I’m sure many people saw this over at Instapundit, and maybe it’s not as cool as Sketch2 below, but I spent a while messing with this today and thought it was fascinating ... MarineTraffic.com, with a live GoogleEarth map of marine shipping worldwide.
Looks extremely cool, if it works. From Andrew Mager (ZDNet):
What if you could draw some stick figures on a screen and somehow magically create a beautiful image montage?Well, it’s possible.
A group of students in China have created [Sketch2Photo], a project that does exactly what I just described: it takes a rough, hand-drawn sketch, scours the web for photos that match, and runs them through an algorithm, stitching it all together.
Here’s their video on this:
Thanks to my friend and computer science professor Haym Hirsh for the pointer.
I started out legal life in California, clerking for the California Supreme Court and, already being a tax geek, was handed many of the state tax issues. So I have some familiarity with California’s tax law. It is complicated and in many policy aspects problematic, but also, to be clear as a lawyer, it is also highly sophisticated as a body of regulatory law. I have not had time to look back to California law and regulations on withholding, and haven’t updated my knowledge of the topic since I clerked there a long time ago and dealt with a couple of minor issues.
However, my understanding then was that withholding law was premised on it being an enforcement mechanism to ensure that the proper tax would be withheld on an expeditious basis and taking account of difficulties in collecting the tax due after the fact. I did not think that it had a basis in law as a revenue raising device in its own right — it was legally an administrative provision for the correct, fair, and efficient collection of tax due, where the actual tax due was figured on the basis of separate statutes.
So I am confused as to the legal authority of the state of California apparently to impose an increase in the withholding rate, not for reasons having to do with the fair and efficient collection of tax finally to be due, but instead to raise revenues or time revenues for reasons not deriving from the administrative necessities of actually collecting a tax, the amount of which is determined by separate tax statutes and regulations. Or have I not understood correctly, from news articles, what has taken place in a legal, tax-lawyer sense?
Starting Sunday, cash-strapped California will dig deeper into the pocketbooks of wage earners — holding back 10% more than it already does in state income taxes just as the biggest shopping season of the year kicks into gear.
Technically, it’s not a tax increase, even though it may feel like one when your next paycheck arrives. As part of a bundle of budget patches adopted in the summer, the state is taking more money now in withholding, even though workers’ annual tax bills won’t change.
Think of it as a forced, interest-free loan: You’ll be repaid any extra withholding in April. Those who would receive a refund anyway will receive a larger one, and those who owe taxes will owe less.
Okay, forced interest-free loan, got that. What I don’t understand is the legal basis for ordering it. I realize that I should do a little legal research, or anyway tell my research assistants to do it, but I’m swamped while still interested — and think it is broadly interesting, and not just in California. So: I would be interested to know particularly if any experienced California tax lawyers could explain for us the following.
I’m happy to hear people’s views on the policy and political issue, but I particularly welcome comments going to California law and regulations. Thanks.
Update: TaxLawyer (thanks!) provides helpful comments and a couple of links, below. One link is to a client advice memo (ie, public) from the Littler law firm. It provides a good, succinct analysis of the law and the change, and makes clear that the change is a revision to the standard withholding tax schedules. But it also adds that this is essentially a trap for the uninformed (emphasis added):
As part of California’s annual budget ordeal, rather than enacting new taxes, the legislature enacted (and the Governor signed) various income shifting and tax acceleration provisions. Under ABX4-17, as of November 1, 2009, employers will be using a new state income tax withholding table to increase by 10% the amount of income taxes withheld based on existing claimed exemptions ...
Typically, employees adjust the level of income tax withholding by submitting to their employers an IRS form W-4. California also has its own form, DE-4. Employees can submit different forms reflecting their state and federal personal income tax circumstances. Rarely will the use of either or both forms result in withholding that precisely matches the employee’s own annual income tax liability. Ultimately personal tax liability is a matter for the employee.
In an effort to accelerate revenue flow, beginning November 1, 2009, California is adjusting its income tax withholding tax tables by 10%. For example, if bi-weekly state income tax withholding is currently $500 a pay period on an employee’s regular wages, come November 1, such withholding will automatically adjust to $550 ....
As this flat rate adjustment may have no relationship to actual state income taxes, employers can anticipate employees will be potentially flooding payroll departments with revised W-4 and DE-4 forms to “right size” their withholding arrangement. Since nothing in the law forces employees to increase their withholding, an employee can effectively reduce the effect of this law by increasing claimed exemptions, if the new tables would result in excessive tax withholding.
California is proceeding on the assumption that either employees under withhold income taxes through payroll or that employees will not be smart enough to adjust their withholding, and instead give California an interest-free loan of California employees’ income.
That’s with respect to withholding taxes on employment income. There are separate issues with respect to other kinds of withholding, and the Littler memo notes the following. The statutory authorization, ABX4-17
also provides for those who file estimated taxes (typically the self-employed) to also accelerate such payments. Both of these acceleration features raise potential constitutional issues and/or other statutory issues, as in many instances such accelerated revenue receipts exceed an individual’s tax obligations and conflict with other state and/or federal laws obliging an employee to accurately provide for income tax withholding.
From the Chronicle of Higher Education:
Americans tend to have fewer close confidants today than they did two decades ago — but that isn’t because they’re all huddled over their computers playing World of Warcraft or reading the Volokh Conspiracy.
In fact, we like to think that reading the Volokh Conspiracy will give you more close confidants, and hotter ones at that. Indeed, “A report released Wednesday by the Pew Internet & American Life Project suggests that the Internet and other new communication technologies have, if anything, a modestly positive effect on the size and diversity of people’s friendship networks.” So remember: Every time you visit the Volokh Conspiracy, more people discover your inimitable charm and appeal.
Thanks to Prof. Mary Stange for the pointer.
My colleague Jacqui Lipton has posted some photos from the AALS faculty recruitment conference.
This fall is the 20th anniversary of the fall of the Berlin Wall and other events associated with the collapse of communism. Paul Hollander, a sociologist who has written numerous works on communism and Western attitudes towards it, has an op ed in the Washington Post, noting some of the lessons of the communist experience, and the failure of most Westerners to fully appreciate them:
The Berlin Wall that came down 20 years ago this month was an apt symbol of communism. It represented a historically unprecedented effort to prevent people from “voting with their feet” and leaving a society they rejected. The wall was only the most visible segment of a vast system of obstacles and fortifications: the Iron Curtain, which stretched for thousands of miles along the border of the “Socialist Commonwealth....”
While greatly concerned with communism in the late 1940s and early 1950s, Americans — hostile or sympathetic — actually knew little about communism, and little is said here today about the unraveling of the Soviet empire. The media’s fleeting attention to the momentous events of the late 1980s and early 1990s matched their earlier indifference to communist systems. There is little public awareness of the large-scale atrocities, killings and human rights violations that occurred in communist states, especially compared with awareness of the Holocaust and Nazism (which led to to far fewer deaths). The number of documentaries, feature films or television programs about communist societies is minuscule compared with those on Nazi Germany and/or the Holocaust, and few universities offer courses on the remaining or former communist states....
The different moral responses to Nazism and communism in the West can be interpreted as a result of the perception of communist atrocities as byproducts of noble intentions that were hard to realize without resorting to harsh measures. The Nazi outrages, by contrast, are perceived as unmitigated evil lacking in any lofty justification and unsupported by an attractive ideology....
In the aftermath of the fall of Soviet communism, many Western intellectuals remain convinced that capitalism is the root of all evil. There has been a long tradition of such animosity among Western intellectuals who gave the benefit of doubt or outright sympathy to political systems that denounced the profit motive and proclaimed their commitment to create a more humane and egalitarian society, and unselfish human beings. The failure of communist systems to improve human nature doesn’t mean that all such attempts are doomed, but improvements will be modest and are unlikely to be attained by coercion.
Hollander expands on his analysis in this longer article.
As he points out, communist atrocities have not received their full due in the West, despite the fact that the victims of communism (including some 100 million dead) far outnumber even those of the Nazis. Part of the reason is that the communists, unlike the Nazis, were perceived as having noble motives. However, this is a poor distinction. After all, Hitler and his supporters also believed they were doing the right thing, every bit as strongly as Lenin or Stalin did.
The second distinction often drawn between the two is that the Nazis killed people because of immutable characteristics such as race and ethnicity, while the communists did not. This argument also fails, for two reasons that I discussed in greater detail in this series of posts. First, Communist regimes often did kill people based on immutable characteristics. For instance, they often murdered people because of their class origins; no one could help being born a “Kulak” or a “bourgeois.” Also, Pol Pot, Joseph Stalin, and several other communist rulers targeted various ethnic minorities for deportation and extermination. Second, it is not clear that the distinction between killing innocent people for immutable characteristics and killing them because of mutable ones carries any moral weight. In my view, the case for distinguishing them falls apart on close inspection (see here and here).
Yet even if one ultimately concludes that the Nazis were somewhat worse than the communists, that still does not justify the massive size of the disparity between the enormous attention paid to the crimes of the former and the relative neglect of the latter.
UPDATE: One of the few Western organizations specifically devoted to promoting public awareness of communist crimes is the Victims of Communism Memorial Foundation, which has a website with lots of helpful information. I will probably mark the occasion of the fall of the Berlin Wall by making a contribution. Political scientist Rudolph Rummel, a leading academic expert on mass murder, has this website with lots of quantitative data on the extent of communist crimes (as well as those of other dictatorships).
Tags: 20th Anniversary of the Fall of Communism
From Donovan v. Grand Victoria Casino & Resort (Oct. 30), in which the Indiana Court of Appeals so holds, and cites a 1982 New Jersey case so holding:
[The casino] may not simply take refuge in the common law right of exclusion, inasmuch as it is the public policy of this State that gambling is subject to “strict regulation,” and the Commission has been given exclusive authority to set rules of riverboat casino games. The Commission did not enact a prohibition against card counting and Grand Victoria did not seek a prohibition by rule amendment. No law, regulation, or duly promulgated rule advised Donovan that the skill of card counting was prohibited.Indiana has implemented a comprehensive scheme for regulating riverboat gambling and thus has partially abrogated the common law right of exclusion.
I think this is a bad rule, and that casinos should be free to eject card counters from their property. Nor am I sure that this is indeed the best interpretation of the statutory text; I haven’t looked closely enough at the statutes to form a reliable opinion, but the statutes that the court cites don’t strike me as persuasive on this — that the statutes control the “rules of the game” doesn’t mean, I think, that they control the casino’s choices about whom to allow to play the game. But in any event, this appears to be the law in Indiana and New Jersey, which I didn’t know until I read the case.
All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few comments.
First, some people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional. That’s actually incorrect. The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality. If a statute is arbitrary or irrational, then it’s unconstitutional. That’s con law 101.
Next, some readers may not yet be convinced that the facts will show the genuine irrationality of throwing our clients in prison for using charitable funds to make more marrow donations happen. One enterprising commentator even did independent research on statistics to try to show that donating marrow isn’t as safe as we say it is.
We don’t need to prove the facts in a blog post (that’s for trial), but this discussion of the facts highlights something important: facts matter. As I said yesterday, a presumption of constitutionality is fine as long as it’s ultimately rebuttable through the presentation of evidence. The problem with taking the current standard (“negative every conceivable justification”) too literally is that doing so amounts to transforming the rebuttable presumption of constitutionality into an irrebuttable one.
Fortunately, courts don’t generally take the “negative every conceivable standard” literally. There are hundreds of winning rational basis cases across the country and the winning plaintiffs didn’t actually “negative every conceivable” justification for the invalidated government action. And what would it mean anyway to “negative” something and how could a lawyer know when she’d “negatived” literally every “conceivable” justification for a challenged government action without first deposing the judge and opposing counsel (as well as future appellate judges) to determine how many “conceivable” justifications are in play?
Another commentator remarked that it made a positive difference to him that our bone marrow case is an as-applied challenge. That commentator was right that we’re not trying to strike bone marrow from the statute on its face. We just don’t think it’s even minimally rational to apply criminal sanctions to our clients—who simply want to operate a pilot program using charitable funds from third-parties to incentivize more bone marrow donations—because applying the law to their pilot program advances none of the interests Congress was trying to serve with the statute. We’ve brought exactly the sort of narrow as-applied challenge that the Supreme Court says it prefers.
Kudos to the commentator who pointed out that just because you have life-rafts (legislatures) doesn’t mean that you don’t also need life-preservers (rights and judicial review). Some people seem bothered by the fact that we’re taking this case to court, arguing that we should just try to get the legislature to repeal the law. But we have three branches of government for a reason, and each of them has an independent duty to the Constitution. The fact that Congress can repeal a law doesn’t remove the judiciary’s independent obligation to apply the Constitution any more than the President’s ability to veto an unconstitutional bill relieves Congress of its independent responsibility to ensure that it send only constitutional bills to the President’s desk.
Thus, while our case is unusual, it isn’t radical. The specific right we’re seeking to vindicate is well-grounded in American history. Our challenge is as-applied and narrow. And we’re just asking courts to do what they have done in hundreds of other cases where citizens have prevailed on rational basis claims.
Thanks again to Eugene and everyone else.
A Ninth Circuit panel said no in June, and I thought its ruling was correct, though I disapproved of San Francisco’s resolution on nonconstitutional grounds. But yesterday, the Ninth Circuit agreed to rehear the case en banc, so it might be that the panel decision will be reversed (though I still think that it’s correct).
Thanks to Religion Clause for the pointer.
Winston-Salem, N.C., had an ordinance that provided,
(b) It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90–89 et seq. Such circumstances are:(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.
The North Carolina Court of Appeals struck this down Tuesday, in State v. Mello; here’s part of its reasoning:
In Evans [an earlier case –EV], we upheld the constitutionality of a statute that prohibited loitering for the purpose of engaging in prostitution, because it required that the person engage in certain acts “for the purpose of violating” anti-prostitution laws. We reasoned that, although some of the acts encompassed in the loitering statute were constitutionally permissible (i.e., repeatedly attempting to engage passersby in conversation, repeatedly stopping vehicles), the statute “require[d] proof of specific criminal intent, the missing element in unconstitutional ‘status’ offenses such as simple loitering.”Contrary to the statute at issue in Evans, the present Ordinance does not require proof of intent to violate a drug law, but imposes liability solely for conduct that “manifests” such purpose.... [Footnote: We note during defendant’s trial the jury was not instructed that defendant was required to have the intent or purpose to violate the Controlled Substances Act to be found guilty of loitering for the purpose of drug-related activity.] The Ordinance lists seven types of actions, each of which, by definition, is “conduct that manifests a purpose” to violate a drug law.
Because the Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct. Under the Ordinance, anyone who engages in the conduct listed in Ordinance § 38–29(b)(1)-(7) is deemed to possess the requisite intent to engage in drug-related activity, regardless of his or her actual purpose. A law which criminalizes a substantial amount of constitutionally permissible conduct is unconstitutionally overbroad.
Thus, the Ordinance permits the police to arrest a person who socializes at a community event for “repeatedly attempting to engage passersby in conversation[.]” Anyone who attempts to flag down taxicabs violates the Ordinance by “[r]epeatedly stopping or attempting to stop motor vehicles[.]” If an individual stops people on the sidewalk to conduct a public survey, he is “repeatedly interfering with the free passage of other persons[.]” Somebody who hands out fliers in public or collects donations is “repeatedly passing to or receiving from passersby ... money or objects[.]” A person who walks in the opposite direction of a police officer that he observes could be considered to be “taking flight upon the approach or appearance of a police officer[.]” A person who is present in an area where drug arrests have occurred or drug-dealers have visited, can be arrested for “being at a location frequented by persons who use, possess or sell drugs.” Accordingly, we hold the Ordinance to be unconstitutionally overbroad.
[UPDATE: I added the following paragraphs to the quote some time after putting up the post.]
[From the separate discussion of vagueness: –EV] It is unreasonable to expect an average citizen to predict what conduct is considered to be “behaving in such a manner as to
raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” The Ordinance, here, fails to define what type of conduct violates this provision, and leaves ordinary persons uncertain on how to adhere to the law.Furthermore, a reasonable suspicion of illegal activity is not sufficient to justify an arrest, as the Fourth Amendment requires the police to have probable cause before making an arrest. Arresting a person on suspicion alone is prohibited by our Constitution. In accordance with these principles, we hold § 38–29(b)(4) of the Ordinance to be unconstitutionally vague, as it fails to clarify what behavior this provision governs.
Note that, in its overbreadth discussion, the court is listing both behavior that is (1) protected by the First Amendment (such as handing out fliers, or taking a survey) and behavior that (2) probably isn’t constitutionally protected — for instance, trying to flag down a taxicab, which possibly might be outlawed if the city really wanted to — but that is generally seen as itself entirely innocent, and that no legislature wants to categorically ban. Generally speaking, federal overbreadth doctrine focuses only on the overbroad inclusion of constitutionally protected speech (category 1 in the preceding sentence), and allows prophylactic laws that ban a good deal of otherwise innocent but not constitutionally protected behavior. But I’ve seen other state cases that also treat laws as overbroad when they cover a lot of conduct that is broadly seen as innocent even if it isn’t constitutionally protected (category 2).
If you are going to be around Palo Alto next Thursday evening, you might consider attending a panel discussion on robotics and law at Stanford Law School. I’ll be on a panel alongside some very interesting and knowledgeable folks taking up varied aspects of robotics (my particular interest is robotics and war, but the panel will be considering many areas of robotics). The particulars are below the fold.
(Update:) Here’s the assigned topic for comments, following up on Laura’s opening comment ... should the panel discuss the Three Laws? Are they a useful ethical/legal frame for dealing with robots in various aspects of human life? Did Asimov lead us all astray by proposing them? Should we instead avoid discussing them altogether? What would you propose would be a better set of principles/laws/guidelines for robot-human interactions?
(I’ll also be giving a lunch talk/discussion that same day sponsored by various student organizations at SLS specifically on robotics and armed conflict. And thanks Glenn for the Instalanche!)
Continue reading ‘Law and Robotics Panel at Stanford Law School’ »
This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture. I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things. However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.). Kosar’s review notes (along with some criticisms of the book):
Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.
Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one....
Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.
Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”
As many readers probably know, McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?
Next Friday, November 13th, from 12:30–2:30pm, the Georgetown Law Journal will be hosting a program entitled, “A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?” The discussants are Georgetown Law graduate Alan Gura, who argued and won the Heller case and is Lead Counsel who will argue McDonald, Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School (and who has recently accepted an appointment to the University of Illinois faculty), David Gans of the Constitutional Accountability Center, and me. I am coauthoring an amicus brief on the Privileges or Immunities Clause for the CAC.
The program is free and open to the public. Details are here.
UPDATE: Webcast will be available here:
The Vanderbilt Law Review’s “En Banc” online supplement has published a roundtable on Free Enterprise Fund v. PCAOB, an important separation of powers case the Supreme Court will hear later this term. The case concerns the constitutionality of the Public Company Accounting Oversight Board, an independent entity appointed by the Securities and Exchange Commission. The roundtable features an impressive line up of constitutional and administrative law scholars: Peter Strauss, Richard Pildes, Stephen Calabresi and Christopher Yoo, Harold Bruff, and Gary Lawson. Prior VC posts on this important case can be found here.
Advocates of the “new paternalism” (sometimes also called “libertarian paternalism”) argue that carefully calibrated government interventions can help consumers avoid mistakes caused by their own cognitive biases. In this interesting new article, economist Mario Rizzo and legal scholar Glen Whitman argue that new paternalist policies are vulnerable to slippery slopes that will extend them far beyond the areas where they might be genuinely need to correct consumer errors. Here is the abstract:
The “new paternalism” claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.
I have myself previously criticized the new paternalism here, here, here, and here. Rizzo and Whitman argue that the danger of slippery slope effects is greater if policymakers themselves suffer from cognitive biases. In this post, I pointed out that the voters who elect the policymakers also suffer from ignorance and cognitive bias, often to a greater extent than the consumers whose biases new paternalist policies are intended to correct. Giving more power to cognitively biased government officials elected by rationally ignorant and cognitively biased voters is likely to exacerbate the effects of cognitive error more than correct it.
Finally, I can’t write a post about slippery slope effects without mentioning Senior Conspirator Eugene Volokh’s excellent “Mechanisms of the Slippery Slope,” which is extensively cited by Rizzo and Whitman. This is my personal favorite among Eugene’s many articles.
Two of Leon Trotsky’s best-known quotes are his statement that “Where the sole employer is the State, opposition means death by slow starvation” (made famous, especially among libertarians, in part because it was quoted by Hayek in The Road to Serfdom), and the very next sentence in the same paragraph: “The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat.” My GMU colleague Bryan Caplan helpfully provides the context of these quotes, from Trotsky’s 1936 book, The Revolution Betrayed:
During these years [since Stalin took power in the USSR] hundreds of Oppositionists, both Russian and foreign, have been shot, or have died of hunger strikes, or have resorted to suicide. Within the last twelve years, the authorities have scores of times announced to the world the final rooting out of the opposition. But during the “purgations” in the last month of 1935 and the first half of 1936, hundreds of thousands of members of the [Communist] party were again expelled, among them several tens of thousands of “Trotskyists.” The most active were immediately arrested and thrown into prisons and concentration camps. As to the rest, Stalin, through Pravda, openly advised the local organs not to give them work. In a country where the sole employer is the state, this means death by slow starvation. The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat.
Bryan points out that this context doesn’t reflect well on a man who is still admired by many leftists and even a few ex-leftist conservatives:
Worth noticing: While Trotsky meant what libertarians think he meant, the man’s sheer evil still shines through. He doesn’t mind if the socialist state starves human beings. He was delighted to wield this power when ran the Red Army. No, Trotsky is outraged because the Soviet Union is turning its totalitarian might upon fellow Communists. Was there ever a better time to snark that “Those who live by the sword shall die by the sword”?
As I explained in this series of posts, Trotsky was a brutal mass murderer who objected to political repression only when it targeted his fellow communists. He also opposed Stalin in part because he thought Stalin wasn’t repressive enough. Any residual admiration for Trotsky is sorely misplaced.
Nonetheless, the translation of The Revolution Betrayed quoted by Bryan seems to be less damning than the wording quoted by Hayek. In Hayek’s version, Trotsky is quoted as writing that “Where the sole employer is the State, opposition means death by slow starvation” (emphasis added). Since Trotsky of course favored an economic system where the state is the sole employer, this version of the quote implies that he also favored the inevitable “slow starvation” of oppositionists. By contrast, the translation linked by Bryan states that “Where the sole employer is the State, this [referring to Stalin’s policy of denying employment to oppositionists] means death by slow starvation.” The translation quoted by Bryan doesn’t seem to say that opposition means death by starvation in any society where the state is the sole employer, but only if that state is governed by Stalin’s policy of denying work to “oppositionists.” And, as we can see later in the same chapter, Trotsky did not propose to abolish the government’s monopoly over employment, but merely to replace the Stalinist “bureaucratic” class with a different set of economic central planners. The latter might potentially have a more liberal policy on employing oppositionists. Which version is correct? The only way to tell is to check the original Russian text of The Revolution Betrayed. If anyone can find it online, please let me know and I would be happy to do the checking myself.
Even the more charitable version of this passage still doesn’t paint Trotsky in a flattering light. After all, as Bryan notes, the only “oppositionists” whose right to dissent Trotsky wanted to protect were communists who disagreed with Stalin’s party line. Towards the end of the same chapter of The Revolution Betrayed, Trotsky calls for “a revival of freedom of Soviet parties, beginning with the party of Bolsheviks.” Non-Soviet (i.e. — non-communist) parties need not apply. He had no objection to the “slow starvation” (or even outright execution) of non-communist oppositionists, including even non-communist socialists. Indeed, when he was still in power, Trotsky often ordered such starvation and execution of political opponents himself.
UPDATE: I have found the Russian text of The Revolution Betrayed online here. In my judgment as a native speaker of the language, the Russian version is closer to the translation cited by Bryan than the one used by Hayek. Here is the original Russian text of the relevant sentence:
В стране, где единственным работодателем является государство, эта мера означает медленную голодную
смерть. Старый принцип: кто не работает, тот не ест, заменен новым: кто не повинуется, тот не ест.
Here’s my own translation:
In a country where the state is the sole employer, this policy [referring to Stalin’s policy] means a slow death by starvation [for oppositionists]. The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat.
The key Russian phrase “эта мера” literally means “this measure.”
UPDATE #2: Some commenters on this and previous posts about Trotsky ask whether anyone really admires Trotsky anymore. In reality, quite a few modern leftists still do. Christopher Hitchens (see here and here) is one example. As Clive James points out, Trotksy “lived on for decades as the unassailable hero of aesthetically minded progressives who wished to persuade themselves that there could be a vegetarian version of communism.”
Tags: Trotsky
Yesterday I participated for the first time in the Legal Talk Network’s Lawyer 2 Lawyer podcast. The topic: The Fourth Amendment and E-mail. It’s about 30 minutes long, and it covers some of the recent developments in the law of e-mail privacy.
Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.
In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might be seen as a kind of unilateral disarmament. I hope that the two parties would agree on mutual disarmament, but I’m not holding my breath that any such thing is likely to happen.
Schapiro also argues that the health care mandate is consistent with federalism in ways that go beyond merely respecting constitutional constraints:
Even if current law does permit a mandate, though, one might ask whether it should....
What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.
Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.
What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.
The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.
“Federalism” can mean many different things to different people. In my view, however, there are important beneficial aspects of federalism that go beyond merely “inform[ing] public debate.” Among these are policy diversity and competition between state governments, which enable people to “vote with their feet” for the policies they prefer. Preserving these benefits of diversity and competition requires enforcement of limits on the power of the central government. Otherwise, both will often be stifled through the imposition of one size fits all centralized solutions. If we want “a federalism of the people, by the people and for the people,” we need constitutional limits on the power of the central government.
If, as Schapiro assumes, the only important purposes of federalism are to facilitate “public debate” and promote experimentation, it’s not clear why we need federalism at all. Public debate can and does occur at the national level too. Indeed, the public and the media usually pay much more attention to proposed federal legislation than to state policies. And a unitary central government can still engage in policy experiments, including ones whose geographic scope is limited. For example, it could establish an experimental health care policy that is limited to one part of the country and then impose it on the rest of the nation if the results prove that the experiment “worked.”
UPDATE: I have eliminated a typo and some minor infelicities that were in the original version of this post.
Tags: Health Insurance Mandate
I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.
Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.
But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.
In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:
KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.
Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:
In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.
But the Ninth Circuit’s rules provide for an en banc from the en banc – a super banc? – of all of the judges. As Judge Kozinski explained in 2003 testimony:
In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.
Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.
An interesting post from Prof. Howard Friedman (Religion Clause) on a recent decision:
In Council on American-Islamic Relations v. Gaubatz, (D DC, Nov. 3, 2009), the U.S. District Court for the District of Columbia granted a temporary restraining order to CAIR to prevent the use by defendants of various documents and e-mails that were surreptitously taken from CAIR’s offices. Defendant Paul Gabautz publishes a blog devoted to “exposing Islamic terrorist operations in America.” A number of postings on the blog accuse CAIR, a Muslim advocacy group, of being a front for the Muslim Brotherhood and of supporting Al Qaeda. Paul Gabautz implemented a plan to get his son, Chris, hired as an intern at CAIR under an assumed name. Chris copied or removed various documents and recorded various meetings and conversations at CAIR. Many of the materials were either posted on Paul’s blog, or included in a book co-authored by Paul that was published last month titled Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America. Among the blog postings were lists of CAIR employees and donors (with personal contact information). The TRO, along with its broader bans, specifically ordered removal of these and return of the lists to CAIR. Here is an account of the decision and background on it from World Net Daily that published Gaubautz’s book and is defending the Gaubautz’s in the lawsuit.
I haven’t read the decision myself yet, but I thought the item was worth passing along; to see the underlying documents, go to the Religion Clause post for links.
This Chicago Sun-Times article reports:
A Cook County judge today threw out an indictment against a Chicago Police officer accused of falsifying drunken driving arrests.Judge James M. Obbish said prosecutors were wrong to rely on statements Officer John Haleas gave to police investigators during an internal investigation of his conduct.
Under union rules, such statements cannot be used against an officer in a criminal case, the judge said, ruling on a defense motion to dismiss the case....
I don’t have access to the judge’s opinion — if any of you can point me to it, I’d love to see it — but I highly doubt that union rules (even in Chicago) can affect the admissibility of evidence in criminal trials.
But the Supreme Court’s caselaw on the privilege against self-incrimination, and in particular Garrity v. New Jersey might well be doing the work here:
Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.
Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department....
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions....
Perhaps there are union contract provisions that reflect the Garrity principle. But the rule of exclusion of evidence would be set by Garrity or perhaps by any Illinois legal rules that might be based on Garrity, not by the union contract itself.
UPDATE: I forgot to make this clear at first: I think that the judge probably didn’t rely on union rules, but instead relied on Garrity or cases or statutes that flow from it.
Today I’d like to discuss how to apply principled judicial engagement to the bone marrow case (see previous posts here, here, and here), and I hope to explain this in a way that responds to some of the concerns in the comments that this case may lead to open-ended judicial activism. Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.
The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans. Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation. No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case. Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like. As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.
The next step is how to apply rational basis review to this right in a meaningful way that respects legitimate legislative prerogatives and does not allow judicial activism. We can certainly begin with a presumption of constitutionality, as the rational basis test does. The key is that this presumption cannot be irrebuttable or the functional equivalent (for example, requiring a plaintiff literally “to negative every conceivable basis” for a law). After all, if the presumption of constitutionality is irrebutable, then there would be no judicial review under the rational basis test. But there is meaningful review under the rational basis test. The Supreme Court has found that at least a dozen laws lacked a rational basis (some are equal protection cases such as Quinn v. Millsap, 491 U.S. 95 (1989) or Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), while others involve different constitutional provisions with rational basis review such as the Commerce Clause in U.S. v. Lopez, 514 U.S. 549 (1996)) and other courts have done the same literally hundreds of times. Some people (even Supreme Court Justices from time to time) may seem to imply that the rational basis test requires the government to win in every case, but that just isn’t borne out by the case law
Meaningful rational basis review requires judicial engagement and courts using this approach have protected liberty without being activist. Judicial engagement involves looking at the government’s proffered justifications, looking at the facts (something courts do in other contexts all the time), and determining if those justifications are at all plausible (meaning genuinely credible and believable, and not just fanciful). If they are, then the statute should be upheld. But if, despite a strong benefit of the doubt, the challenged law does not in any sense plausibly advance a legitimate government interest, then the law should be invalidated.
IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement. Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors. The state proffered a host of purported health and safety interests this restriction might serve. But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition. Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered.
Let’s apply judicial engagement to the bone marrow case. We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility. What are the legitimate government interests NOTA is trying to advance? We know a few for sure. Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk. Congress also didn’t like that organs don’t regenerate. Finally, Congress didn’t want organ markets.
None of these interests is remotely advanced by criminalizing compensation for marrow cells. Marrow cells are not an organ; they are renewable; and getting them is safe. Our clients are not asking to create markets in their narrow as-applied challenge and, due to the peculiar features of marrow cells and the requirement that donor/patient matching is anonymous, there is no credible possibility that this case will create marrow markets.
How about hypothetical interests? Is it plausible that Congress criminalized compensation for marrow because of problems with paid blood donors in the 1970s? Not only was this never mentioned during the NOTA hearings, NOTA didn’t criminalize compensation for blood (which, if it was worried about problems with paid blood donors, would have been priority one). Moreover, the text of the statute, along with the final conference report and many other pieces of legislative history, make it clear that the criminal provision of NOTA isn’t supposed to reach renewable cells like blood. Or how about this hypothetical concern: Congress could have included bone marrow in NOTA to protect people from the temptation of subjecting themselves to sheer unpleasantness for compensation? I guess that’s “conceivable,” but it isn’t credible in light of the legislative history, the text of the statute, and common sense.
Let’s assume that the fact-record shows either that the bone marrow provision does not plausibly advance any of Congress’ actual interests. Let’s also assume that there are not any hypothetical justifications for the law that could plausibly be imputed to Congress.
So what would happen if, as we expect, the courts invalidate the application of NOTA’s criminal provision to our clients? All such a case would say is that plaintiffs witha specific and demonstrably legitimate constitutional interest can vindicate their rights, not by hoping for an activist judge with a personal preference for them, but by rebutting under a demanding evidentiary standard the strong presumption of constitutionality with evidence clearly showing that the challenged law does not plausibly advance any legitimate government interest.
Judicial engagement of this sort is not judicial activism and a decision in our favor in this case would not lead to judges invoking sweeping and ill-defined “rights” to rework the world according to their own personal preferences.
Meaningful judicial review is part of our systems of checks and balances and judicial engagement simply ensures that courts play their vital role in protecting liberty from arbitrary, irrational, and otherwise illegitimate deprivations.
The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate.
We’ve had something of a debate over this subject here on the VC as well. Our prior posts are collected here.
Most of the university student speech debate has focused (rightly, in my view) on restrictions that apply to student speech outside class — in student conversations, demonstrations, newspapers, flyers, and so on. But Harrell v. Southern Oregon University (Oct. 30) involves in-class speech, albeit in an online classroom. (Here’s the magistrate judge’s decision, which the decision I cited above adopts.)
The Southern Oregon University Code of Student Conduct prohibits
Disruption, obstruction or interference with educational activities in classrooms, lecture halls, campus library ... or any other place where education and teaching activities take place including, but not limited to, talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors, displaying defiance or disrespect of others, or threatening any University student or employee.
Peter Harrell was taking some online classes, in which the class discussion took place through an online discussion board. He was at first apparently admonished by his instructor for disrespectful statements, and then eventually disciplined by the university (by being put on probation) for such statements.
The opinions aren’t rich in details about the statements, and the Complaint highlights some of the statements in a way that leaves them unreadable. But the statements appeared to be statements to classmates such as “clearly you haven’t bothered to read the rest of the board on this topic” and “but you clearly haven’t bothered to do your reading. Feel free to post some concrete information on your own, however.” Those are probably not seen as especially rude by the standards of online discussion generally, but are in my view quite rude but not extremely rude by the standards of in-class discussion. (I would, for instance, promptly admonish a student for making such statements in my classroom.)
So Harrell sued, claiming that the Code provision was facially unconstitutional — vague and overbroad — and that it was unconstitutional as applied to him. The court said no, specifically because the provision was limited to classroom speech. In context, the magistrate judge concluded, and the district judge agreed, that the policy is not vague because in context the ban on “disrespect[ful]” speech is limited to “disruption or interference with classroom activities.” And so read, the policy is not overbroad, because of the university’s legitimate power to restrict speech in the classroom (especially because the speech wasn’t “core religious [or] political speech,” and because “it attempts not to limit the ideas of an individual but the way in which an individual interacts with others, unrelated to political speech”).
Here’s my thinking on the matter:
1. Speech in university classes is rightly much less constitutionally protected than speech outside class. An obvious example is that students generally may not speak at all unless called on by the professor. But beyond that, the professor may choose to limit discussion by subject matter, by perceived quality, and even by viewpoint. He might, for instance, cut off a student who’s going off-topic (and avoid calling on habitually off-topic students). He might specifically ask for students to make an argument in favor or against a particular result (and if a called-on student doesn’t comply with this, he may cut the student off). He might prefer to call on students who, in his experience, have what he see as higher-quality things to say. And he might cut off even on-topic arguments that he sees as expressing incorrect or logically unsound viewpoints.
2. Professors also rightly exercise this power as to rude speech. I think I’ve either never or almost never encountered student rudeness in the classroom. (I vaguely recall one possible hissing incident, which was condemned at the time, but it would have been so long ago that I’m not even sure that it happened when I was a professor or a student.) But if someone did say something rude in class, I would cut the student off, and admonish him. And if this happened often enough, I’d stop calling on the student until he gave me assurances that he’d be more polite.
This is in part because classroom discussion is itself a teaching tool, a kind of orchestrated speech product that is provided for the benefit of listeners as well as speakers. The professor is the conductor of the performance, or the editor of the aggregate product; he deliberately uses students’ own speech, but in a way that’s channeled by his own editing decisions. And if students are rude to each other, the result will generally be a lower quality and less effective class discussion, which is to say that the professor won’t be able to generate as effective a speech product as he would have if he had prevented the rudeness.
Much as this justifies, in my view, editing of online discussion lists (and comment threads), it even more justifies professor-as-editor/conductor control of classroom discussions. And this necessarily includes content– and viewpoint-based controls, though in imposing such controls the professor himself should be subject to constraints — but likely not judicially enforceable constraints — of fairmindedness, open-mindedness, and politeness.
3. So far, though, all that I’ve discussed chiefly involves restrictions imposed by the professor, where the sanctions consist only of (1) the professor’s cutting off a student comments, (2) the professor’s not calling on a student in the future, (3) the professor’s publicly or privately admonishing the student, and (4) the professor’s grading down the student for in-class participation, in classes where participation is graded (a process that likewise necessarily involves content-based judgment, and even in some measure viewpoint-based judgment). The university disciplinary process only needs to be invoked, I think, when the student refuses to accept the professor’s in-class restrictions, and talks when not called on.
4. It’s more troubling, however, when disciplinary sanctions are possible not just for talking out of turn — or continuing talking after the professor has tried to cut one off — but for saying things that “disrupt[], obstruct[], or interfere[] with educational activities ... including ... displaying ... disrespect of others.” For instance, consider one of the examples given by the University of Michigan of sanctionable conduct, in the speech code struck down by Doe v. University of Michigan: “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning atmosphere for female classmates.” In fact, at the University of Michigan, “At least one student was subject to a formal hearing because he stated in the context of a social work research class that he believed that homosexuality was a disease that could be psychologically treated.”
Likewise, another “incident involved a comment made in the orientation session of a preclinical dentistry class. The class was widely regarded as one of the most difficult for second year dentistry students. To allay fears and concerns at the outset, the class was broken up into small sections to informally discuss anticipated problems. During the ensuing discussion, a student stated that ‘he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.’ A minority professor teaching the class filed a complaint on the grounds that the comment was unfair and hurt her chances for tenure. Following the filing of the complaint, the student was ‘counseled’ about the existence of the policy and agreed to write a letter apologizing for making the comment without adequately verifying the allegation, which he said he had heard from his roommate, a black former dentistry student.” And the court held the speech code unconstitutionally overbroad in part because of its effect on in-class speech:
Doe said in an affidavit that he would like to discuss questions relating to sex and race differences in his capacity as a teaching assistant in Psychology 430, Comparative Animal Behavior. He went on to say:
An appropriate topic for discussion in the discussion groups is sexual differences between male and female mammals, including humans. [One] . . . hypothesis regarding sex differences in mental abilities is that men as a group do better than women in some spatially related mental tasks partly because of a biological difference. This may partly explain, for example, why many more men than women chose to enter the engineering profession.Doe also said that some students and teachers regarded such theories as “sexist” and he feared that he might be charged with a violation of the Policy if he were to discuss them. In light of the statements in the Guide, such fears could not be dismissed as speculative and conjectural. The ideas discussed in Doe’s field of study bear sufficient similarity to ideas denounced as “harassing” in the Guide to constitute a realistic and specific threat of prosecution.
All of these statements, and many more like them, could be seen by university administrators as “displaying ... disrespect of others” and thereby “disrupt[ing], obstruct[ing], or interfer[ing] with educational activities.” Nor does the magistrate judge’s supposed clarifying construction, which is that the “disrespect” ban only “prohibits disrespect that would interfere with educational activities,” solve the problem — in the university’s view, the expression of such ideas in class might well “interfere with educational activities” in some measure.
5. It therefore seems to me that it’s much better to leave control of in-class speech to the professor, backstopping the control with administrative sanctions only when the student talks out of turn, or otherwise disobeys the professor’s clear prohibition on speaking. Such a policy would leave the professor with the flexibility to constrain rudeness — and distractions of all sorts — and orchestrate class discussion in the way he sees as most pedagogically effective. But at the same time, it would pose far less of a deterrent effect than would a policy under which students could be disciplined by the university simply for saying certain things in class. (There would still be a substantial deterrent effect on certain statements, especially in classes where class participation is grade; but some such deterrent effect is inevitable.)
The question is whether university discipline for the content of in-class speech (not just passive speech as armbands, but active participation) — even speech that is seen as “disrespect[ful]” and therefore “disrupt[ive]” — is (1) unconstitutional, likely because of its extra deterrent effect on in-class speech, or (2) a bad idea but constitutional, because the government has unquestioned authority to restrict in-class speech through its agent the professor (who may well be a government agent for his teaching, though not for his scholarship) and is therefore free to restrict such speech through the administrative sanctions process as well. I tentatively lean towards item 1, and I do think that Doe v. University of Michigan supports that. But it strikes me as a difficult question.
AP reports on a new Fannie Mae program to allow homeowners who can’t pay their mortgages to rent instead:
Thousands of borrowers on the verge of foreclosure will soon have the option of renting their homes from Fannie Mae, under a policy announced Thursday.
The government-controlled company, through its new “Deed for Lease” program, will allow borrowers to transfer ownership to Fannie Mae and sign a one-year lease, with month-to-month extensions after that.
The program will “eliminate some of the uncertainty of foreclosure, keeps families and tenants in their homes during a transitional period, and helps to stabilize neighborhoods and communities,” Jay Ryan, a Fannie Mae vice president, said in a statement.
But the effort is likely to affect a relatively small number of homeowners. In the first half of the year, Fannie Mae took back about 1,200 properties through this process, known as a deed-in-lieu of foreclosure. That pales in comparison to the 57,000 foreclosed properties the company repossessed in the period. . . .
The rental program is designed to help homeowners who don’t qualify for a loan modification under the Obama administration’s plan, but still want to remain in their homes. . . .
Fannie Mae has hired an outside company, which officials declined to identify, to manage the properties.
In the Depression, when the government took over late or delinquent mortgages, many people just stopped paying because they knew that the federal government usually didn’t have the stomach to foreclose.
With its new rental program and Fannie Mae’s superb record of planning and management, what could possibly go wrong?
Josh Wright and Adam Levitin have been going back and forth about Wright’s paper (co-authored with David Evans) about the predicted impact of the adoption of the Consumer Financial Protection Agency (CFPA) on the availability of credit, economic growth, and new business formation (many new businesses rely on their founder’s personal consumer credit, such as credit cards, to start businesses, a point for which the CFPA makes no allowance). Wright and Evans offer some lower-bounds estimates of the predicted impact of the CFPA on interest rates and the other variables. Levitin has criticized their estimates as arbitrary. The estimates matter in thinking about the overall costs and benefits of the CFPA. Levitin criticizes the Wright & Evans estimates, but he offers no estimates of his own of the costs, benefits, or net costs and benefits of the proposal. Prof. Levitin seems to conclude from the absence of any estimated cost-benefit analysis, or any prediction of whether the benefits would exceed the costs, that this means we should go forward with the CFPA, a conclusion that seems questionable to me as I would think that the proponent of a new regulation (or a proponent of deregulation for that matter) would typically bear the burden of proof in advocating for a move from the status quo.
Be that as it may, Wright has proposed that the issue be settled on the field of battle–through a wager! Here’s Wright’s wager (the stakes are undefined at this point):
The CFPA Act’s supporters have fought vigorously for this piece of legislation. Professor Levitin appears quite confident that our analysis represents a “scare statistic” meant to avoid rigorous cost-benefit analysis and to ignore precision. Of course, we find this line of attack ironic in light of the complete absence of empirical evidence in favor of the CFPA Act mustered up by its supporters. More generally, we’d like to offer Professor Levitin the opportunity to prove that he means what he says about our overestimate of the lower bound of the impact of the CFPA Act on consumer credit and about the beneficial effects of the CFPA Act more generally. We are economists. And so we also believe in the power of revealed preferences. We stand by our estimate of the lower bound at 2.1 percent. If Professor Levitin is correct that is a ‘scare statistic’ that we’ve inflated from the true number, we would like to provide an opportunity for Professor Levitin to profit from our misguided approach and to test whether he really believes that the effect on consumer credit will be smaller than that.
We propose the following wager to Professor Levitin:
If the effect on consumer credit is less than 2.1 percent, you win and we lose
If and when the CFPA Act is passed, there will be ample data to test the impact of the CFPA on consumer credit directly. We’re happy to negotiate what methods should be used to calculate the number to both of our satisfaction. We’re also happy to let you name the stakes. But let’s make it interesting. If it’s good enough for Mankiw and Krugman, it’s good enough for us. What do you say?
I wish that wagers such as this would become more common. The most famous was probably the Simon-Ehrlich wager.
Back during the debates over the 2005 bankruptcy reform act I wish that I had thought to make a wager on whether bankruptcy filings would decline following the reform. Critics argued that filings would stay the same because bankruptcy filings are largely involuntary (so consumers don’t respond to incentives) or even that bankruptcy filings would rise because credit card issuers would expand credit supply and lending to riskier borrowers. I think a well-specified wager (as is the Wright challenge) is an excellent way of seeing how much people believe their claims as opposed to just making rhetorical arguments.
Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases. This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice. After all, for a capital defendant, effective assistance of counsel can be a matter of life and death. Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.
One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel. On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all. But what of shoddy or negligent legal work? Should that be sanctionable too?
Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.
The key facts are these. Johnson was initially convicted in 1983 and sentenced to death. A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his trial. Specifically, Johnson’s initial attorney had failed to investigate Johnson’s background for potential mitigation evidence that could be presented to the jury. The Ohio Supreme Court agreed, vacated Johnson’s sentence and ordered a new trial.
Johnson’s new attorney — the one who had successfully argued that Johnson’s initial representation was constitutionally inadequate — represented Johnson in the new trial. Johnson was convicted and, once again, was sentenced to death. Here is where it gets ugly. For Johnson’s new attorney made the precise same error as his initial attorney: He made no effort whatsoever to find potential mitigation evidence for the penalty phase of the trial. Thus, Johnson once again received ineffective assistance of counsel. Indeed, according to the Sixth Circuit, Johnson’s representation the second time around was “more egregiously deficient” than in most prior cases.
The same attorney who secured that favorable decision from the Ohio Supreme Court, James Willis, also represented Johnson at the retrial. But, after arguing successfully that Johnson’s original attorney had been constitutionally ineffective in failing to present available mitigating evidence at the penalty phase of the proceedings, Willis himself committed the same grievous error. He introduced no mitigating evidence at the penalty phase of the second trial, instead relying solely upon Johnson’s unsworn statement to the jury, a statement in which the petitioner chastised the finders-of-fact at length for failing to find a reasonable doubt as to his guilt despite what he alleged were numerous weaknesses in the prosecution’s case.
In a series of affidavits submitted to the Ohio state courts in post-conviction proceedings, Willis admitted that his sole preparation for Johnson’s capital murder trial consisted of reading the transcript of the petitioner’s first trial – a trial that had resulted in convictions for aggravated murder and aggravated robbery, as well as a sentence of death – and speaking with Johnson himself. . . .
The petitioner’s counsel at his second trial reviewed the transcript of the first trial, noted the ineffective assistance provided by Johnson’s original attorney, and convinced the Ohio state courts that it violated constitutional standards of representation. Nevertheless, prior to and during Johnson’s second trial, attorney Willis admittedly interviewed no new or old witnesses, did not request or hire an investigator for the second trial, “felt there was no need for any new investigation into Gary Johnson’s case,” did not seek any discovery prior to the second trial, and presented no evidence in mitigation at the second trial. Thus, in effect, Willis merely replayed the disastrous initial trial a second time. Not surprisingly, the same result followed, and Johnson was once again sentenced to die at the hands of the state for his crimes.
What is particularly striking about this case is that Johnson’s attorney knew that the failure to investigate Johnson’s background constituted ineffective assistance of counsel, and could be grounds for a new trial. So the only question was whether the attorney’s deficient representation was a product of incompetence or design. Either way, Johnson should not suffer for his attorney’s malfeasance. The attorney, on the other hand, should be subject to sanction.
Like many others, I’ll be off to D.C. tomorrow to attend the AALS faculty recruitment conference. Perhaps I’ll see you there.
A lot of people have e-mailed me asking for my thoughts about a disturbing video that Radley Balko posted recently. The video shows a criminal court hearing in which a deputy assigned to court security walks over to the defense attorney’s papers on the counsel table and starts to look at the papers. Eventually he reaches down and pulls out a document from the stack of papers, passes it off to another deputy, and then the other deputy walks away with it. (The real action starts around the 1:30 mark.) As I understand things, it’s not clear from the video what the officer was looking for, what he thought he found, or why he took the paper.
My own thought is that it’s outrageous: If I were the judge, I would be steaming mad unless the deputy had a pretty damn good reason for doing what he did. The most obvious remedy is to hold a hearing on what happened in to determine if the deputy should be held in contempt of court. Indeed, the first part of a hearing was held this week, with the remainder to come next week. (H/t: Scott Greenfield)
Based on the media coverage of the first part of the hearing, it looks like the officer’s efforts to explain himself were a dud, but that the hearings are getting stuck on the question of attorney-client privilege. That is, the defendant in the case doesn’t want to waive his privilege, which means that the document’s identity and significance is a secret. And that in turn means that the deputies apparently can’t give the reason why they took the document, if they actually have any reason to give, which we don’t really know.
So my overall assessment is that this looks like a mess: It’s hard to see how the deputy could have had a valid reason for looking through the files and taking the document. On the other hand, right now the privilege issue is getting in the way of getting to the bottom of it.
While Congress considers legislation to impose a cap-and-trade regime on emissions of carbon dioxide and other greenhouse gases, Warrne Buffet makes “a huge bet on coal.” Either Buffet’s made a blunder, or he realizes any cap-and-trade legislation that can pass Congress will do little to reduce coal consumption. (HT: Roger Pielke Jr.)
Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition. The AP story is unusually detailed for a wire story and bears reading. I am in the middle of something and can’t stop to comment on the substance.
However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.” It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.
Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently. Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters — given the relatively little interest that Republican members of Congress show. Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.
My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad. On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years. I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo — and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad. I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog. Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this. It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.
But whether the psychological motivations are as I believe they are or not — whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. — the biggest reason I think this is the wave of the future is the strategic logic of the situation. Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same. Targeted killing using Predators seems to me very, very likely — just as soon as there is a Republican in the White House. Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.
Why one party and not the other, if based on anything other than claimed psychological affinities? If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans — for, after all, the same behavior — then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm. A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans. So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%. That’s so whether or not you have the same appetite for going after people in any administration.
If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans. So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%. That seems to me a reasonably rational strategic argument, at least from the foreign standpoint. (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)
I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else — and suddenly legally liable — when it is the next Republican administration. And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.
I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations — national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation. So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it. I’m not holding my breath.
(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well. Apologies to any non-abusive commenters whose comments I deleted.)
Above The Law reports:
There was NO SETTLEMENT in this case. Above the Law has made no changes to our prior posts, and we have paid no money to Professor Jones. The case was dismissed by the plaintiff without anything from our side, except a letter from our lawyer.UPDATE (3:35 PM): We have offered Professor Jones a guest post on Above the Law in which to provide his side of the story, about either the lawsuit or the underlying facts. We have offered to keep the comments on that post closed or open, depending on his preference. (And we would have done this in the first place, had he made such a request.) ...
Marc Randazza, who represented us in this matter, had this to say:
I’m relieved that Mr. Jones came to his senses. We were prepared to file a motion to dismiss and a motion for sanctions, and we were confident that both would have been successful. I am consistently unimpressed by academics and anti-speech parties who think that the courts are there for the redress of foolishness, not the legitimate redress of valid legal grievances.
We discussed this case in this thread.
I just learned about this, thanks to Gabriel Malor:
(Obligatory punctuation nod to the “blog” of “unnecessary” quotation marks.)
Here’s the text of the ordinance:
(a) For purposes of this section:
1. “Silly String” shall mean any putty-like substance that is shot or expelled in the form of string from an aerosol can or other pressurized device, regardless of whether it is sold under the name “Silly String” or any other name.
2. “Hollywood Division” shall mean the area defined by the Los Angeles Police Department as the Hollywood Division, the geographical boundaries of which include all of that portion of Los Angeles City bounded and described as follows: Beginning at the point of intersection of Beverly Boulevard and Normandie Avenue, and proceeding northerly along Normandie Avenue to Franklin Avenue, and proceeding westerly along Franklin Avenue to Western Avenue, and proceeding northerly along Western Avenue to Fern Dell Drive, and continuing northerly along Fern Dell Drive to its terminus, and proceeding due north through Griffith Park to Forest Lawn Drive at its intersection with Zoo Drive, and proceeding westerly and southwesterly along Forest Lawn Drive to Barham Boulevard, and proceeding southerly along Barham Boulevard to United States Highway 101, and proceeding southeasterly along U.S. Highway 101 to Mulholland Drive, and proceeding westerly along the various curves and courses of Mulholland Drive to the Crest of Ridge, and proceeding southerly following the Los Angeles city line along the eastern border of the Trousdale Estates area of the City of Beverly Hills to the northeast corner of the City of West Hollywood, and proceeding easterly following the Los Angeles city line bordering along its various curves and courses of the northern border of the City of West Hollywood to the eastern border of the City of West Hollywood that is to the east of La Brea Avenue, and proceeding southerly along the Los Angeles city line to Romaine Street, and proceeding westerly following the Los Angeles city line along its various curves and courses to the intersection of Romaine Street and La Cienega Boulevard, and proceeding southerly following the Los Angeles city line along its various curves and courses to Beverly Boulevard, and proceeding easterly along Beverly Boulevard to La Brea Avenue, and proceeding northerly along La Brea Avenue to Willoughby Avenue, and proceeding easterly along Willoughby Avenue to Hudson Avenue, and proceeding southerly along Hudson Avenue to Melrose Avenue, and proceeding easterly along Melrose Avenue to Gower Street, and proceeding southerly along Gower Street to Beverly Boulevard, and proceeding easterly along Beverly Boulevard to Normandie Avenue.
3. “Halloween” shall mean the 36-hour period from 12:00 a.m. on October 31st of each year, through 12:00 p.m. on November 1st of each year.
(b) No Person, as defined in Municipal Code Section 11.01(a), shall possess, use, sell or distribute Silly String at, within or upon any public or private property that is either within public view or accessible to the public, including, but not limited to, public or private streets, sidewalks, parking lots, commercial or residential buildings, places of business, or parks within the Hollywood Division during Halloween.
(c) Any violation of this section is a misdemeanor subject to the provisions of Los Angeles Municipal Code Section 11.00(m).
UPDATE: The repeal just passed 2d reading by a vote of 164 to 137! The bill now proceeds to a committee for public hearings. The Canadian Conservative Party has 143 Members of Parliament, so the bill attracted over 20 votes from members of other parties–significantly more than had been expected by Canadian political commentators. Today is a good day for Liberty.
Will take place in the Canadian House of Commons today, at approximately 5:30 p.m., Eastern Time. Bill C-391 is a private member’s bill (by Candice Hoeppner of Portage—Lisgar, Manitoba) to repeal Canada’s failed and extremely expensive long gun registry.
Background information about the registry is available in this short presentation from Prof. Gary Mauser, a magazine article by Mauser, and in Mauser’s journal articles on the politics and efficacy of the registry, and in some articles I have written about Canada.
For the last two decades, Canada has been the test bed of the international gun prohibition movement. Repressive ideas from Canada have been exported around the world by the international gun prohibition lobby, which is vastly better at international coordination than the other side.
Repeal of the Canadian registry would, accordingly, be of tremendous global significance. Repeal would also shatter the claim by the Canadian gun prohibition lobby that gun control in Canada is an irreversible ratchet.
If the House votes for repeal today, then there will be committee hearings on Bill C-391, followed by another vote in the House, followed by Senate consideration.
You can follow a webcast of the House of Commons by going here.
Tags: Gary Mauser
The 53%-47% loss for gay marriage in Maine is a beginning, not an end. We have been down this road many times, with gay-equality advocates losing the first (or first few) rounds in popular referenda on lots of issues other than marriage. In fact, gay-rights measures historically have not fared well in popular votes. In Maine in the 1980s, the state legislature passed a state anti-discrimination law, only to have it rejected by voters. It passed the law again, and voters rejected it again. It passed the law a third time, and voters approved it. After that, it was never repealed. A similar pattern might be reproduced with gay marriage in that state. A narrow loss can be made a narrow win. It’s coming.
There will be the usual post-mortems about the campaign in Maine. My sense from a thousand miles away is that “No on 1″ did a pretty good job of raising money, running an ad campaign, and operating a get-out-the-vote field effort. (Disclosure: I contributed to No on 1.)
Some will say that we should have included broader protection for religious liberty in the legislature’s SSM bill. But I don’t get the sense that the supposed erosion of religious liberty was the main Maine issue or that broader protection would have made an electoral difference. The battle also wasn’t about procreation or slippery slopes, which never featured in ads. And it wasn’t about the possibility that SSM might send a “message” that family structure doesn’t matter. People don’t really buy the notion that granting legal protection to existing families could send that message, any more than allowing second marriages or step-parent adoptions sends a message that it’s unimportant to have married biological parents raise their own offspring.
Instead, the central concern seems to have been what will be taught in public schools to children being raised by heterosexual parents. In one sense, it’s an odd focus for a debate about SSM. Once again, as in California, but with even less justification, SSM opponents falsely but effectively claimed that allowing gay couples to wed would mean “teaching” gay marriage in public schools when in fact kids will be taught about the existence of gay marriages in any event.
In another sense the obsessive focus on what’s being taught to kids is understandable because of its long historical pedigree. The not-so-subtle subtext of the debate over public schools, which has poisoned every public policy debate involving homosexuals, from decriminalizing sodomy to passing antidiscrimination laws, is that the gays are coming to get your kids. Exactly what “coming to get your kids” means will vary from person to person, but it’s not something parents want to chance.
It’s hard to counter that message without admitting a core truth: that allowing gay marriage will mean kids will think somewhat better of homosexuals. That’s a benefit of SSM, though not the most important one. SSM advocates haven’t quite figured out how to say that softening anti-gay attitudes will make us better citizens without making kids into little Liberaces.
Maine was disappointing, though the bigger loss for SSM may have been the defeat of a pro-SSM governor in New Jersey, where the campaign had nothing to do with SSM and the governor ran under the slogan, “my opponent is a fatso.” The New Jersey legislature may yet enact an SSM bill in the lame-duck session, but that’s far from certain.
Something is turning in this debate, though. With close popular votes in two states in the last year, little prospect of additional anti-SSM state constitutional amendments, coming legislative action in more states and D.C., the first-ever electoral victory for civil unions in an election last night in Washington state, gay marriage completely secure in four of five states that still have it, and a federal marriage amendment in rigor mortis, the question is not really whether, but when and where next.
In the past two posts, I outlined the Institute for Justice’s constitutional challenge to the bone marrow provision of the National Organ Transplant Act. In short, our clients want to use strategic incentives such as $3,000 scholarships to incentivize more lifesaving bone marrow donations, but doing so is considered criminal organ-selling.
Today, I’ll discuss the standard of review that applies to the bone marrow case, called the “rational basis test,” and critique the constitutional philosophy known as judicial minimalism. Tomorrow, I’ll talk about how principled judicial engagement works (as opposed to judicial activism, which is a legitimate, though overblown, concern).
The bone marrow case is about unenumerated rights so before getting to the rational basis test, let’s briefly discuss unenumerated rights. Among some conservatives, unenumerated rights are met with glib dismissal, often along the lines of “Last time I checked, the Constitution didn’t say anything about [asserted right X].”
But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope. Who doubts that we have the right to travel or vote or raise children? The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).
In terms of the bone marrow case, the right at stake is the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment. Is there serious doubt that this right exists? Suppose Congress passed a law forbidding doctors from providing medical treatment to the sickest or oldest Americans in an effort to control healthcare costs. Wouldn’t that obviously violate the rights of doctors and patients? Until Congress enacted NOTA in 1984, the right of a parent like our client Doreen Flynn to secure otherwise legal medical treatment for her girls had never been conditioned on someone doing something for free.
The history of the Constitution supports unenumerated rights. Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.
Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole. The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers. Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties. Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.
Unenumerated rights are in the Constitution. But here’s something that isn’t: the rational basis test. Applying the rational basis doctrine to unenumerated rights emerged out of a series of 1930s cases, particularly Carolene Products and its infamous footnote four, which collectively stand for the proposition that legislation will be upheld as long as there is a rational basis for it. In an economic liberty case in 1955, Williamson v. Lee Optical held that a law need only have a “conceivable” rational basis, meaning that the actual purpose and effect of the law, and the facts of the case, supposedly don’t matter much. (Justice Douglas, who wrote Williamson, conveniently forgot about the rational basis test a decade later when he came across an unenumerated right he liked in Griswold v. Connecticut: privacy in the context of contraceptive use). In modern rhetoric, social and economic legislation subject to an unenumerated rights challenge will be upheld unless the plaintiff can “negative every conceivable rational basis for it,” whatever that means. Conventional wisdom holds that this is really just code for the government always wins.
This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention. Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).
There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done. Why is the truth antithetical to constitutional adjudication?
Not even the Supreme Court believes its own rhetoric about blind deference to legislatures. In the context of rational basis review, the Court pretends that legislative acts embody popular will and were created through a deliberative legislative process that must be respected at all costs. But in the campaign finance context, the Court uncritically accepts the premise that legislatures are corrupt or seem corrupt, and thus upholds massive restrictions on the First Amendment. How can the Court possibly reconcile its view of politics in the campaign finance context with its Pollyanna-perspective on legislatures in other contexts? (For the record, the solution to corrupt and activist legislatures is constitutional limits on their power, not campaign “reform” laws that vitiate rights to speak, assemble, and petition the government).
And if the rational basis test is so great, why not have it for everything? Pick a right you like and then think about what it would mean for that right to get rational basis review?
Fortunately for liberty and our clients in the bone marrow case, the Supreme Court also doesn’t believe its own rhetoric about the rational basis test. After all, if the standard were truly that government power will be upheld unless the citizen can “negative” every “conceivable” justification, then citizens would never win rational basis cases.
But they do. The Supreme Court has invalidated at least a dozen laws under the rational basis test. And there are literally hundreds of federal and state trial and appellate decisions doing the same in an array of contexts. They don’t do it often enough to provide our liberty with the protection it deserves, but courts certainly do protect citizens from irrational, arbitrary, and otherwise illegitimate uses of government power.
Tomorrow, I will discuss principled judicial engagement in the context of the bone marrow case and how to avoid falling into the trap of judicial activism.
As noted by Orin below, Marc DeGirolami tries to provide a global answer to that question that often bedevils academics, i.e., who cares? For the reasons that Orin and the commenters suggest, I don’t think DeGirolami’s answer is successful.
On the other hand, law professors like myself who write about legal history have good reason to be frustrated by the “who cares” question. Start with the basic premise that law professors are hired to teach and engage in legal scholarship, and that legal scholarship should be judged by the same sort of standards by which other types of humanities scholarship is judged. Good legal history written by a law professor, in other words, should be basically the same as good legal history written by a history professor.
If a member of a history faculty writes a brilliant analysis of the history of the use of the Magna Charta in American constitutional debate, no one in his department is going to say “who cares?” The analysis will be appreciated as a contribution to the world’s store of knowledge.
But imagine that a young legal historian writes the same brilliant analysis, which he uses as his job market paper. At both his AALS interview and his job talks, he is going to be peppered with various versions of the “who cares” question. His advisors will tell him he needs a “hook” to some modern debate to answer this question. So he’ll add some sort of strained analogy to a modern constitutional controversy to show how the paper is relevant to current legal debate. If the candidate appears to have an ideological edge to him based on his resume, many of the professors judging his candidacy will try to decode the paper for secret meanings (“this paper is obviously a subtle attempt to use the history of the debate over the Magna Charta to undermine the legitimacy of Roe v. Wade!”)
In other words, despite the general trajectories of law school faculties from the trade school model to a more standard academic model, many law professors have not fully assimiliated academic standards in judging scholarship, and instead assume (a) that legal scholarship lacks merit if it doesn’t relate to an ongoing controversy; and (b) that all legal scholars should be, and are, motivated by normative concerns, rather than the pursuit of knowledge.
Indeed, it’s still entirely possible at many law schools to get an academic job by writing what one might call “lawyer’s scholarship”: finding an ideologically congenial position about a current controversy in the law, and arguing backwards from one’s conclusion, as if one were writing a legal brief. In other words, to show you’re a good advocate, but not necessarily a good scholar.
I know that many readers of the VC think that law schools should be organized on the trade school model. That’s a separate debate. But it strikes me that if law schools purport to be organized on an academic model, a proper answer to the “Who Cares” question should be, “this doesn’t directly relate to any current legal controversy, but it’s an important contribution to our knowledge of ....” I hope members of hiring committees attending the “meat market” this weekend keep this in mind. (There’s the “hook”!)
UPDATE: Paul Horwitz has related thoughts.
Congratulations to VA’s new AG, Ken Cuccinelli who, to the best of my knowledge, becomes the first George Mason law school alumnus to be elected to state-wide office in Viriginia. He bested alumni of William & Mary and UVA in the primaries. GMU is a relatively young law school and this is a proud day for us.
In an interesting post on the goals of legal scholarship, Marc DeGirolami writes:
[It] doesn’t particularly matter to me who is or is not interested in my ideas. It probably is true that I hope vaguely that someone, somewhere, now or in the future, will be interested in them. If no one ever thought them at all interesting, I would likely find that regrettable. But I do not write with the purpose to address a particular audience. Even when something I write addresses a particular scholar’s claims, I do not take that scholar, or his epigones, to be my audience. In fact, I usually give no thought at all to whom I am writing “for.”When I write, I don’t really care who cares, or why they care, or whether someone will care in the future for reasons I cannot guess. I am not writing with the practical aim of influence in mind, or with an ulterior motive, or with the hope that I will make it easier, or harder, for pastry chefs to frost cakes with greater velocity or skill. This is different, I think, than saying that one ought not care if one’s ideas are put to deeply harmful use, or that one ought to be utterly indifferent to the consequences of one’s ideas. Rather, it is to say that one should not have as one’s conscious writing object the excitement of anyone’s cares.
I look at this differently. I think that inherent in legal writing is writing for an audience. Legal writing is a type of argument, and arguments are made with audiences in mind. Of course, that doesn’t mean you know exactly who the audience is, or that you write with a specific reform in mind. And it doesn’t mean that you express an idea you don’t actually believe in just to please or influence the audience. But I think it does mean that a sense of the audience is inherent in the enterprise.
Imagine yourself as an author sitting down to start a new law review article. At the most basic level, you need to choose a language. You need to pick a level of complication in your language. You need to know how much to explain concepts, and how much to take things for granted. You need to have a sense of what claims readers will find obvious, what claims readers will find arguable, and what claims readers will find simply batty. You need to have a sense of how the reader is likely reacting to your argument as the reader delves into it, so you can take the reader on a clear path through the argument.
All of these steps require at least a vague sense of who the readers are. It requires the author to have a sense of how likely readers will experience reading the article so the author can try to help them understand the claim and persuade them that it is true. The sense of readers can be very general, of course. Perhaps it is just “law school hiring committees,” or “other lat-crit professors,” or “the kind of people who read law review articles about insurance contracts.” And perhaps, for some writers, the audience is really just themselves. They want to read over their work when it’s done and feel that the article genuinely reflects their own experience with the argument. But I think that’s an audience, too, albeit a small one.
Anyway, these are big issues, and no doubt others have expressed these views far better than I have. But I did want to briefly post about the issue — written, of course, with the readership of the Volokh Conspiracy in mind.
NY-23: Winning Democrat Bill Owens was A-rated by NRA (as was Hoffman).
Virginia: Either Deeds (B rating) or McDonnell (A) were sure to be a big improvement over outgoing Governor Kaine. Deeds lost the NRA endorsement by supporting closing of the (non-existent) “gun show loophole.” In the Attorney General race, Republican Ken Cuccinelli (A+) handily defeated a D-rated Democrat who advertised very aggressively on the gun show issue. Incumbent Lt. Gov. Bill Bolling (A+) trounced an F-rated challenger.
In the Virginia House of Delegates, five Republican challengers with A ratings ousted Democratic incumbents rated F,F,B,B,B. A C-rated Republican also unseated an F Democrat incumbent. The House of Delegates already had a fairly solid pro-Second Amendment majority, so the major change in Virginia is a new Governor who, like former Governor and current Senator Mark Warner (Dem.), will sign rights-enhancing legislation passed by the legislature.
By far the most prominent gun control advocate on the ballot this year was Jon Corzine (F). This summer, Corzine twisted lots of legislative arms to win enactment of gun rationing (“one-handgun-a-month”), a silly law that is even sillier in New Jersey, where every handgun purchase requires advance permission from the local police chief. With Christie replacing Corzine, New Jersey gun owners can hope for benign neglect rather than active hostility. The New Jersey Assembly appears to be unchanged.
In sum: A bad night for advocates of gun show restrictions. Another fine night (as were election nights 2006 and 2008) for Democrats with A ratings from NRA. And good news for Second Amendment advocates in blue New Jersey and purple Virginia.
