accept the 2009 usage.

Second, and I think more likely, is the premise that a usage might be otherwise incorrect because it violates certain logical rules of English grammar. Yet the trouble is that the actual rules of English grammar including many subrules that depart from the apparent “logic” of the broader rules.

Thus, for instance, “are” is generally plural — yet we say “you are” even when the “you” clearly refers to a single person. The story behind this is doubtless complex, and of course has to do with the fact that “you” is both a second-person plural and the second-person singular, and that the informal second-person singular “thou” has become nonstandard in all but a few highly specialized contexts. 

And yet whatever the story, the fact remains that the “otherwise incorrect” usage of “are” to refer to a single person — incorrect, that is, if we appeal to the simplest statement of the rule governing “are” (“are” is for plurals) — becomes correct when it is used with “you.” Or, more precisely, there is a descriptively correct general rule (“are” is used with plural nouns and not with singular nouns) that has a descriptively correct exception (“are” is also used with the second-person singular “you”). How do we know that these rules are correct? Not by appeals to logic, but precisely by reference to widespread (here, nearly universal) usage.

But, wait, there’s more: “I are” is nonstandard and therefore descriptively incorrect. “I aren’t” is, too, as are “I aren’t” and even “Are I not ...?” But “Aren’t I ...?” is indubitably fully standard, and I haven’t seen any credible usage source even claim that it is somehow incorrect. Why is it correct, even though it would be “otherwise incorrect” if we appeal to the broad logic of pronoun rules? Because it is “the will of custom, in whose power is the decision and right and standard of language.”

I could give more examples (such as this one), but I take it my point is clear without them: Lots of perfectly correct English terms and phrases are “otherwise incorrect” if one looks at some broader rules of language — but they are correct because they form exceptions from these rules (rules in the sense of regularities, not in the sense of somehow logically, legally, or morally binding laws). My tentative claim (tentative because it was based on just some casual searching) is that the “Thanks to [group] for their ...” usage is likewise an exception from the norm that a group is an “it” and not a “they.” Maybe I’m descriptively wrong on this. But if I am wrong, it’s not because the usage, even if common, is “otherwise incorrect”; that would just show it to be one of the many exceptions present in English grammar and usage.

The case is Roxbury Entertainment v. Penthouse Media Group, Inc. (C.D. Cal. Nov. 9):

It is well established that films are entitled to First Amendment protections. ... [A] Lanham Act [false or misleading designation of origin] claim asserted against the creator of an expressive work can succeed only if the “public interest in avoiding consumer confusion outweighs the public interest in free expression.” 

The [applicable Rogers v. Grimaldi] test has two prongs. The first prong requires that the defendant’s use of plaintiff’s trademark be relevant to the underlying work: “the level of relevance must merely be above zero.” If the first prong is satisfied, the Lanham Act claim is still precluded unless the use explicitly misleads consumers about the source or content of the work. 

Because Defendants’ movie is an expressive work, the Rogers test provides a complete defense to all of Plaintiff’s claims. With respect to the first prong, Defendants’ use of “Route 66″ is relevant to the underlying work. See Rock Star, 547 F.3d at 1100 (“[T]he level of relevance must merely be above zero.”). Defendants have introduced evidence demonstrating at least some relationship between the mental imagery associated with the term “Route 66,” e.g., road trips, cross-country travel, and the content of Defendants’ movie. Plaintiff’s argument that the association is tenuous does not controvert Defendants’ showing.

The second prong of Rogers requires the Court to evaluate whether Defendants’ use of “Route 66″ explicitly misleads consumers as to the source or content of the work. Mere use, without more, is insufficient to make the use explicitly misleading. As the Ninth Circuit has explained, the relevant inquiry is whether consumers would be misled about the source or sponsorship of Defendants’ movie.

This prong of the test points directly at the purpose of trademark law, namely to “avoid confusion in the marketplace by allowing a trademark owner to prevent others from duping consumers into buying a product they mistakenly believe is sponsored by the trademark owner.” The relevant question, therefore, is [“]whether the [product] would confuse [consumers].... In answering that question, we keep in mind ... that the mere use of trademark alone cannot suffice to make such use explicitly misleading.[“] Here, there is nothing to indicate that there is any risk of Defendants’ use of the mark “duping” consumers into thinking they are buying a product sponsored by, or in any way affiliated with, Plaintiff or the 1960s television series in which it owns rights.

Accordingly, summary judgment is GRANTED in favor of Defendants on all of Plaintiff’s claims because Defendants’ use of “Route 66″ in or as the title of their adult film is protected by the First Amendment.

alleged here seems to us to move [plaintiff’s] allegations into the realm of claims ‘flimsier than ‘doubtful or questionable ’ — ... ‘essentially fictitious,” not realistically distinguishable from allegations of ‘little green men’ of the sort that Justice Souter recognized in Iqbal as properly dismissed on the pleadings.” From Tooley v. Napolitano, decided yesterday by the D.C. Circuit.

It seems pretty clear that the public opinion trends concerning freedom of expression are pointing in a more libertarian direction. We can see that in responses to questions regarding flag burning, hate speech, and indecent speech. The State of the First Amendment (SOFA) Survey has been asking questions related to these issues for a decade, and the results from the survey Stephen Ansolabehere and I conducted in July (with some questions on these topics added by my colleague Jamal Greene) seem consistent with responses on those surveys.  [Please forgive some of the alignment problems in the tables below; novice blogger that I am, I cannot figure out how to make the columns line up.]

Our survey did not include a flag burning question but the issue is covered in Public Opinion and Constitutional Controversy. At the time of Texas v. Johnson (1989), between 64 and 78 percent of the population supported a constitutional amendment prohibiting flag burning, according to various polls. Most recent polls show a population either split on the issue or with a majority opposing the amendment. The 2009 SOFA survey, for example, found that 60 percent oppose an amendment.

Our survey included the same hate speech questions that the SOFA surveys have included for the past decade. Below are the questions with the results from the 2008 and  2000 SOFA survey for comparison:

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to racial groups?”

2009      SOFA 2008       SOFA 2000

Strongly agree                          20%                 24%                 15%
Mildly agree                               28%                 19%                  17%
Mildly disagree                         23%                 12%                  15%
Strongly disagree                     28%                  42% 52%

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to religious groups?

2009     SOFA 2008      SOFA 2000

Strongly agree                      25%                   32%                22%
Mildly agree                           29%                   23%                 24%
Mildly disagree                     21%                    12%                 15%
Strongly disagree                 23%                   30%                 38%

Our results are close to recent SOFA surveys in terms of total “agree” versus “disagree”, but their sample seems to show greater numbers at the extremes. The trends seems pretty clear from all available surveys on offensive speech of this character, though. A narrow majority approves allowing offensive speech against religious groups but opposes allowing such speech against racial groups. The support for allowing speech of either class has gone up considerably over the past decade.

The same could be said regarding allowing offensive speech in other contexts, such as indecency and pornography. Since 1997 the SOFA survey asked about agreement or disagreement with the statement: “Musicians should be allowed to sing songs with lyrics that others may find offensive.”

1997     2008

Strongly agree                                              23%      42%
Mildly agree                                                   28%      23%
Mildly disagree                                             16%         9%

However, our survey found a relatively even split on a different question, which may have more to do with people’s attitudes toward television stations than free speech more generally:

“Do you think that the government ought to be able to fine a television network or station if it broadcasts a live interview or live performance where a person uses certain foul language or dirty words?” Yes 46%  No 53%

For what it is worth, a 2005 Time poll found that only 28% thought that the government should fine CBS for Janet Jackson’s nudity during the Super Bowl halftime show.  The General Social Survey also has also shown for some time that most Americans would not favor laws prohibiting  sale of pornography to adults, with a slight shift in a more libertarian direction in the last decade.

The GSS asks: “Which of these statements comes closest to your feelings about pornography laws? There should be laws against the distribution of pornography whatever the age. There should be laws against the distribution of pornography to persons under 18. There should be no laws forbidding the distribution of pornography.”

In 1998, 38% said laws against whatever the age, 57% said laws against for persons under 18, and 4% said no laws.  In 2008, 32% said laws against whatever the age, 64% said laws against for persons under 18, and 3% said no laws.

I predict that, every time I or another VC blogger posts with closed comments on a subject that Orin finds interesting, he will post something short with open comments soon thereafter. We will see how this prediction holds in the future. 

The answer is not “the rule of law.”  According to the WSJ, Holder said:

The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.

So the U.S. government has the option to try suspected members of Al Qaeda in civilian court or in military court.  The “rule of law,” then, does not compel traditional civilian-court protections.  However, the question remains unanswered.  To say that one has an option is not to say why one exercised that option as one did.

Then what is the answer?  It is surely this: the Obama administration has decided to offer a two-tiered system of justice.  We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier.  The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy.  The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.

This approach makes sense.  Endless detention without trial is no longer a politically viable option.  The government will make a judgment as to whether a suspect is dangerous or not.  If the case is good, the high-quality system will be used.  If the case is bad, the low-quality system will be used.  In this way, the government can ensure that people it thinks are dangerous will be locked up.

This system is superior to the two possible one-tier systems.  A pure low-quality system (military commissions only) suffers from credibility problems.  People will not believe that all the people who are convicted are guilty.  A pure high-quality system (civilian courts only) would result in too many acquittals.  People who the government believes are dangerous will be back on the streets.  The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convictions are not possible.  The two-tiered system produces higher overall credibility without sacrificing the incapacitation of dangerous (or supposedly dangerous) people.

The main criticisms of Holder’s approach are that KSM and others will take over proceedings and use them for propaganda purposes, that secrecy will be compromised, and that the approach signals insufficient seriousness about the terrorist threat.  The first two concerns are actually irrelevant.  The DOJ will decide on a case by case basis, and if those concerns in any particular case are serious, it will opt for military commissions.  The last concern is harder to evaluate, but it boils down to the claim that a blunderbuss system that results in outcomes that people distrust is better, on symbolic grounds, than a surgical system that produces the same pattern of convictions but with higher overall credibility.  Why would the more intelligent approach signal lack of seriousness about terrorism?

From U.S. v. Skoien, decided today:

A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9).... Skoien pleaded guilty but reserved his right to appeal [on Second Amendment grounds] the district court’s denial of his motion to dismiss the indictment....

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.

As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.

More thoughts on this, I hope, later today. Thanks to Miguel Larios for the pointer.