[Sasha Volokh, 11:30 AM]
NOLLAN, NOLLAN, NOLLAN: Garrett, don't go around confusing libertarians with conservatives! (Now, normally I would just write Garrett an e-mail about this, and during the school year, I'd just shout it across the room. But this is blogging! A rising tide lifts all boats!) Garrett writes:

[Brian Doherty, in Reason], sees no difference between a conditional grant (if you want [a permit to build a bigger house], you must agree to [a public beach-access easement]), and simply demanding [the easement]. In general, I agree -- conditional grants are often just as bad as direct compulsion. But I don't think you'll see Reason so quickly conflating outright demands and conditional grants when we're talking about welfare given on condition of the recipient surrendering some constitutional right. See, e.g., Wyman v. James, 400 U.S. 309 (1971) (upholding condition of receipt of Aid to Families with Dependent Children on acquiescing to warrantless searches). When it comes to conditional grants of welfare, most conservatives will suddenly forget the Nollan logic, and make a big deal of the compulsion-vs.-conditional grant distinction. When it comes to welfare, conservatives in general suddenly start treating the condition as increasing the choices of the welfare recipient.

First, Reason is not, not, not a conservative magazine, and (I'm going to put words into Brian's mouth here, but I hope he'll forgive) Brian Doherty is not a conservative. (See Brian's Ashcroft-bashing here and here, defense of Eminem against Lynne Cheney, and Burning Man travelogue.)

Second, it's true that libertarians draw a sharp distinction between extending your house (presumptively a right) and getting welfare payments (presumptively not a right). But (and again, I haven't talked with Brian about this, but I think he'll agree) why does that imply that the government should be able to condition either the recognition of a right or the granting of a benefit on acquiescence to warrantless searches????

Let me refer back to the spiritual father of libertarian lawyers, Richard Epstein. It's been a while since I read his book Bargaining with the State, which was an extended treatment of what strings the government should be able to attach to anything, but my general recollection is that he said that as a first cut (though there are some principles that would allow you to violate this in certain cases), the government's strings should be treated as no more or less permissible than a direct mandate. (So, attaching a property exaction to a zoning permit doesn't relieve the exaction of Fifth Amendment requirements, just as attaching a search condition to a welfare grant doesn't relieve the search of Fourth Amendment requirements.)

Incidentally, though I guess this is something for a future post someday -- I generally think the Court is too soft on the spending power, whether it's arts funding, "commandeering" the resources of states by threatening to withhold highway funds, or allowing tax deductions for charities on the condition that they don't spend their money lobbying -- but I think that's not so much about disliking poor people and more about not wanting to go the extra mile and limit "too many" government activities.

Putting points one and two together, I'm sure you can find some conservatives who agree with both Nollan and Wyman, both on constitutional grounds (for instance, the late Justice White, who voted with the majority both times) and on policy grounds. But Reason is the wrong place to look for such conservatives, who have their own publications (here, here, here, here, here . . .).

By the way, Garrett, in an adjoining post, questions my bald eagles post, on which, see below.

UPDATE: The Criminal Justice Legal Foundation, a conservative criminal law outfit, has a section of an amicus brief online where they discuss the doctrine of unconstitutional conditions and why they think it should be limited to the First Amendment. I haven't read it and don't know what the arguments are exactly, but it does mention both Nollan and Wyman, and, who knows?, might even be a conservative data point for Garrett. (I think, from scanning the document, that they distinguish Nollan and Wyman using some rights vs. benefits distinction.)

UPDATE 2: Garrett responds -- he didn't actually say Reason was conservative (though he "grant[s] that the implication was there"); he just thought at the time that both Reason and conservatives would favor conditions on government benefits. (Concrete evidence that Reason does not, at least as far as you can talk about a magazine's "views": See editor-in-chief Nick Gillespie's article on school drug testing.)

He also takes issue with my dictum above about extending your house being "presumptively a right" and getting welfare benefits being "presumptively not a right," but I think we're talking about two different concepts of rights. He says, "Libertarians think property exists in nature, but that simply isn't true. Along with being protected by the state, property is defined by the state." So he has a positive view of property and rights. I'm talking about the moral concept of property and rights (i.e., whether the government should protect a would-be landowner's claim in the first place), which, like all moral concepts (e.g., right to life), doesn't exist in nature but may exist in a pre-political moral theory. But that is a huge topic and may be something for a future post someday.

 
[Sasha Volokh, 11:03 AM]
THE PROPHET: The Region, the publication of the Federal Reserve Bank of Minneapolis, has a nice interview with Gary Becker, one of the founders of law and economics, and in fact of [fill in the blank] and economics as a research program. Becker has good things to say about what got him into the field, the future of law and economics, the promise of behavioral economics, anti-discrimination policy, and bailing out large banks and countries.

 
[Sasha Volokh, 9:57 AM]
TEXAS RANGERS AND IRON GIANT: Ryan Nunn at PostPolitics links to Eric Alterman, who says:

While Bush claims publicly to �do everything I can to defend the power of private property and private property rights,� he and his partners in the Texas Rangers arranged for Texas authorities to expropriate private land to allow the investors their new baseball stadium. When some resisted, or balked at the low prices being offered, their land was condemned and expropriated it by force of law. This occurred on 270 acres of land, even though only about 17 acres were needed for the ballpark. The rest was used by Bush and Co. for commercial development, and has provided the basis of his personal fortune.

I couldn't find any Eric Alterman archives on the MSNBC site, but the same text is quoted from him elsewhere on the web. Anyway, if it's true, I disapprove. Meanwhile, Ram Ahluwalia, also one of the PostPolitics co-conspirators, likes The Iron Giant as a commentary on intrusive American government. Self-plug: On which, see my article on the treatment of environmentalism and property rights in Pocahontas, The Lion King, and The Hunchback of Notre Dame.

 
[Sasha Volokh, 9:21 AM]
FEELING IN A SUBJUNCTIVE MOOD: In The Guardian, "The Lavender of the Subjunctive" by Cambridge English professor Eric Griffiths, a review of The Cambridge Grammar of the English Language by Rodney Huddleston and Geoffrey K. Pullum. It's about the pluses and minuses (plura and minora) of "synchronic, descriptive grammar."

The Cambridge Grammar is "descriptive" -- as Scalia says of Webster's Third in MCI v. AT&T (1994), it "portray[s] common error as proper usage." So it cheerfully reports that English has lost the subjunctive or that nowadays it's fine to say "They invited my partner and I to lunch." Griffiths explains:

For descriptive grammarians, "grammaticality" is distinct from "correctness" because, from the standpoint of quasi-anthropological neutrality proper to their task, in language whatever is accepted is acceptable. Advice about style amounts to no more than "aesthetic authoritarianism" or "taste tyranny", "a universalizing of one person's taste, a demand that everyone should agree with it and conform to it". We hang on the words of style gurus about everything from trainers to varieties of olive oil, but on the subject of our language there is nothing to say, only market research to report.

Now, I'm all into descriptivism -- if speakers of English start to use something, it's English . . . or are we to revert to Middle English and start talking Chaucer, not that there's anything wrong with that? (Of course we'd have to go all the way back to Aelfric and beyond and speak Old English, and I'm only stopping there to keep things moving, plus I can't personally go back any further.)

Note that even on descriptivist grounds, the Cambridge Grammar may fall short -- Griffiths accuses them of insisting on "usage" and ignoring "usages," that is, traditional or historical usages that are still around today:

"Actual" usage is anyway not the thin, consistent layer a systematic grammar unearths, but resembles rather Freud's metaphor for the mind as a Rome seen by an eye that pierces through time: "an entity, that is to say, in which nothing that has once come into existence will have passed away and all the earlier phases of development continue to exist alongside the latest ones". The usage of those who abide by exploded, traditional rules is usage still; maiden aunts who would rather expose themselves at evensong than ask for "a large quantity of stamps" should be equal in the eyes of historical description with those who don't even remember that "agenda" was once a plural and feel they need an s for the agendas they progress through.

And more generally, Griffiths argues, you need to know even some of the rules that aren't much respected anymore, both in literature, to understand subtle nuances of meaning from times when the rules were still in force (he gives the example of the first paragraph of Dickens's Bleak House, which is one of my favorite novels), and in everyday life, because there are subtle nuances of meaning that you can convey if you know how (he gives the example of the Pet Shop Boys and others).

But there's more to life than just descriptivism. While I think of myself as a radical descriptivist, I'm also a prescriptivist, and we all are, since we have preferences about how to speak or write English well or properly or whatever adverb you feel like substituting here, and we have opinions about how other people speak or write English. In fact, as an editor, that's all I do, is prescribe:

We should not expect too much from linguists; they are witnesses not judges. Yet even the members of this excellent Cambridge team sometimes fail to confine themselves within the narrow bounds of testimony. They rightly decline to prescribe usage, but they exceed their remit when they proscribe prescription, for it is a fact of language use that writers and speakers concern themselves with more than information throughput and grammaticality as strictly understood.

When we disagree about such phrases as "my partner and I", this may be a matter of taste, but from that it does not follow, as the editors assume, that "all evidence" is simply "beside the point".

But . . . there are some who prescribe rules just because they're traditional (i.e., invented in the 17th century) (such as no preposition at the end of a sentence or no split infinitives) . . . and there are others who prescribe rules for functional reasons, like to avoid ambiguity or awkwardness (i.e., you should almost always eliminate "the fact that").

That's why I don't like the standard distinction between descriptivists and prescriptivists -- descriptivism is what you should do when writing a dictionary, prescriptivism when writing a style guide. There's certainly a notion of "correctness" to be taught -- for instance, if you're going to spend time in the inner-city ghetto, I'd advise you not to use the word "whom," and if you're going to go to a Renaissance Faire, you should learn conjugations in the "thou" form. And as I noted above, everyone should try to cut out "the fact that" in speech and writing. We have a word for "due to the fact that" -- it's "because" or "since." ("Because of the fact that"? That's as bad as "It is the case that"!) "Despite the fact that" -- "though," "although," "even though." Even just "the fact that" [Ma'am] can usually be cut out (see also here, here, and here) for a shorter, punchier, more effective sentence.

After all that, must I turn in my descriptivist card? The true battle is between the prescriptivists who blindly serve Tradition and the prescriptivists who, spurning Tradition as a source of inherent authority, only care about effective communication.

UPDATE: My friend Katie Alex points out that while Griffiths says --

[Is "preserve" in a poem being discussed an indicative or subjunctive?] The Cambridge Grammar rightly doubts that "present-day English" can be grammatically analysed in this way, because "historical change has more or less eliminated mood from the inflectional system", and it sensibly re-describes "subjunctive" as "the name of a syntactic construction - a clause that is finite but tenseless, containing the plain form of the verb".

-- he nonetheless later says, when talking about the Pet Shop Boys:

The syntax [of a PSB song that seems ungrammatical] is not what it seems; "one in a million men" is not the subject of a sentence which continues "change the way you feel". "One in a million men" is a vocative, an address to the new, perhaps permanent lover; "change the way you feel" is an imperative, addressed by the singer to the two of them (as is clear if you listen to the middle eight).

Demands Katie: "Now who is he to go invoking the imperative as a justification for interpreting 'one' when he just dissed and dismissed mood? Hello, if mood doesn't exist YOU AIN'T ALLOWED TO USE IT TO DEFEND YOURSELF, PUNK. Ironically, in the second paragraph of this whole thing he says, 'I struggle on with my round shoulders and inculcated dislike of the "split infinitive", and Sir Paul still has the big grin.' How can he dislike something that, in his book, doesn't even exist? How quickly he forgets that infinitive is a mood!"

Katie acknowledges that maybe Griffiths thinks the imperative and infinitive are merely "syntactic constructions," but feels he is "cheaply copping out": "If you're gonna use them to back your arse up, acknowledge them."

 
[Sasha Volokh, 7:39 PM]
NOT ABOUT TERRORISM: Bruce Bueno de Mesquita (the father of a classmate of mine) and Hilton Root have an article in The National Interest about the political roots of poverty. It starts out discussing the connection between poverty and terrorism (see a past post of mine), but that's just an excuse for talking about the connection between political systems and poverty (you've got to drop a bone to Sept. 11 these days to get published, I guess), why foreign aid often doesn't work, why the countries that can use foreign aid the best are the ones that need it the least, how foreign aid can hinder good reform, and how to structure foreign aid when dealing with autocracies.

 
[Sasha Volokh, 6:15 PM]
SOMEONE WHO SAYS SENSIBLE THINGS: Jessie Rosenblogger says some sensible things about tag and toll roads.

 
[Sasha Volokh, 2:25 PM]
NEW DEVELOPMENTS IN SCHOOL CHOICE: The Ninth Circuit has just invalidated a "Washington State law that singles theology students out for exclusion from college benefits that are available to all other students," the Institute for Justice writes. The case is called Davey v. Locke, and here's the opinion. IJ writes:

The State of Washington attempted to justify the discrimination under the religious establishment clause of its state Constitution, which contains one of the most notorious and broadly construed Blaine Amendments in the nation.

Blaine Amendments are provisions in about three dozen state constitutions that prohibit aid or support of religious schools. They arose in the 19th century as part of an anti-Catholic effort to preserve Protestant hegemony over public schools. Although several state supreme courts, including Arizona and Wisconsin, have interpreted Blaine Amendments narrowly in upholding school choice programs, the teachers� unions have promised to use them to challenge such programs. . . .

In yesterday�s decision, Davey v. Locke, Judge Pamela Rymer found that the discrimination triggers strict scrutiny under the free exercise of religion clause of the First Amendment. The question as framed by the Ninth Circuit was whether the state�s interest in enforcing its constitutional provision, �no matter how stringently construed, is compelling enough to outweigh a credible free exercise challenge under the federal Constitution.� The Court concluded that �Washington�s interest in this case is less than compelling.� In other words, the Blaine Amendment must yield to the federal constitutional command of nondiscrimination.

The opinion relied in part, as you might imagine, on Zelman v. Simmons-Harris, the recently decided Supreme Court case on school choice. Here's a rundown of IJ's new Blaine Amendment strategy for school choice.

UPDATE: I don't know why I took the trouble to find the opinion on my own, because of course, How(ard) Appealing had the scoop on this yesterday.

 
[Sasha Volokh, 9:58 AM]
MERCHANTS OF ESPRESSO: Jeremy Lott writes about the proposed Washington state espresso tax, and notes (my emphasis):

[The anti-caffeine] campaign, in its most undiluted form, was on display in a 1997 cover story in The Nation, "Generation Wired." Author Helen Cordes wrote about the perils of "Caffeine Inc." -- "soda barons" and a "proliferation of coffee shops" -- which is "targeting teens" with "aggressively marketed" caffeinated beverages that near the "legal limit" for added caffeine (6 milligrams per ounce). "The caffeine lobby," Cordes wrote, had even "borrowed a tactic or two from the nicotine gang" by financing its own scientific studies to rebut public health experts. (Which brings to mind an old saying so cynical that it has to be French: "What a wicked animal. When attacked it defends itself.")

 
[Sasha Volokh, 9:56 AM]
GOOD STUFF IN REASON: Brian Doherty writes that Malibu liberals are getting religion on property rights; meanwhile, Hans Eisenbeis mounts a cultural defense of the SUV.

 
[Sasha Volokh, 8:43 AM]
GROWING THE ECONOMY: Secretary of Energy Spencer Abraham says that two new coal combustor gadgets "will help achieve President's Bush's goal to grow the economy through use of cutting edge technologies that are more efficient."

Does anyone else hate that expression, "grow the economy"? This isn't just a Spencer Abraham or George Bush thing -- I heard it several times during the Clinton Administration, and if you want extra examples where people use it, try here, here, here, here, here . . . .

(How about "focus like a laser beam" on the economy? That's especially good if you make air quotes around the word "laser" . . . .)

 
[Sasha Volokh, 7:35 PM]
FIGHTING FOR FREEDOM IN TEXAS: Two bald-eagle shooters have been fined in Texas. Fish and Wildlife Service special agent says:

"I think it's just a wanton disregard for wildlife. Certain individuals believe hawks and owls can be shot if they are protecting their livestock. This is wrong and it's illegal," said USFWS special agent Steve Hamilton. "There are other means and measures that need to be taken than just grabbing a gun and shooting something."

Tony Norton, Texas Parks and Wildlife Department game warden said claiming to mistake the eagles for hawks is no excuse for the shooters' actions.

"I'm sorry, but if anybody can't recognize our American symbol of freedom, they're in a bad way. And if they don't know what they're shooting at, they have no business shooting," Norton said. "We've got laws that govern any kind of shooting of animals and people need to know what they are."

Some way to protect our American symbol of freedom, especially in Texas. Is this kind of like sovereign immunity? What if it's expressive conduct?

UPDATE: Garrett says he doesn't see the big deal with the above item. First, he says, shooting bald eagles is a crime (and the punishment in this case wasn't terribly high relative to what's allowed in the statute); and second: "When the government requires you to try potentially less effective methods than shooting to deter bald eagles to protect your property, and as a result more of your livestock dies than might otherwise die, there's a pretty decent argument that that's a taking."

Good points. And while Garrett has a good argument that this should be considered a taking, my impression is that this isn't the current state of the law. I don't have a source that will tell me that in so many words, but here are three exhibits: (1) Utah regulations providing for 50% compensation for damage caused by bears or mountain lions; (2) a discussion by Defenders of Wildlife of their Wolf Compensation Fund, compensating livestock producers at market rates for damage caused by wolves in Yellowstone and central Idaho; and (3) a quote from a sheep industry spokesman on the Predator Defense Institute web site arguing that such attacks should be considered takings.

So, given that compensation will probably not be forthcoming, it's no answer to say that "it's a crime," because that's precisely what I'm questioning. If I think some bird of prey is threatening my livestock, I should be able to shoot it. O.K., maybe, just for the sake of argument (but not necessarily in reality), I'll assent to some rule like it has to really be about to attack before I can shoot (the article is unclear on how real the threat really was in that case). But there has to be some right to protect my livestock before it gets killed and eaten, or else I'll demand the compensation.

Now the government can go and make laws criminalizing this sort of behavior, but then I object to justifying the punishment in the same breath as the words "American symbol of freedom." Two words: flag burning.

 
[Sasha Volokh, 6:19 PM]
ONLY YOU CAN STOP FOREST FIRES: Here's an article about whether the environmentalists caused the forest fires. There's a Forest Service report on the one hand saying it's those damn environmentalists appealing all our controlled burn decisions, and then there's a conflicting report from the GAO using a broader set of controlled burn decisions saying they didn't appeal all that often. I don't know who's right, but I don't trust the GAO so much, since they came out with a badly done report on private prisons in 1996. By the way, Kim Strassel of OpinionJournal has a discussion of this, though it still doesn't shed much light on who's right.

UPDATE: Seth Farber notes that the fires were caused by "those DAMNED FIREFIGHTERS" (click here for Colorado and here for Arizona). Of course, there's always too much causation to go around. The question above, though, is whether the environmentalists are what we in the legal biz would call the "but for" cause, even if not the "proximate" cause. (Heh-heh. I said "but for.") By the way, here's an article saying that the general idea that firefighters are more likely to start fires is an urban legend, well maybe not urban, I don't know. . . .

 
[Sasha Volokh, 11:36 AM]
THANK GOODNESS FOR INDIANS: Through Hanah, the inspirational story of how discount cigarette vendors on Indian reservations, and tobacco web sites, "are making big bucks thanks to an explosion in cigarette tax hikes this year." Also related to Indians, also through Hanah, the history of chocolate.

UPDATE: See Jacob Sullum's and Joel Miller's articles on cigarette smuggling in New York and Britain, respectively. This is a lucrative business!

 
[Sasha Volokh, 11:29 AM]
FTC GROWS AGGRESSIVE ON MERGERS: Beware -- the FTC, in what's been called the antitrust "sleeper" case of the year, has gone after MSC.Software Corp., which produces engineering simulation software used in the aerospace and auto industries. MSC acquired its two rivals a few years ago. The two acquisitions were below the mandatory reporting limits in the Hart-Scott-Rodino Antitrust Improvements Act -- you have to notify the FTC in advance if your merger exceeds $50 million. (The limit was raised from $15 million in 2001, but the MSC mergers were even below the old limits.)

Apparently, the FTC has the authority to review any mergers, but it hasn't been aggressive about the small stuff recently. Now it's getting aggressive:

"We thought it was important to remind people that the Hart-Scott threshold is not an antitrust exemption," said Patrick Roach, deputy assistant director in the Anticompetitive Practices Division in the FTC's Bureau of Competition. "Even when you're below the threshold, the antitrust laws still apply. And if you take the risk of going forward with a transaction like this, you bear the risks of having to get competition back."

How bad is it? In this case, not only do they want to "undo" the transaction -- they want to create even more competition than if there hadn't been any mergers to begin with. MSC used to have 90% of the market. Now the FTC wants MSC to divide itself into three competing companies that would each have about a third of the market.

 
[Sasha Volokh, 11:22 AM]
BEETLE TERRORISM? Environment News Service writes:

More than 120 scientists, along with a variety of environmental and scientific groups, sent a letter to Congress and the administration this week warning that the new Department of Homeland Security could inadvertently open the floodgates to an invasion of harmful pests, weeds and pathogens that already cost the U.S. almost $100 billion per year.

The USDA's Animal and Plant Health Inspection Service (APHIS) and the DOT's Coast Guard, which are part of the proposed Department of Homeland Security, are in charge of preventing and controlling invasive species like the Asian longhorned beetle.

APHIS and the Coast Guard currently prevent and control some of the most harmful invasive species. According to the scientists' letter, "Harmful invasive species brought into this country from abroad have become severe threats to our native species, damaged our economy, and in several cases, such as the Asian tiger mosquito and the Africanized bee, have become public health threats."

The scientists say the "vast bulk" of invasives prevention and monitoring "is not in line with the Homeland Security mission" and that "the work is likely to suffer from the transfer."

 
[Sasha Volokh, 9:50 AM]
SNAKEHEADS: The National Law Journal has an interesting article about snakeheads -- "smugglers who run the lucrative and dangerous underground trafficking in human beings" -- and their lawyers.

These immigrants, mostly Chinese, who come here illegally, have huge debts to the folks who brought them over and essentially go into a period of indentured servitude until the debts are paid off. The article makes some mention of abuses -- some immigrants have been "misled about the dangers of their trip and their living conditions here" (though others "come with their eyes open"); "[w]omen reportedly are increasingly being sold into marriage to men willing to pay part or all of their debt"; and there's a story about some immigrants who got out thanks to one of these snakehead lawyers but were then "held hostage at gunpoint" by the smugglers "and beaten" until the smugglers got the rest of their fee.

But nowhere does the article mention that maybe this whole process is the best hope for the immigrants (most of whom come from Fujian province, one of the poorest provinces of China); that the immigrants might prefer their indentured servitude to what they left behind; that these immigrants come illegally because immigration laws aren't liberal enough to let them in; or that some of these abuses might be caused not by the immigration, but by the criminalization.

The article also notes that "[a]lthough [the snakehead lawyers] nominally represent illegal immigrants who are caught and face deportation, they actually defend the interests of the smugglers, who pay their fees." I'm shocked, shocked! Obviously, the article doesn't hint that the interests of the immigrants -- staying in the country -- may coincide with those of the smugglers; nor does it raise the possibility that even those who were misled about conditions in the U.S. may not want to go back to China. They don't teach us this at law school as an example of good lawyering, but maybe we're just taught to be too respectable.

See also this article on immigrant appeals, which suggests that things aren't getting any better for immigrants. For more on immigrants -- see "Breast Men" by Melinda Ammann; "No Fruits, No Shirts, No Service" by Glenn Garvin; and especially Glenn Garvin's "Bringing the Border War Home" -- even if you only read the first several paragraphs, with the story of Lizbet Martinez.

 
[Sasha Volokh, 9:27 AM]
SUING THE GOVERNMENT: "A New Jersey state appeals court on July 9 recognized for the first time a right to recover against a public entity for pain and suffering that results from medical malpractice, even in the absence of physical injury."

Governments generally have sovereign immunity -- you can't sue them unless they let you sue them. New Jersey has a Tort Claims Act (N.J. Stat � 59:9-2) that bars judgments against public entities on the basis of strict liability, implied warranty, or products liability, bars punitive damages against public entities, and only allows pain and suffering damages against public entities when there's "permanent loss of a bodily function, permanent disfigurement or dismemberment" and where medical expenses exceed $3,600. In other words, the government is exempt from many of the regular tort rules that apply to you and me (or our New Jersey counterparts, though this is actually common).

Sovereign immunity is in fact quite traditional, but it's unclear how to reconcile this with either concepts of tort fairness (i.e., injurers should make their victims whole) or the rule of law (i.e., the sovereign shouldn't be above the law). Richard Epstein argues, in Takings, that limitations on government tort liability (at least when we're talking about torts to property) violate the Fifth Amendment, because destroying property is the same as taking it, so any property tort should require "just compensation."

The New Jersey Supreme Court has extended the reach of the Tort Claims Act by at least allowing pain and suffering damages when the emotional harm happened together with a physical violation, like in Collins v. Union County Jail (1997), where Collins recovered pain and suffering damages after being raped in jail by a corrections officer; and earlier this year, a New Jersey Appeals Court found in Frugis v. Bracigliano that elementary school students who were merely molested, not raped, by their principal could recover on emotional distress claims. Independently, in Giardina v. Bennett (1988) (not a Tort Claims Act case), the New Jersey Supreme Court wrote that the anguish caused by a stillbirth was really really bad.

The judge in this malpractice case, Willis v. Ashby -- which involved a stillbirth in a public hospital -- concluded "that psychological and emotional injuries should be treated the same as physical injuries under the Act's threshold provision when they arise in this context of a stillborn infant, see Collins, especially in view of Giardina's recognition of the potential magnitude of the harm."

[The state defendants' lawyer Thomas] Marshall says the Willis ruling potentially opens up the floodgates of public liability based on understandable sympathy for bereaved parents. He notes that the opinion is devoid of any mention of the burden on the state of paying stillbirth claims.

Hmm, maybe someone should have thought of that before they opened up the floodgates of private liability for emotional harm. Actually, these floodgates are quite possibly good ones to have opened . . . and all the more reason for making the government as liable as anyone else.

Now, the reasoning here may be a bit iffy. Is this a tenable interpretation of the Tort Claims Act? Even if the mental anguish from stillbirth is really really bad, it still seems a stretch to say it's therefore covered by the Act -- even given the relevant New Jersey Supreme Court precedent. And while the Tort Claims Act may be morally bad, the opinion doesn't strike down the Act or make an exception to it based on some other moral or New Jersey or federal constitutional principle. But at least as a matter of policy, this is good news. The New Jersey government is that much closer to living under the same rules as the rest of us.

 
[Sasha Volokh, 3:34 PM]
AYN RAND AND THE CONSTITUTION: The Center for the Moral Defense of Capitalism, an Objectivist outfit, has released its report on the recent Supreme Court term (that link goes to the Introduction; you can also download the full report in PDF there). The CMDC gives the Supreme Court a 55% pro-individual rights rating, and Scalia and Thomas a 75%. I love the idea of a Center for the Moral Defense of Capitalism, but I'm afraid I don't much like their Supreme Court survey.

Here's their characterization of just one case that I now know reasonably well, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (I just read it through last weekend), which they call the Worst of the Term (this is a case where a temporary moratorium on development (between two and six years, depending on whom you believe) was held to be not a per se taking):

In Tahoe[-Sierra] Preservation Council v. Tahoe [Regional] Planning Agency, for example, the Court equated property development with the victimization of nature, promoting specious environmentalist claims and expanding the scope of arbitrary government power against property owners.

Oh dear, that's not at all what the case was about:

• The Court didn't "equate[] property development with the victimization of nature"; they reported factual findings of the lower court and the reason for the Lake Tahoe development restrictions -- these findings may have been wrong ("specious environmentalist claims"?), but they weren't challenged on appeal. Anyway, does the CMDC believe that any taking based on environmentalist claims is unconstitutional?



• Were these "environmentalist claims" (in short, the findings were that property development was increasing runoff and making the lake's waters green and opaque instead of transparent, as they have been traditionally) really "specious"? They seem plausible enough to me; the question isn't whether they're true, but whether the regulation is a taking, which is a quite independent question. Or does the CMDC want the Supreme Court to do its own environmental study to debunk those of the Tahoe authorities?



• At least it's arguably true that the decision expanded government power to regulate without compensation, though I'd rather describe this as clarifying an ambiguity against the property owner. Even so, it's not a wholesale anti-property decision, for reasons I'll go into below . . . .

More importantly, the discussion in the full report seems to mischaracterize the majority decision. The Court didn't say temporary moratoria weren't takings. It just said they weren't per se takings. The standard test for whether a regulation "goes too far" and becomes a taking is a highly detailed, fact-specific inquiry (called the Penn Central test) -- you have to look at the importance of the regulation, whether the regulation violated the landowner's reasonable, investment-backed expectations, and so on. Under Lucas, some of the harshest regulations -- those that ban all use of the property -- get be takings per se, without having to go through the Penn Central test.

The question here was just whether the development moratorium was a per se taking. The Court said No -- it's not automatically a taking; instead, you have to go through the Penn Central test (which, by the way, the property owner had lost under, but he didn't appeal that bit).

Now, there's a lot that may be wrong here -- maybe this should have been considered a per se taking; maybe Penn Central should have been overruled. But the issues here are quite complicated (this all rides on whether rules or standards are more appropriate in this area; also, how anti-property this is depends on how anti-property the Penn Central test is), and I'd like to see at least some discussion of them. . . . Anyway, this case certainly doesn't say that temporary moratoria are never takings and don't require compensation!

Well, after reading their analysis of Tahoe-Sierra, I'm not sure whether to trust their characterization of other cases, which I haven't read. But let's just look at their general philosophy:

[The Supreme Court] is charged with the mission of not only interpreting and applying statutes, but it also has the solemn responsibility of interpreting the enumerated powers granted to the U.S. government under the Constitution. It is the Supreme Court�s fundamental task to ensure for all Americans that the government�s exercise of its powers remains wedded solely to the principle that animates the Constitution -- the doctrine of individual rights.

Yet without a consistent understanding of the principle of individual rights, the Supreme Court (and the lower courts) are rudderless in their interpretation of the Constitution. In the Center�s review of the opinions issued during the Supreme Court�s October 2001 term , we expose a conflicted and inconsistent Court. The Court itself ruled in favor of individual rights in only 55% of the cases in the past term; the rest of its cases were adjudicated along lines that restricted rights and unjustifiably expanded the power of government. . . . Although often portrayed as the great champions of the Constitution, the best individual justices, Clarence Thomas and Antonin Scalia, voted in favor of individual rights only 75% of the time. . . .

Clearly there is a disconnect between the principle of individual rights and the Court�s voting record. The Center considers this problem to be philosophic, reflecting the larger conflict in American culture between the Founders� view of individualism and freedom versus the modern (and now dominant) belief in collectivism and state paternalism.

The CMDC seems to think that respect for the Constitution = respect for individual rights. But the Constitution is not a libertarian or Objectivist document, though it was inspired by various libertarian-like/natural-law ideas. The Constitution allows the government to do many things, not all of which are good ideas on libertarian grounds. It looks like there's a pretty basic identification of constitutional-interpretation preferences with policy preferences in this report. (If they really think they're the same, I'd like to see a detailed discussion of this in the report, since it's one of the biggest questions of constitutional law -- even lots of libertarians dislike libertarian judicial activism for rule-of-law reasons.)

Plus, many of the cases this Term were about statutory interpretation, where the question is just what a statute (say, the Americans with Disabilities Act) meant, and sometimes the statute's really awful, so a true answer about what the statute meant is contrary to individual rights.

Finally, in some cases it's not even clear what the pro-individual-rights view is. Two cases from the CMDC report -- United States v. Fior D'Italia (where the IRS adopted a method for estimating cash tip income which got at an underpayment problem but wasn't very accurate) and Chickasaw Nation v. United States (where an Indian tribe sought a tax exemption) -- involve people wanting to pay less in taxes. The CMDC's view is anti-IRS in each case. But is that the pro-individual-rights view? Or should a good libertarian prefer lower taxes but fewer exemptions? (The anti-IRS view is especially problematic in Chickasaw Nation, where the CMDC sides with O'Connor's maxim to interpret ambiguities liberally in favor of Indians -- do we want a special pro-Indian rule?)

Anyway, the report mischaracterizes some of the cases; it seems to conflate the idea of constitutionality or correct statutory interpretation with the idea of individual rights; and it goes with a pretty simplistic view of what's the right outcome. This is not where I would recommend getting news about the Supreme Court.

 
[Sasha Volokh, 1:45 PM]
CORRUPTION OF THE LEGAL SYSTEM? While eating my chicken & prosciutto tortelloni, cooking a Russian strawberry/raspberry compote, and washing my newly found parsley root, I saw a kids' show on PBS called Cyberchase, where Cyber Squad went to an old-West-type place, apparently chasing a villain named Hacker who had infected the "Mother Board" with a virus.

I didn't see the beginning of the episode, but it seems that Hacker got locked up for stealing land, and the one issue in the trial was whether his plot of land was larger than another person's. Interestingly enough, the judge in the case, Judge Trudy, was the adverse property owner, and her sister was the sheriff. The kids figured out the area of her rectangular plot of land by multiplying length by width, and found the area of his irregular plot by introducing the viewers to calculus -- essentially, filling up the plot of land with small squares and seeing how many squares it would contain.

The two plots were the same size, so even though the kids didn't like Hacker, they revealed the evidence and got him released anyway. First, they went to tell the judge about it -- ex parte communication?, though it's unclear how those rules work when the judge is also the adverse party, and plus, they weren't representing Hacker at the time. But should the judge have been talking to them about a pending case? Then they went to Hacker, who didn't know how to prove that the plots of land had the same size, and threatened to withhold the evidence unless he undid the virus. I don't think that's unethical under the circumstances, but it's not obvious and there was no soul-searching on the part of the kids about the ethics of the judicial system.

Is this the image of the judicial system we want to be conveying to our kids, even if we're teaching them calculus?

 
[Sasha Volokh, 9:31 AM]
SUSTAINABILITY: A nice article from The Economist on sustainable development, by Vijay Waitheeswaran. It's kind of too green in tone for my liking, but it has some good points. First, a nice quote from Kristalina Georgieva, the World Bank's director for the environment, on why early dreams of "win-win" strategies that would combine environmentalism and Third World development fell flat: �I've never seen a real win-win in my life. There's always somebody, usually an elite group grabbing rents, that loses.�

John Graham -- an official in the Office of Management and Budget in charge of regulatory cost-benefit analysis, not widely thought of as an environmentalist -- says the concept of sustainable development can improve regulation because it alleviates tunnel vision: "It's good therapy for the tunnel vision common in government ministries, as it forces integrated policymaking. In practical terms, it means that you have to take economic cost-benefit trade-offs into account in environmental laws, and keep environmental trade-offs in mind with economic development.� And, say Stanford economists Kenneth Arrow and Larry Goulder, economists are coming to accept that you should value ecosystem services, while ecologists accept you can't ban everything.

Now, none of this is necessarily pro-free-market. But I think what sustainable development becomes depends on what kind of PR it gets. It could turn into something highly regulatory; or it could be spun from a free-market point of view, to point out that market-driven strategies, and the habits that come from economic growth, are the most sustainable ones out there.

The article, by the way, is part of a survey on The Global Environment -- with articles on:

• how little information there is, and how more can lead to both better regulation and better protection of environmental resources through better definition and enforcement of property rights (e.g., sulfur dioxide permits, fishing rights) -- but on the pitfalls of environmental information, see my op-ed, my longer study, or forthcoming Utah Law Review piece;



• global warming -- somewhat alarmist in tone, but at least it focuses on possible technological fixes as alternatives to regulation and stresses that poor countries burning coal are the main problem;



• problems in the developing world -- good emphasis on how nasty local problems are worse than global warming, with a mention of why property rights are crucial;



• environmental technology -- about the "dynamic dance of development, scarcity, degradation, innovation and substitution";



• market-based environmentalism -- on why we need "carrots, not just sticks" (see my similarly-titled Washington Monthly article); and



• actual proposals.

They go a more technocratic route than I'd probably go, but all in all, it's well-balanced and well-written, like most of what gets printed in The Economist. By the way, new word I learned -- did you know that boffin means "scientific expert"?

 
[Sasha Volokh, 10:20 PM]
UNDER THE BIG W: The Economist writes about anti-Kurdish policy in Turkey:

[P]arents across Turkey are still being prosecuted for giving their children Kurdish names, and publications fined for using the letter W, part of the Kurdish alphabet but not the Turkish one, on the ground that such things encourage ethnic separatism.

Reports of White House vandalism at the time of the Clinton-to-Bush changeover, where the letter "W" was allegedly removed from computer keyboards, is apparently unrelated to Kurds. But compare with Georges Perec's La Disparition, a French novel written entirely without the letter E, translated into English by Gilbert Adair as A Void.

UPDATE: Reader Robert Mitchell tells me than an American, Ernest Vincent Wright, published Gadsby: A Story of over 50,000 Words Without Using the Letter E, in 1939. You can find it on the Web. From the first chapter:

Upon this basis I am going to show you how a bunch of bright young folks did find a champion; a man with boys and girls of his own; a man of so dominating and happy individuality that Youth is drawn to him as is a fly to a sugar bowl. It is a story about a small town. It is not a gossipy yarn; nor is it a dry, monotonous account, full of such customary "fill-ins" as "romantic moonlight casting murky shadows down a long, winding country road." Nor will it say anything about tinklings lulling distant folds; robins carolling at twilight, nor any "warm glow of lamplight" from a cabin window. No. It is an account of up-and-doing activity; a vivid portrayal of Youth as it is today; and a practical discarding of that worn-out notion that "a child don�t know anything."

Now, any author, from history�s dawn, always had that most important aid to writing: an ability to call upon any word in his dictionary in building up his story. That is, our strict laws as to word construction did not block his path. But in my story that mighty obstruction will constantly stand in my path; for many an important, common word I cannot adopt, owing to its orthography.

 
[Sasha Volokh, 4:58 PM]
OTHER PEOPLE'S MONEY: Boston Globe columnist Adrian Walker has an article about the Massachusetts governor's race, now that Democrat Steve Grossman has left the race (my emphasis):

Grossman probably did himself and his party a favor. Maybe it will be easier for voters to focus on a smaller field; maybe more candidates will follow his example. That seems unlikely, though. [Thomas] Birmingham has too much invested to quit. And Warren Tolman certainly isn't going anywhere. He stands to collect another $1.7 million of your money this week as a Clean Elections candidate. We should all get to play with house money.

I'm not a regular Adrian Walker reader, and I don't know what he thinks generally about the Clean Elections law (that's public funding of elections for candidates who comply with certain "clean" rules). But it's heart-warming to see that kind of cynicism at the Globe.

 
[Sasha Volokh, 12:54 PM]
THOUGHTS ON ZIONISM: Hillel Halkin has a good article, "Not So Fast," in a New Republic from last month, reviewing Tom Segev's book, Elvis in Jerusalem: Post-Zionism and the Americanization of Israel. Segev is a major Zionist-skeptic, as in, "Like, what's the point of this whole Israel thing anyway?" (Segev isn't a radical historian who says Israel was "'born in sin' because it was built on the ruin of the Palestinians"; he just says Israel hasn't delivered on its promises.) Halkin busts a couple of anti-Zionist myths, like, a state of Israel before and during the Holocaust wouldn't have been able to save Jews anyway. (I don't know a lot of facts behind this, but his debunking seems plausible.)

Where things become more interesting is toward the end of Halkin's article, where he speculates about the wider causes of Zionist-skepticism:

Zionism remains . . . the extraordinary adventure of a people that, doing what no people ever did before, sought to save itself from extinction by returning to live an independent life in the home it grew up in and from which it was dispersed long ago.

Why are so many Israeli intellectuals, like Tom Segev, blind to this adventure? Why are they unmoved by it? What makes them feel that they are living in a provincial satrapy embroiled in pointless neighborhood quarrels rather than in the stupendous human drama that Israel represents?

The answer, he says, is the "cognitive dissonance" of Zionism with the spirit of the age. The earlier twentieth century was an age of "great collective movements and struggles," both good and evil. "The necessary allegiance of the individual to something greater than himself was an axiom of the ideological age. . . . This spirit began to wane in the 1950s, and it was dead by the mid-1970s." Most of the West gets on great, and even better, without such allegiances, but:

There is only one small corner of the Western world in which such allegiances are still needed for survival. If they erode there too, as they show worrisome signs of doing, Israel may one day lack the will to defend itself against enemies who do not belong to the Western world.

One feels in the writing of an Israeli intellectual such as Segev the (probably unconscious) preparation for that day. This is where the cognitive dissonance comes in. To say that "Israel is a special and wondrous achievement for which I am no longer willing to bear my share of the burden" is a difficult, if honest, thing to do. It is easier to write a book saying, "Israel? A poor man's America on the Mediterranean! It will be sad if it goes under -- after all, it too has a right to live -- but the Jewish people, let alone the rest of humanity, will manage quite nicely without it. It's certainly nothing that a Western intellectual like myself would let himself be pushed back into the Zionist womb for." The words that I have italicized are taken from Segev's book. . . .

[O]f all the world's free countries, Israel and America alone still stand today for an idea -- and . . . this idea, although it is not the same in each case, holds in both cases that history has tasks for peoples that it is their responsibility to shoulder. Whether this task, in the case of the Jewish people, is called Zionism or something else is not important. What matters is that it not be shirked.

On a similar note, see Yossi Klein Halevi's article, also from The New Republic last month, on "How Despair Is Transforming Israel." It's on how Israelis become reckless and dismissive of world opinion to the extent they become pariahs, "the 'Jew' of the nations." Halevi cites an Israeli friend of his, "a veteran critic of the occupation," who says, "If the world can't find space for a sliver of a Jewish state, then the world doesn't have the right to exist. And if it blows up because of a nuclear war in the Middle East, maybe that's poetic justice." Says Halevi, "A benign or least neutral international climate is a key precondition for Israeli willingness to take risks for peace."

I think this whole discussion points the way to an intermediate view, which would go something like this. Biblical history is irrelevant; the Bible or a long history of occupation gives the Jews no right to have "their own" state in Israel. There are morally problematic elements to the foundation of Israel, insofar as particular people who used to live there were expropriated; and there are morally problematic elements to the continued existence of Israel today, insofar as Palestinians in the territories can't do all the same things that regular Israelis can do, orthodox Jews get special welfare payments from the government, and the government pursues various pro-Jewish policies. Indeed, the very idea of having a "Jewish state," even "a sliver" of one -- both particular pro-Jewish policies and the symbolism of the state -- is in deep conflict with individualist liberal values.

And yet, as far as real politics is concerned, the best shouldn't be the enemy of the good; we should support countries and governments not according to whether they conform exactly to an abstract ideal but according to whether they're closer to the ideal than whatever else is on offer. By that standard, Israel as it is today is vastly superior to the alternatives, the best of a really iffy lot. To the extent Israel requires a tribal/nationalistic/religious/collectivistic mythology to maintain the will to defend itself against its enemies, well, that's really sad, but possibly true.

To the extent it's true, Zionism is acceptable (but nothing for me to get enthusiastic about), but only because as a side effect it promotes democracy, secularism, and individual freedom. (On this account, statements like the "Zionism = Racism" resolution of the 1970s are objectionable -- not because they're false, but because they lack perspective, applying a standard against Israel that applies equally well against most other countries in the area.)

This sort of philosophy doesn't imply any particular politics, though it does exclude a willingness to wipe Israel off the map. One possibility is that given that Israel is on balance good, then, if you believe that concessions to the Palestinian leadership as it exists today would only be a stepping stone to the annihilation of Israel, you should take a hard-line view. Or, if you don't believe in that particular slippery slope, you could still be pro-Israel but on the dovish side. Or, if you think the Palestinians need to see some political reward for abandoning armed struggle, you could be in favor of some Palestinian state with a lot of conditions attached.

This philosophy is no more politically restrictive than actually believing in Zionism. The difference is that actually believing in Zionism puts one in league with a sort of tribal religious nationalism that I find very distasteful.

UPDATE: Reader Seth Tillman calls me on the "special welfare payments" that the orthodox get, and that was indeed the wrong phrase. I should have just said "subsidies and special privileges," which is more general. I meant that students enrolled in orthodox yeshivas get military deferrals and, because deferral requires full-time study, many of these students' families end up dependent on state welfare and the wife's income; there's public funding of religious services, which goes disproportionately to Jews; and "Orthodox Jewish religious authorities have exclusive control over Jewish marriages, divorces, and most burials."

Reader Joe Socher asks why it's "disturbingly tribal to say that there should be a state for the Jews just as there should be an Italian state." Yes, the only reason I don't oppose the Italian state is that no one's contesting its legitimacy (though there is the whole Europe thing) and I haven't heard of anything particular pro-ethnic-Italian it's been doing that's particularly reprehensible. Anyway, to the extent I take a position on Italy vs. Europe, I certainly don't give any weight to the right of Italians to have their own pro-Italian government in Italy. We call guys who do that far-right nationalists.

Reader Scott Weiner points out that calling Zionism a "tribal religious nationalism" is a bit excessive; the "special privileges" of the Orthodox come from the multi-party parliamentary system of government, not necessary from Zionism itself. I agree, you can be a secular Zionist and believe in a religion-neutral state. I think the term "tribal" is appropriate because we are, after all, a tribe!, but I suppose some people do find it pejorative. So I should say, in my last sentence: "The difference is that actually believing in Zionism puts one in league with a sort of nationalism that I find very distasteful." Scott points out that most countries around the world are nationalist, and I agree. That doesn't mean I like it in those countries either; I'm just stressing Israel because there's this huge pressure for Jews to be have a position on Israel, and plus, one's position on Israeli nationalism, I think, matters in a policy sense in a way it doesn't as much in many other countries, at least in the developed world.

 
[Sasha Volokh, 12:23 PM]
FREEDOM FIGHTERS? The Washington Post writes, in this article by Kevin Sullivan, about the Mexican airport protesters in San Salvador Atenco. The protesters have just ended their violent four-day protest by releasing 19 hostages; the government has promised to "reconsider terms of the airport's construction." The airport, 15 miles northeast of Mexico City, was going to be built on expropriated land; the farmers were offered 60 cents per square yard in compensation, which they apparently thought was too low.

[The airport, the biggest public works project of Mexican President Vicente Fox's term in office,] poses a delicate dilemma for Fox, who wants to achieve a major goal of his administration without appearing to bully the farmers into giving up their land with the strong-arm tactics of previous Mexican governments.

After days of harsh rhetoric on both sides, Interior Secretary Santiago Creel took a conciliatory tone in a news conference Sunday night, saying the government was eager to negotiate a settlement with the farmers before building the airport. He said the government was willing to build new houses and schools for the displaced villagers, find them new farmland and arrange for many of them to work at the new airport.

Here are a few interesting paragraphs about the controversy:

Protests in Atenco have been building for months. On Thursday, more than 1,000 protesters, many wearing ski masks and carrying weapons, threw homemade bombs and burned trucks and cars. The farmers hijacked gasoline tanker trucks and threatened to tie the hostages to them and blow them up. They also threatened to cut off the ears of journalists covering the episode.

Critics said government officials should have seen the airport problem coming. "These people have been farming that land for three generations, and suddenly the government comes along and tells them it's not worth anything," said columnist Raymundo Riva Palacio. "They insulted their pride."

Riva Palacio said officials from the state and federal governments failed to negotiate in good faith with the farmers over the past few months. "They didn't listen to them; they just said, 'We're going to build the airport,' " he said. "This was the only way they could get the government to listen to them."

Mexico has a long history of violent local protests. Throughout the country, villagers upset about some local issue regularly take over municipal offices, often detaining police officers or local officials. Such protests often spur the local government into negotiating a settlement of the issue, and few protesters are ever punished.

Thousands of dollars worth of public and private property was destroyed and more than 30 people were injured in the airport protest, including a police officer who was stabbed. Yet none of the farmers or the protest leaders are being charged with a serious crime. The 11 people who were arrested have been released on bail as part of the deal to get the hostages released.

Well, maybe these guys have gone a little too far. (Ears of journalists?) Or have they? After all, it worked, in the sense that at least the government is going to give greater compensation for kicking these people off their land. But it's good to see that people are willing to fight -- I mean, really fight -- for their property rights. Terrorists or freedom fighters? It really makes one wonder about the labels.

UPDATE: By the way, see a past post on eminent domain, including several examples of expropriation abroad.

UPDATE 2: Note how I said above that only that the farmers "apparently thought [the 60 cents per square yard] was too low," since I didn't want to take a position on whether the price offered was "reasonable." Lynxx Pherett, along with Reuters on July 13, points out that 60 cents per square yard (this was originally reported in pesos per square meter, but roughly converted) is actually $3150 per acre. Not peanuts, but the point is that these guys didn't want to sell. Well, now they're still being kicked off, but at least they're getting more for it.

 
[Sasha Volokh, 11:59 AM]
SCHADENFREUDE: A nice Fred Hiatt column from the Washington Post about the 1947 Truman reorganization of national defense, and how it seems much more prescient and seamless today than it was back then. A comforting quote:

It's comforting in a way that the reorganizers of Truman's day may have been no wiser than the statesmen of today, their actions no less the product of an incalculable mix of patriotism, politics and the frustrating impossibility of seeing the future. It's comforting too that an imperfect, staged reform nonetheless proved to be a momentous achievement.

 
[Sasha Volokh, 11:56 AM]
THE CONSENT OF THE VICTIM: Here's a Washington Post article by Tom Jackman about Zacarias Moussaoui and how incompetent his defense is, since he won the right to represent himself last month:

• "Virtually all of Moussaoui's filings are tinged with hatred at Brinkema, his attorneys and the government, which he claims are conspiring to have him executed for the crimes of Sept. 11. But while his motions -- usually about two pages long -- harp on these themes, they rarely contain much legal substance to help his case, outside lawyers say."



• Moussaoui can't interview witnesses, as lawyers would have been able to do, because he's confined to his cell "under strict administrative conditions that forbid much contact with the outside world."



• He has a "confused grasp of legal theory" (he accidentally pled "no contest").



• His case is "entirely circumstantial," according to one of the lawyers involved. "It may be a strong one, but one where you battle over each and every piece of evidence. That's what defense lawyers would have done."



• Says a lawyer involved, "there was a real battle to be joined here regarding whether a defendant who does not commit the acts that directly led to the death can receive the death penalty under the law." But Moussaoui is unlikely to raise such issues. And issues left unchallenged by trial's end cannot be raised on appeal.



• "[A]lthough he has been given access to pretrial discovery from the government, Moussaoui is not entitled to see classified documents that his security-cleared lawyers are seeing. [Public defender, now standby counsel] Dunham has pointed out that he may be sitting next to, or near, Moussaoui during the trial with key information about someone on the witness stand, but he won't be able to share it with Moussaoui."

But there's "good news" -- "Dunham continues to urge the judge to reevaluate Moussaoui's mental state, and [judge] Brinkema last week indicated that she could revisit the issue at any time. The judge wrote in an order Thursday that some of Moussaoui's motions 'demonstrate a profound misunderstanding of the federal legal system.'"

It's pretty clear that allowing Moussaoui to represent himself pretty much makes it hard for the truth to come out. The adversarial system is based on the idea that any side's case, seen in isolation, could seem persuasive, but you don't know for sure unless you have smart people on either side trying their hardest to poke holes in that case and constructing a positive case of their own. This is why underfunded and inadequate public defenders are potentially a big problem, and why we should try hard to provide counsel for people -- especially criminal defendants -- who don't have one.

But there's something more important than truth in a trial, and that's the litigant's autonomy. Moussaoui fired his court-appointed lawyers because he "grew suspicious of them." I suspect he considered it all an American plot, and generally dislikes the idea of participating in a system that's out to get him on the system's own terms. To let yourself be given an "adequate defense" by court-appointed lawyers is, in a way, to acknowledge the legitimacy of the system that wants to kill you. This is a point that Arthur Koestler understood very well -- see Darkness at Noon -- and so, in a much more caricatured way, did Ayn Rand -- see the Hank Rearden courtroom scene from Atlas Shrugged. I'm told you can get similar insights from reading transcripts of Stalinist show trials.

To reject a court-appointed defense and have your own, "incompetent," one, is indeed "incompetence" from the point of view of the American legal system, but it's not insanity. Being able to control your own defense is a fundamental right, and I hope they don't use Moussaoui's ideological preferences to justify finding him insane and saving his life by giving him a defense he doesn't want. (On a similar point, the "too crazy to be culpable" defense as used in the Unabomber trial, see Virginia Postrel's editorial in the March 1998 issue of Reason.)

UPDATE: Jacob Sullum has a good article about this in Reason. And see Howard Bashman's excerpt from the transcript on How Appealing. Oh yes, and see Eugene's post from a month ago, where he explains that the law allows this and has a tentative thought.

 
[Sasha Volokh, 11:35 AM]
ANTITRUST AND PRESCRIPTION DRUGS: Here's an interesting article by Bill Brubaker from the Washington Post on Pfizer's acquisition of Pharmacia. No broad theme here, just a couple of interesting details:

• Pfizer doesn't expect any antitrust problems because Pfizer and Pharmacia don't have many overlapping products. This is a simple point of industrial organization that doesn't get much press. If you think the problem with oligopoly (a market with only a few producers) is that it inflates prices and reduces quantity, then bigness isn't the problem. When thinking about whether to raise your price, you trade off the benefits (higher prices on what you sell) against the costs (some of your customers go to a competing product). If you buy one of your competing products, the costs aren't so high anymore, because you don't mind if you chase some of your customers away to a product that you yourself own. So buying competing products makes it easier for you to raise prices. On the other hand, if you buy an unrelated product, your cost-benefit analysis on whether to raise prices stays the same as it did before. So, to the extent you're worried about oligopolists increasing prices, bigness isn't the problem -- ownership of "competing" brands is the problem.



• Pfizer expects better times ahead because they expect that Congress will pass a prescription drug benefit under Medicare by next year. Just a little note on where the political battle-lines are, and a reminder that business is not automatically against the welfare state.
  

 
[Sasha Volokh, 11:24 AM]
THE LASTING IMPACT OF JOHN MAYNARD KEYNES ON SUPREME COURT DOCTRINE: Old-fashioned Keynesianism is no longer considered true even by most Harvard macroeconomists. (Now New Keynesianism is a whole nother story -- but is it [neither New nor] Keynesianism? [Discuss.]) But the ghost of Keynes (that's pronounced "kanes," folks) lives on in pronouncements of the Supreme Court.

Well, there are some decisions citing Keynes as the inspiration of one of the competing economic ideologies --

• Osborn v. Oslin, 310 U.S. 53 (1940) (this is a Frankfurter opinion in a dormant commerce clause case): "It is equally immaterial that such state action may run counter to the economic wisdom either of Adam Smith or of J. Maynard Keynes, or may be ultimately mischievous even from the point of view of avowed state policy."



• Ferguson v. Skrupa, 372 U.S. 726, 732 (1963) (this is a Black opinion upholding a Kansas occupational licensing regulation against a substantive due process challenge): "Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours." This language from Ferguson was also cited in North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 166 (1973) (a Douglas opinion doing the same for a North Dakota occupational licensing regulation).

Whenever someone mentions Smith and Keynes in the same sentence, you can be pretty sure they're saying, "It doesn't matter whether what they were doing was good or bad, it's still constitutional." (Cf. "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).) (Well, O.K., except in Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 274 (Stevens, J., dissenting), where Stevens explains why the Warsaw Convention on airline liability limitations uses a gold standard ("The delegates to that Convention were schooled not in the theories of John Maynard Keynes, but rather, in the accepted learning of John Stuart Mill.").)

But here are some more cases where Keynes is actually cited approvingly -- and the most recent citation is by Justice Thomas -- and it's the same bit of Keynesian philosophy each time!

• Weinberger v. Salfi, 422 U.S. 749, 783 (1975) (this is a Rehnquist opinion upholding duration-of-relationship requirements for Social Security survivor benefits against an equal protection challenge): "It would also appear to be necessary to set an outside limit on the length of the period within which death was expected that would disqualify applicants (after all, and paraphrasing Lord Keynes, in the long run we are all expected to die)."



• Department of Labor v. Triplett, 494 U.S. 715, 724 (1990) (this is a Scalia opinion upholding an attorney-fee limitation against a substantive due process challenge): "'In a small, depressed West Virginia town $30,000 is a substantial amount of money for an individual practitioner. In the long run, as John Maynard Keynes once observed, we are all dead. In the short run, lawyers have offices to run, mortgages to pay and children to educate'" (quoting the West Virginia Supreme Court).



• Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1497 (2002) (Thomas, J., dissenting) (this is the recent takings opinion holding that a temporary deprivation of all value was not a per se taking): "But the 'logical' assurance that a 'temporary restriction . . . merely causes a diminution in value' . . . is cold comfort to the property owners in this case or any other. After all, 'in the long run we are all dead.'"

Has Justice Thomas -- as well as Justice Scalia and Chief Justice Rehnquist before him -- embraced the merchants of death, the machinery of death, the culture of death, or, worse, Keynesianism?