Saturday, November 22, 2003

 
[Eugene Volokh, 11/22/2003 12:34:35 PM]
Pretty appalling, if true:

The European Union's racism watchdog has shelved a report on anti-semitism because the study concluded Muslims and pro-Palestinian groups were behind many of the incidents it examined.

The Vienna-based European Monitoring Centre on Racism and Xenophobia (EUMC) decided in February not to publish the 112-page study, a copy of which was obtained by the Financial Times, after clashing with its authors over their conclusions. . . .

Following a spate of incidents in early 2002, the EUMC commissioned a report from the Centre for Research on Anti-semitism at Berlin's Technical University.

When the researchers submitted their work in October last year, however, the centre's senior staff and management board objected to their definition of anti-semitism, which included some anti-Israel acts. The focus on Muslim and pro-Palestinian perpetrators, meanwhile, was judged inflammatory.

"There is a trend towards Muslim anti-semitism, while on the left there is mobilisation against Israel that is not always free of prejudice," said one person familiar with the report. "Merely saying the perpetrators are French, Belgian or Dutch does no justice to the full picture."

Some EUMC board members had also attacked part of the analysis ascribing anti-semitic motives to leftwing and anti-globalisation groups, this person said. "The decision not to publish was a political decision." . . .

Ole Espersen, law professor at Copenhagen University and board member for Denmark, said the study was "unsatisfactory" and that some members had felt anti-Islamic sentiment should be addressed too.

The EUMC, which was set in 1998, has published three reports on anti-Islamic attitudes in Europe since the September 11 attacks in the US.

Beate Winkler, a director, said the report had been rejected because the initial time scale included in the brief - covering the period between May and June 2002 - was later judged to be unrepresentative. "There was a problem with the definition [of anti-semitism] too. It was too complicated," she said. . . .

     If the objections were simply that "anti-Semitism" was defined too broadly, to include anti-Israeli sentiment that wasn't anti-Semitic, then I wouldn't be troubled; likewise if the problem really was that the report was limited in its timeframe. Sometimes a government agency commissions a report and then realizes that there are serious flaws in it; if that's so, then it certainly shouldn't endorse it. But if it's really true that the data wasn't released because the facts that it uncovers -- that there really seems to be a problem with Muslim anti-Semitism, a problem that I would think would need to be exposed to be properly addressed -- are seen as politically unpalatable, that surely seems quite wrong. (And, yes, I'm sure the U.S. government has done plenty of that sort of thing, too; the EU is doubtless not remotely alone in this tendency.)

     Incidentally, if anyone has the URL for the full report (or, if it's not on the Web, has a copy he can e-mail me or send me), I'd love to post it. (Thanks to InstaPundit for the pointer.)

 
[Eugene Volokh, 11/22/2003 10:29:25 AM]
Guess who said this?

George Bush blew [Gulf War I]. I think he'd had only 300 Americans killed and I think he felt at the end of the war that day, it would be a great record. So he didn't want to go on one more day. If he'd gone on one more day there might not have been 100,000 Iraqi killed. But in any event, war is merely one of the horrors that face us. If you're going to take an absolute liberal position, as for instance Victor did, and said let's do it through the UN, the fact of the matter is the UN is not competent to find out where all the nuclear things are buried. We're going to miss the KGB before it's all over because they were good at that. The CIA is probably pretty good at that. You need that kind of information.

We're entering an extraordinary world where all the old signals are off. It used to be that Third World countries were wonderful little places that were terribly exploited. Now they're ugly places that are run by maniacs very often. We have to face that fact. If you keep using liberal jargon forever you will finally die in your own platitudes.

The answer is . . . Norman Mailer, 1992. Thanks to Andrew Sullivan for the catch. Sullivan's comments:

Here's a discussion of the first Gulf War by Norman Mailer, a man who is now hell-bent on declaring the second president Bush anathema for daring to finish what his father started: [the above quote]. So you get damned if you leave Saddam in place; and you get damned if you don't. If Mailer was prescient enough to realize as early as 1992 that "we're entering an extraordinary world where all the old signals are off," didn't 9/11 seal the case? It's the MoDo principle: attack 'em whatever they do, and hope no one will actually pore through your paper-trail.

 
[Eugene Volokh, 11/22/2003 10:24:19 AM]
Dog-on-a-Chip: Not like a corn dog. Thanks to GeekPress.

Friday, November 21, 2003

 
[Eugene Volokh, 11/21/2003 07:25:20 PM]
"French rabbi: Wear baseball caps, not skullcaps, in public," reports Haaretz, quoting a French newspaper (thanks to Andrew Sullivan for the pointer):

The Chief Rabbi of France, Rabbi Joseph Sitruk, called on that country's Jewish community to wear baseball caps instead of skullcaps while not in their homes, in order "to prevent being attacked in the street." Daily newspaper Le Parisien reported in its Wednesday edition that Sitruk made the comments Tuesday in an interview on Radio Shalom, a Jewish community radio station. . . .

Speaking Wednesday to Haaretz, a close aide to the rabbi tried to play down the controversial comments. "The Chief Rabbi has always said that head covering is an important commandment, and that the covering itself is not important. In
the current climate, there is no point waving a red rag in public places." . . .

 
[Eugene Volokh, 11/21/2003 01:56:03 PM]
Odd thing to be shocked about: The Foundation for Individual Rights Education, a group that I very much respect, just published the results of its survey of college administrators on various First Amendment issues. I haven't gotten through it yet, and I'm sure it will have some interesting details (I've heard some in the news). But this little complaint puzzles me:

More than 7 in 10 (72%) administrators admit they do not know which freedom the First Amendment addresses first before addressing the other freedoms. More private (75%) than public college administrators (65%) report they do not know which freedom the First Amendment addresses first before addressing the other freedoms. While, two in ten (22%) private and 33% of public colleges report they do know which freedom is addressed first. . . .

Well, off the top of my head, I gave the wrong answer, too. What's more, I don't think I can tell you without a lot of thought (and maybe even with a lot of thought) what the first rights mentioned in the Fifth and Sixth Amendments are.

     Now, trust me on this, I know my First Amendment law pretty well. I've taught it for years. I've written a textbook on it. I don't know which comes first because I don't think it's important which comes first. Sometimes the first item is put first because it's more important, but sometimes it's put first because something has to come first, or because for whatever reason the provision parses better that way. I know of no historical evidence that the Framers put one of the clauses first because they thought it was more important.

     Likewise for claims that the First Amendment is especially important because it's the first. It was originally the Third; the first two, which weren't ratified at the time, dealt with the maximum numbers of people to be represented by each Representative, and with limits on Congress raising its own members' salaries. (This original Second Amendment was enacted as the Twenty-Seventh not long ago.) Maybe the Framers thought that the rights in the First Amendment were more important than, say, the right to trial by jury. Maybe they didn't. I doubt that they thought the Third Amendment (limits on quartering soldiers) was more important than the Sixth (which includes the trial by jury).

     In any event, I have yet to be persuaded that the order matters here; and I don't think we should worry that people "admit" that they "do not know" (in italics) the order of the clauses in the First, Fifth, or Sixth Amendments. I'll settle for their knowing the content of the amendments, which is the important point, in whatever order.

 
[Eugene Volokh, 11/21/2003 01:18:42 PM]
An Establishment Clause story: From the Martinsville Bulletin:

[The] . . . framed picture of Leonardo da Vinci's Last Supper . . . was at the center of a controversy in the Patrick County School System recently after an unidentified person complained that the picture violated the constitutionally mandated separation of church and state.

Woolwine Principal Sandra Rogers said the complaint came from someone who visited the school during its Halloween carnival on Oct. 24. . . .

Rogers, who has been working at the school for seven years, said to the best of her knowledge, the painting had been in the cafeteria since the school opened in 1939. . . .

The print occupied the same spot for so long that it sometimes went unnoticed by people who were at the school every day.

"I've talked to former principals and teachers who taught here for 30 years or more who did not remember seeing the picture," Rogers said.

In 1975, a new cafeteria was built and the "Last Supper" was moved, again finding its familiar spot on a wall behind the serving line. The painting continued to hang there until Rogers removed it last month after the complaint was filed. . . .

[Afterwards, the picture was presented to art teacher Linda] Dauman and a group of aspiring artists known as the Young Artists Society.

"I think the board made the right decision. The picture has a deep meaning for the community," said Bobby Mangrum, Smith River District rerpresentative on the Patrick County School Board. . . .

As Mangrum understands the Bill of Rights and the Constitution, he said the concern is more about limiting the government's interference with religion than it is about religion's interference in government. "Our forefathers certainly had a belief in God and in right and wrong," he added.

Mangrum and Rogers agree that the picture's longevity at the school is a tribute to the community.

"As much as I regret that it had to be moved, I feel like (moving it) brought attention to it. I feel it will be observed more in its present location," Rogers said.

It only goes to show that "all things work together for good to them that love God," Mangrum added.

Now, on the cafeteria wall where the picture once hung, school officials have hung a copy of the Bill of Rights and a poster bearing the words "In God We Trust."

Quite a few interesting little twists there. Thanks to Becky Dale for the pointer.

 
[Jacob Levy, 11/21/2003 12:18:59 PM]
Some responses to my hypothetical: Yesterday I asked whether, according to the jurisprudential theories of those opposed to the Massachusetts marriage decision, it would be constitutional for a state to ban nonprocreative heterosexual marriages.

Ramesh Ponnuru bites the bullet.

I think that the federal Constitution, properly interpreted, would not bar such a law. I don't know enough about the constitution of Massachusetts to venture a judgment about its compatibility with the hypothetical law.

Let me go on to answer some hypothetical challenges that have been issued in other recent constitutional debates. If a courthouse in Alabama were to display excerpts from the Koran rather than the Decalogue, I would have no (federal) constitutional objection to that. And if, in some place where heterosexuals were a minority, the legislature outlawed heterosexual sex, I am not at all sure that there would be a valid (federal) constitutional objection to that, either. (There would, however, be a strong case for moving out of the jurisdiction.)

As Levy notes, this jurisprudential opinion is independent of any judgment about the wisdom or desirability of such policies.

I think this is an entirely respectable and responsible position. It's an honestly textualist position (though I don't know whether Ponnuru considers himself a textualist). It rejects the existing rule that the right to marry is a constitutionally guaranteed one, at least in any general sense, and there's something to be said for that-- after all, one is hard-pressed to find the word "marriage" in the Constitution as it is currently written (and as I hope it will continue to be written).

From a different angle, the following e-mail also endorses the thought that childless gay couples and childless heterosexual couples are relevantly similar.

My take as a conservative, married person?

Marriage, with a man, woman and children benefits society. When it is a reasonably healthy family it is an optimal way to rear children as well as benefit individual men and women's lives (shown in many studies). Great for society. [JTL's note: as I understand the social science on this topic, marriage is an almost unmitigated good for men in terms of things like life expectancy and reported satisfaction with life but is mixed at best for women, with married women's life expectancy actually falling below that of single women-- even, as I recall, controlling for death during childbirth.]

Given this is the optimum, it deserves support. Any other arrangements, without the EXISTENCE of children may very well benefit the individuals in a monogamous, stable, relationship but it adds very little COMPARATIVELY to society as a whole.

I'd suggest that only marriages WITH children get extraordinary "protection". You can call you partner and your arrangement whatever you want but the state should only recognize existing FAMILIES and partners who have reared children as state blessed "marriages" with accompaning rights and benefits.

Further, since protection of the children and the stability of marriages is a state interest, people who do have children should pay a huge price for infidelity (as well as those who knowingly partner with spouses). Raise the hurdle for state benefits to "marriage". Make people state before they marry whether they both intend to have children before they can get a "provisional" marriage license (with limited benefits). Could help save a
lot of couples grief actually. By levating the institution beyond mere considerations of couples to focus on issues that threaten and undermine stable families is a societal interest, value and legitimate concern, any
state sanctioned marriage status will have a stronger logic foundation.

So, if you're steril and marry and don't have kids...no bene's. If you adopt, fine, you got a "marriage" in the states eyes and get benes. Until then, call your arrangement whatever you'd like but make all of your legal
issues explicit (wills, visitation, powers of attorney) cause the state doesn't (and shouldn't) care about helping two, unburdened, free, adults square away their respective responsibilities to each other.

But that's a policy argument, not a jurisprudential one. And most of the non-vulgar e-mails I received were policy arguments-- usually arguments about why it would be a bad idea to ban nonprocreative heterosexual marriage, or arguments that no such thing was democratically plausible or politically likely. But my question, as Ponnuru understood, was whether there was judicially-enforceable constitutional protection for the right of nonprocreative heterosexuals to marry, under the arguments used to deny that there was such protection for same-sex couples. The jurisprudential arguments that one could accept Massachusetts' defense of the rational basis of prohibiting gay marriage while still retaining constitutional protection for nonprocreative heterosexual marriage were the following:

The constitutional question seems relatively easy, I think, even "under the theory of those currently in a panic about judicial tyranny," though this isn't really the moral purpose you're looking for. Under Glucksberg & Troxel, the constitutional question is whether there is a sufficiently entrenched, particular tradition of having the liberty in question. If no state's ever tried such a ban, and only one state is trying now, and the ban interferes with people's lives, SDP protects the liberty. (Really, P&I, not SDP, see Thomas's concurrence in Troxel, but SDP's the legal fiction post-Slaughterhouse.) [JTL's note: "substantive due process" and the "privileges and immunities" clause of the 14th Amendment.]

I find this quite interesting, and there's clearly something to it as an account of current law. "Sufficiently entrenched, particular tradition" is going to be very hard to cash out, though. It can't be the case that it violates the constitution for one state to restrict a freedom that no other state has ever restricted; someone passed the first seat belt law, someone passed the first open container law, someone passed the first no-skateboarding ordinance. States have substantial freedom to legislate, and most legislation restricts individuals' liberty in some way or another. But there are standards in our jurisprudence about deeply embedded freedoms and traditions-- that is, after all, where the constitutional protection of the freedom to marry came from in the first place. And for an originalist who is not a textualist, or for someone much impressed with the survival of common law categories into constitutional jurisprudence (as Scalia, for instance, is not), this kind of thing carries weight.

But then common law reasoning kicks in. Common law makes constant use of the tension between deferring to the already-articulated rule and deferring to the reason for the rule. Say that there was once constitutional protection for nonprocreative heterosexuals because one couldn't be sure that they were permanently nonprocreative. (A couple of people e-mailed me to point out that impotence is grounds for annullment but that there are religious dicta in favor of supposing that a woman's sterility might turn out not to be complete.) But now we have two new facts: people can voluntarily sterilize themselves, and we have medical tests that allow us to determine that at least some people are 100% nonprocreative. The common lawyer has to say: with the end of the original reason, do we abandon the rule? If so, then one subset of heterosexual couples no longer have a recognized fundamental right to marry. If not, then it turns out that there are probably other reasons for protecting marriage as well-- the good attained by two adults living a life of commitment and intimacy with one another; the ability to have a default rule that, as it were, changes one's kin and family, graduating from the one that one was born into; the social usefulness of being able to distinguish between adults who have pooled their legal and financial resources and those who have not. It turns out that not all of the fundamental interests in marriage have to do with children. And then we have to see whether those reasons support the exclusion of same-sex couples, like the other, procreation-oriented, reasons did.

A comment about two things that I saw said in several e-mails each.

1) "Infertile heterosexual couples can adopt." I confess I'm baffled here. If the possibility of adoption (or of caring for a near-kin orphan, or any of the other variations) makes infertile heterosexual couples sufficiently and relevantly like other heterosexual couples that the former still have a fundamental and constitutionally protected interest in the right to marry, then (do I actually have to spell this out?) gay and lesbian couples are also sufficiently and relevantly like procreative heterosexual couples to have that interest.

2) "Infertile heterosexual couples can help to model, and to reinforce the model of, heterosexual couples that is necessary for the best childrearing." I guess I get this-- I especially get it with respect to heterosexual couples past reproductive age. If everything is instrumental toward the raising of children in two-biological-parent married families, and one wants to structure marriage so as to encourage the appropriate behavior on the part of those parents, then one wouldn't want to start dissolving all marriages upon menopause. Looking forward to growing old together is one of the carrots. Grandparents provide role models for parents. And so on. But young childless heterosexual marriages (like my own) don't really add anything measurable to the available stock of human knowledge about how men and women should relate in parental marriages. How to be married-with-children involves different skills and dispositions than just how-to-be-married. And the people in that first set look to thousands of years worth of knowledge accumlated by other people in the first set. Denying constitutional marital protection to people in the second set really can't affect that store of knowledge. In any event, this is surely sufficently remote and speculative that denying it wouldn't make a state fail rational basis review. That is, if a legislature said, "We've thought about that argument; but we think that discouraging voluntary sterilization and preserving the special social status of procreative heterosexual marriage outweigh the tiny increases in knowledge from childless married couples" and prohibited recognition of marriages that are nonprocreative from the outset (due to impotence, sterilization, infertility, advanced age prior to marriage, etc) then it seems to me the same court that accepted the rationality of the stated reasons for banning gay marriage would have to accept the rationality of this argument as well.

I'll also add that there would be something quite irksome-- though I know that my irk does not a constitutional argument make!-- about the law holding that I had a fundamental right to be married to my wife for reasons that had nothing to do with our own lives-- viz. that our marriage was valuable only because we might conceivably be good role models for some other people, whose marriage was really valuable because they had children.

 
[Tyler Cowen, 11/21/2003 11:46:14 AM]
Should we protect privacy rights in brain scans? Read the ever-insightful Randall Parker, at futurepundit.com. I usually like to provide quotations from my links, but it is not easy to excerpt from this short but fascinating discussion, click on the link and take a look.

 
[David Bernstein, 11/21/2003 09:22:55 AM]
Quote of the Day: A London attorney:"You will never change the hearts and minds of terrorists by bombing them."

That's OK, I'll settle for their death. I don't think we changed the hearts and minds of too many Nazis during World War II, either.

 
[Eugene Volokh, 11/21/2003 09:12:39 AM]
Cathy Seipp can make even real estate interesting. See her "Has capitalism failed, or have you?" piece in Reason.

 
[Tyler Cowen, 11/21/2003 05:33:45 AM]
Gay marriage and immigration: Yesterday I asked about the implications of gay marriage for immigration law. I've learned a good deal from you all since then. One Ragnar Eggen of Norway relates the following:

"Norway has a gay partnership law...There have been a number of weird immigration cases in the media, and some people are just darn good at surfing the current rules and laws. Pakistanis have been especially prone to work the system, and one guy actually "married" his mentally disabled male cousin (who lived in Norway already) in order to obtain immigrant status...Especially interesting, knowing that if he was caught being gay in his own country, he would be stoned.

Charles Crouch from Australia relates the following:

"In Australia, same sex partners can apply for immigration under the family reunion program. They come under a different category to spouses (which itself includes de facto and formal heterosexual marriages) being called "interdependent relationships" but the criteria are identical to how one proves a de facto heterosexual relationship - essentially 12 month exclusive relationship, evidence of continuing relationship required for two years afer entry, sponsor can only bring in total of three people under this category (in succession rather than together). I assume the proof of the relationship being real would be the same as a heterosexual one, where I have been required to attest to immigration that my friends to the best of my knowledge had only one double bed in the house etc.

Unfortunately the department doesn't seem to publish any stats on how many homosexual relationships come in but family reunion accounts for about 30,000 out of a total take of 80,000 and I would guess gay relationships to be a very small proportion of this. There is to the best of my knowledge no community angst about real or fraudulent gay relationsips being used to circumvent the immigration laws which suggests a reasonably small number."

One anonymous reader asked whether gay marriages between brothers, sisters, or other close relatives should, in the long run, be recognized. On one hand, there is no danger of problems with the children, but I am sure you can think of numerous reasons to draw the line here, one of which being immigration law and the risk of immigration-induced marriages.

Thursday, November 20, 2003

 
[Eugene Volokh, 11/20/2003 10:44:52 PM]
Briefosaurus is almost here. The amicus brief that goes up to eleven. But not, I hope, a brief about nothing (or, for that matter, a brief with legal reasoning that feels like warm apple pie). Coming Monday to a Web site near you. E-mail no questions; await further posts.

 
[Eugene Volokh, 11/20/2003 09:42:47 PM]
Further criticisms of the Ninth Circuit gun manufacturer liability decision: Clayton Cramer has them.

 
[Eugene Volokh, 11/20/2003 09:06:32 PM]
What Is the Airspeed Velocity of an Unladen Swallow? For European swallows, it's apparently 24 miles per hour.

 
[Eugene Volokh, 11/20/2003 06:15:37 PM]
Who decides? A couple of posts down, I argued the following: The Ninth Circuit decision points out that Glock may be held negligent for not cutting off distributors "who are responsible for the sales of guns that end up in the hands of criminals." This, I pointed out, essentially imposes on Glock a legal duty to cut off distributors who have never been convicted, indicted, or even accused of any misconduct -- the distributor may have acted perfectly legally and reasonably, and just had the misfortune of having a substantial number of criminals (whom it couldn't identify as criminals) as customers. I argued that this raises serious fairness and due process problems; and while I can imagine arguments for a legislature enacting such a principle ("If a substantially disproportionate number of the guns you sell end up in criminal hunds, you lose your license, even if you did absolutely nothing wrong"), such basic decisions should be made after a debate in the legislature, and not as the action of two unelected judges.

     Some correspondents objected: Why shouldn't judges make these decisions? Well, let me offer two analogies, one purely hypothetical and one less so.

     First, imagine that there was no drinking age for alcohol. A 20-year-old buys alcohol in a bar; he drives home; he hits another driver and kills him. The dead driver's relatives sue the bar, on the theory that it's "negligent distribution" for the bar owner to sell to 20-year-olds. The court says, "Yes, that's right; we're going to conclude that it's unreasonable -- at least presumptively so -- for bar owners to sell to 20-year-olds." The court has just essentially decided that the drinking age in the jurisdiction will be 21 (since bar owners know that by selling to 20-year-olds they risk ruinous liability, including punitive damages), applying its view of "negligent distribution."

     Is this good? I don't think so. I think here we have a situation where judges (and juries) aren't just weighing financial costs and benefits, or even financial benefits against financial evaluations of lives or injuries saved. They also have to make basic decisions about equality, liberty, and privacy. Should under-21-year-olds be in some measure second-class citizens (or, if you prefer, not fully adults)? Should their social lives be restrained this way? Should you need to show your identification in order to buy alcohol? The answers to these questions may well be "yes"; our legislatures have generally answered them "yes." But I don't think judges should make these decisions under tort law (unless the Constitution somehow requires them to make such decisions, as in, for instance, First or Fourth Amendment cases, but that doesn't apply here). I don't think that four out of seven state Supreme Court judges should draw this sort of line.

     Second, car manufacturers could make cars much harder for people to drive recklessly (if not today, then within a few years). They could put a transmitter in each car that alerts a police station whenever the car owner is speeding or even driving erratically (so if you have to speed to get your pregnant wife to the hospital, you can do it, but you'd have to explain yourself to the police). They might put in special devices into which the driver must breathe every so often in order to confirm that he's not driving drunk (I'm sure they have their weaknesses, but imagine that they're perfected). They could constantly transmit the car's position to some central database, so if the car is used by a criminal to commit a crime, the police can more easily catch the criminal and prevent him from victimizing more people. The list could go on. Assume that these features become very cheap soon.

     Someone is killed by a drunk driver who's been driving erratically at 80 miles per hour for 15 minutes (enough time that the police might have stopped him had they known). Moreover, the driver had been in a hit-and-run several days before, and if his location had only been tracked, he wouldn't have been on the loose to kill again. The victim's family sues the car company, for negligent design: The car company could have decreased the chance that the car could be used by criminals to kill people, but it didn't do so. The court says, "Yes, that's right; making cars without these features is negligent, because adding these features could save many lives at little cost." Car manufacturers now know that if they want to avoid billions of dollars in aggregate liability, they have to add the features.

     Is that good? Again, I don't think so. Perhaps one day we'll decide that we have to sacrifice our privacy this way. But that privacy/safety tradeoff should be made through the democratic process, and not by judges.

     My claim, then, is that there's a substantial set of decisions that judges shouldn't be making, even applying negligence standards under the tort law. I think that category includes deciding that manufacturers should (on pain of vast liability) cut off distributors -- potentially destroying the distributors' businesses -- for conduct that might have been entirely outside the distributors' control, for conduct that the distributors were never convicted, tried, criminally accused, or even held civilly liable, and in ways that deprive a neighborhood's residents of convenient access to devices that in most states they are constitutionally entitled to own. If legislatures want to impose such a rule, I can understand. But judges ought not.

     I realize that common-law judges have often does this sort of thing, at least in some situations -- though, as my examples show, I think even advocates of a vibrant common law would say that some tradeoffs should be left to the people or their representatives. But I don't think they should be doing it now. And while the line between permissible application of negligence standards and impermissible ones (such as the judge-imposed driving age, or the judge-imposed requirements that cars have various self-reporting features) may not be clear, my argument is that the requirements that the Ninth Circuit's decision would implicitly impose are on the improper side of the line.

     Or, rather, one of my arguments. My points about the need for federal preemption, so California law doesn't end up governing the other 49 states, are quite independent of this.

 
[David Bernstein, 11/20/2003 02:26:10 PM]
Lawsuits Against The Solomon Amendment: This week's Harvard Law Record carries my op-ed supporting expressive association objections to the Solomon Amendment (requiring universities to treat military recruiters like all other recruiters, despite the military's policies regarding gays). I also note, however, that many opponents of the Solomon Amendment are, shall we say, inconsistent in their support of expressive association. For example, some law professors who have signed on to a lawsuit claiming that Yale Law School has a First Amendment right to discriminate against military recruiters have argued that the Boy Scouts have no First Amendment right to discriminate against gays. (I didn't sign over exclusive rights to the piece to The Record, so if any Conspiracy readers edit law school newspapers and want to reprint it, feel free.)

 
[Eugene Volokh, 11/20/2003 01:07:47 PM]
No trial, no proof, you lose your business -- that's what the law says: I mention this a couple of posts down when talking about gun manufacturer liability and federal preemption, but I think this is worth stressing independently as well.

     The heart of the Ninth Circuit's negligent distribution theory is that gun manufacturers are distributing guns in an unreasonably dangerous way. We're not saying guns can't be distributed at all, the panel says; the manufacturers just have to distribute them in ways that decrease the likelihood that guns fall into criminals' hands.

     That sounds good in general, until you get to the details. The Ninth Circuit's decision is short on details about what exactly the gun manufacturers are doing wrong. Clearly selling guns knowing that some of them will end up in the hands of criminals isn't enough: That, after all, is equally true of alcohol, knives, cars, baggies, and a variety of other products.

     Here's the most specific point that the Ninth Circuit makes. (There are others, two of which I mention a few posts down, but this is the most concrete one; recall that these are allegations by the plaintiffs, but the Ninth Circuit says that if they are proven factually accurate, the jury may impose liability based on them.)

The ATF has provided Glock with the names of the distributors who are responsible for the sales of guns that end up in the hands of criminals, but Glock has ignored the information and continues to supply these same distributors.

Sounds bad, no? But note exactly what is being said. The ATF has not told Glock that these distributors are losing their federal firearms licenses. It hasn't told Glock that they're under indictment. It hasn't told Glock that ATF has found probable cause to believe they are acting criminally, or even negligently. It has only told Glock that somehow -- quite possibly with no fault on the distributor's part -- a disproportionate number of the guns are ending up in criminals' hands.

     Maybe that's because the distributor is indeed acting criminally or negligently. But maybe he just sells guns in a part of town where there's an unusually high number of criminals; he may be acting completely properly (he can't tell which buyers are criminals or people buying on behalf of criminals, and which aren't) but it turns out that some fraction of the guns end up in criminals' hands.

     To exclude the distributor under these circumstances, I think, would be a form of redlining: He'd lose his livelihood because of the part of town that he's in, and other residents (who may need guns to protect themselves from their criminal neighbors), would find it much harder to get such guns. If Glock did this on its own, it would be accused of unethical conduct, maybe even race discrimination (if the crime rates in the area are correlated, as they often are, with race). But that's what the Ninth Circuit says Glock must do, on pain of megabuck liability.

     If the California legislature enacted a law saying that manufacturers had to cut off distributors in such situations -- with no proof, whether beyond a reasonable doubt, by a preponderance of the evidence, or anything else, of the distributor's misconduct -- I think people would quite properly object. There'd be zero due process here, zero protection for the distributor's rights, zero opportunity for the distributor to show that this isn't his fault, and zero concern for the distributor's lawful customers.

     I expect that this would arouse a lot of opposition. Maybe it would also arouse support: Maybe legislatures would conclude that the interest in fighting crime justifies this extraordinary rule. So far, legislatures haven't been swayed by such arguments; remember that the plaintiffs are stating a general negligent distribution theory precisely because there are no specific statutes prohibiting Glock's conduct. But maybe some day they would be.

     But here the Ninth Circuit just imposes this sort of rule on its own, because of the views of two unelected and unaccountable judges (this was a 2-1 panel decision). And there's not a word of concern about whether it's fair to the law-abiding distributors throughout the nation (not just in California) who, under the Ninth Circuit's decision, would essentially lose their small businesses with no trial and no proof that they did anything wrong.

 
[Eugene Volokh, 11/20/2003 12:50:15 PM]
Alcohol manufacturers sued: Alcohol manufacturers, it is claimed, "knowingly participate in and facilitate the secondary market where persons who are illegal purchasers . . . . obtain their alcohol." (That secondary market happens when people who are over 21 buy alcohol, and then sell it to, give it to, or share it with, their friends.)

     They "fail to exercise reasonable care to protect the public from the risks created by" this: For instance, even though they know that some distributors sell a disproportionate amount of the alcohol that ends up in minors' hands -- those would be liquor stores and supermarkets in college towns, and near other concentrations of under-21-year-olds -- they "continue[] to supply these same distributors." They "create[ an alcohol] market that is oversaturated," in that they know for a fact that there's more alcohol sold in the U.S. than is needed to serve the lawful desires of American adults (by definition, since some of the alcohol does end up in the hands of minors.)

     They "fail to utilize basic training instruction that would help dealers and distributors recognize straw buyers or avoid distribution to illegal purchasers." Apparently they're so ruthless that all they expect their dealers to do is card their customers, rather than developing elaborate profiles of likely straw buyers, and demanding as a contractual matter that distributors not sell to people who fit that profile (even though it's perfectly legal under state law for people to buy alcohol when they fit that profile).

     That's why whenever someone is killed by an underage drunk driver, or victimized by a crime committed by someone under 21 who was drunk, they are suing alcohol manufacturers -- and the Ninth Circuit says that they should win.

     OK, that's not exactly right; what I've just said above is nearly exactly true for guns under the Ninth Circuit decision. There are no lawsuits against alcohol manufacturers. Yet. But the logic of the Ninth Circuit's decision seems exactly applicable to alcohol manufacturers. If you think the result is silly -- or even unduly restrictive of liberty, because it will interfere with some lawful alcohol users' ability to buy alcohol -- then it's equally so for guns.

     Incidentally, the best estimates I've heard suggests that about as many innocent bystanders are killed as a result of the misuse of alcohol each year in the U.S. as are killed a result of the misuse of guns. The total number deaths, including self-inflicted ones, is three times more for alcohol than for guns.

 
[Eugene Volokh, 11/20/2003 12:37:37 PM]
Why Congress should step in: Some people have argued that Congress should stay out of the gun manufacturer lawsuits, because each state should set up its own law. That's often a good argument -- if each state's law basically just affects conduct in that state. But the Ninth Circuit gun manufacturer case shows why Congress needs to step in.

     The plaintiffs' theory, which the courts said would (if supported by the facts) allow a jury to find Glock liable for negligent distribution, is that Glock distributed guns in a certain way:

Plaintiffs allege that Glock’s marketing and distribution strategy includes the purposeful oversupply of guns to police departments and the provision of unnecessary upgrades and free exchange of guns with police departments to create a supply of post-police guns that can be sold through unlicensed dealers without background checks to illegal buyers at a profit. Glock allegedly targets states like Washington, where the gun laws are less strict than in California, in order to increase sales to all buyers, including illegal purchasers, who will take their guns into neighboring California. The ATF has provided Glock with the names of the distributors who are responsible for the sales of guns that end up in the hands of criminals, but Glock has ignored the information and continues to supply these same distributors.

So apparently

1. Washington State -- the place where the gun used in the shooting was originally sold -- has decided, as a policy matter, to have less strict gun laws.



2. Washington police departments have decided that it's in their interests to take advantage of Glock's police-frendly terms (the gun was originally sold to the police department, which then exchanged it because it decided it was too small).



3. Washington has chosen not to mandate that gun manufacturers cut off sales to distributors whenever the ATF finds that some of the guns the distributors sold were used in crime. Maybe Washington decided that many of these distributors might be quite innocent of any wrongdoing, and just have the misfortune of being located in a bad part of town, where a higher number of customers than normal is, unbeknownst to the distributor, criminal. Or maybe Washington decided that it isn't fair to demand that manufacturers cut off businesspeople's livelihoods -- and to deprive the businesspeople's legitimate customers of convenient access to products that are constitutionally protected by Washington's right to bear arms provision -- simply on the suspicion that they're somehow doing something wrong, without any trial or even hearing to prove that the distributor was misbehaving. Maybe Washington concluded that the better approach is to leave the policing of distributors to, well, the police (state and federal).

     But under the Ninth Circuit's interpretation of California law, none of that matters. To avoid liability should their guns end up being used in crime in California, gun manufacturers must modify their practices in all 50 states. They have to "negotiate contracts with distributors" -- even those in Washington or Texas or Vermont -- that impose more stringent rules than those required by that state's law. They have to stop "oversupply of guns to police departments and the provision of unnecessary upgrades and free exchange of guns with police departments," even in those states where the police departments really value those features. They have to stop supplying distributors in Washington, Texas, and Vermont whenever the ATF tells the manufacturer that more than the usual number of the guns the distributor sold ended up in criminals' hands -- even if there's no proof of any wrongdoing on the distributor's part, and even if the distributor is in a state that doesn't require such treatment of distributors.

     So California law (as interpreted by the Ninth Circuit) ends up imposing its rules on all the other states in the union. The Ninth Circuit argued that this doesn't itself violate the Commerce Clause; I'm not expert enough in this area of the law (the so-called dormant Commerce Clause) to tell for sure. But surely this is ample reason for Congress to step in, and stop California from imposing its gun control policies to other states. (Incidentally, this was also a good argument for a nationwide, rather than statewide background check law, so that lenient states can't impose their gun control policies on other states; any objections to such a background check law would have to focus on reasons other than federalism.)

 
[Eugene Volokh, 11/20/2003 11:52:04 AM]
Ninth Circuit panel allows lawsuit against gun manufacturer: The decision is here. I'm reading it right now, and might (or might not, if I get too swamped) have thoughts about it soon. One thing I feel I can say even at the start: If this is just a decision that purports to apply California law -- as it seems to be -- then there's virtually no chance that the U.S. Supreme Court will agree to hear it. The U.S. Supreme Court's general view is that lower court decisions purporting to apply state law, even if mistaken, don't create important enough national issues for the U.S. Supreme Court to hear them. One could argue that it's different when such decisions threaten to affect a national market, but I doubt the Court will find that reason enough to accept the case.

     The defendants could still ask for rehearing en banc by the Ninth Circuit, though the Circuit, too, is reluctant to hear state-law cases en banc. The theory is that if the California Supreme Court disagrees with the Ninth Circuit's interpretation of the law, it may eventually -- not in this case, which is before the Ninth Circuit and thus not appealable to the California Supreme Court, but in other cases -- correct the matter itself.

     Of course, if Congress enacts the bill preempting gun manufacturer liability, then California law would be preempted. Also, if I recall correctly, the latest version of the Congressional bill purported to apply retroactively, so if the bill is enacted before a final judgment in this case (which should take years, since there hasn't been a trial yet -- the Ninth Circuit's ruling relates to a motion to to dismiss), then it would presumably preempt this very litigation, and not just future litigation.

UPDATE: I mentioned that the California Supreme Court may eventually change the rule -- since it's a state-law rule that the Ninth Circuit is purporting to develop -- but not in this case. As reader Dilan Esper points out, it's possible that the California Supreme Court will get involved in this very case; but it's quite unlikely. For that to happen, the Ninth Circuit would have to agree to rehear the case en banc, certify the issue to the California Supreme Court (i.e., issue an order asking the California Supreme Court to provide its view of the issue), and then resolve the federal litigation in accordance with the California Supreme Court's judgment.

     But I think it's unlikely that the Ninth Circuit will consider it en banc (possible, but unlikely); and even if it does, it's far from certain that it will certify the case. This panel, for instance, didn't certify, and the dissenting judge didn't object to the failure to certify. It's within the federal judges' discretion to decide whether to certify or to resolve for themselves how they think the state courts will answer the question; and then it will also be within the California Supreme Court's discretion to decide whether to answer the question, or punt it back to the federal judges. So I do think that it's unlikely that the California Supreme Court will get involved in this very case.

FURTHER UPDATE: The one possible reason the U.S. Supreme Court may hear the case is the Ninth Circuit's holding that liability in this case -- based mostly on conduct in Washington -- doesn't violate the Commerce Clause. I just don't think that it's very likely that the Court will consider this issue, unless there's a circuit split on the matter (which I doubt). Moreover, that the case is still in its pretrial stages further cuts against the Court's willingness to hear it, at least at this stage.

 
[Jacob Levy, 11/20/2003 11:15:35 AM]
A hypothetical question... And a good faith one, not a rhetorical one.

Suppose that a state legislature forbade recognition of, or even (on the model of the polygamy statutes) criminalized, marriages between persons at least one of whom was known to be infertile. Suppose that it did so for the stated purpose of affirming the societal commitment to marriage's cerntral function as the primary site of childrearing.

Would such a statute be constitutional (under the federal or most state constitutions), according to the jurisprudential theories of those most strongly opposed to the Massachusetts case?

It would not be constitutional under current law, of course. Prisoners, even life prisoners with no privileges of conjugal visits, have been held to have a constitutional right to marry. (Life prisoners with the privilege of conjugal visits have that right, as well, meaning that there is constitutional protection for marriages that are guaranteed to produce either children born in prison or children raised by de facto single mothers, which seems to fit the description of the catastrophe that Stanley Kurtz is always warning about.) Moreover, the Griswold-Roe-Casey-Lawrence line of decisions plausibly means that the state may not penalize reproductive choices such as voluntary sterilization by denying the sterilized state benefits unless those are pretty completely discretionary ones. That is, even if marriage were not recognized as a constitutionally protected right-- despite the lack of textual support, one might add for the benefit of those who think the Ninth Amendment an "inkblot"-- I doubt that the courts would look favorably on the attempt to deny marriage benefits to the sterile.

But under the theory of those currently in a panic about judicial tyranny, and those who insist that the natural status of the two-parent heterosexual childbearing family is entitled to a priviliged legal position-- indeed, is entitled to be understood as the whole point of having marriage at all-- would it be appropriate for a court to second-guess the legislature's judgment that that position would be better protected by denying marital rights to the sterile?

I am not asking whether opponents of gay marriage also oppose sterile marriage. I know that they do not (at least, I know that all the ones I read do not). I'm asking how we are to understand the argued-for state purpose in banning gay marriages, and the claim that the judiciary should not override the legislature's pursuit of that purpose. Would it be constitutional (not "wise," "purdent," or "sound as a policy matter") for a legislature to limit the marital rights of heterosexuals in the interest of protecting the conservative understanding of marriage's social purpose and status?

Note, by the way, that there is some precedent in the direction of permitting legislative discretion over eligibility for marriage. States appear to have considerable discretion to define the incestuous-marriage prohibition differently. Cousins who would be legally eligible to marry in one state are not in another (even if sterilized); and the courts do not appear to hold that the rights of cousins in the second state are thereby violated.

UPDATE:
I've just now been reading the Rauch-Rosen debate over at TNR. Rosen reconstructs the Massachusetts argument as follows:

Creating the social pressure that encourages heterosexual men to procreate and raise children in monogamous relationships with heterosexual women is a rational state interest. It's rational because the best evidence suggests that children are best off when they're raised in stable families by their biological parents. Although straight and gay couples who adopt may be wonderful parents, the state has an interest in reserving the special social status of marriage for a relationship that it considers the ideal atmosphere for raising children. And since empirical studies presented to the Court disagree about whether adopted kids raised by straight and gay parents do as well as kids raised by their biological parents, a rational legislator could conclude that those couples shouldn't be described in the same way as two married parents who raise their biological children together.

And he concludes that these are sufficiently plausible reasons, and that one could at least plausibly-enough imagine a relationship between them and the ban on gay marriage, that the ban passes rational basis scrutiny (which he construes as something like a laugh test, a matter about which there is controversy-- not everyone agrees that a law has to be laugh-out-loud absurd in order to fail rational basis scrutiny). I think this is a good and fair reconstruction of the argument, though I disagree with Rosen's evaluation of the argument's legal merit.

And my question is: if that argument were legally valid, would it not sanction restrictions on sterile heterosexual marriages as well? Not: would it require such restrictions? But rather: wouldn't it deem such restrictions constitutional, because they have at least as much (arguably more) of a relationship to those purposes as the restriction on gay marriage?

(Why 'arguably more'? Because gay couples simply can't biologically procreate, regardless of the marriage policy. But the stated rationale would seem to say that the state may legitimately disfavor voluntary sterilization and to provide an incentive for refraining from such sterilization, where the couple is otherwise biologically capable of procreation. The ban on gay marriage does less to favor procreation than a ban on the marriage of sterile heterosexuals, especially voluntarily sterile heterosexuals.)

 
[David Bernstein, 11/20/2003 06:10:50 AM]
Michael Jackson: The last boy who accused Jackson of molestation received a $12 million settlement even though his claim was uncorroborated, and, in the view of many who followed the case closely, of dubious veracity. Given the obvious financial incentive of a family to fabricate a claim, it's going to be awfully tough to get a conviction in the current case unless the police have turned up additional evidence.

 
[Eugene Volokh, 11/20/2003 05:56:07 AM]
"Southern drawls have thwarted voice recognition equipment used by the Shreveport Police Department to route non-emergency calls." (Thanks to GeekPress for the pointer.)

 
[Tyler Cowen, 11/20/2003 05:03:35 AM]
Gay marriage and immigration: For some time now I have been interested in the immigration implications of allowing gay marriage. The connection is obvious. If one gay spouse had residence privileges in the United States, or citizenship, he or she could apply to bring over the other member of the couple as a spouse. We all know the strong preferences that our immigration law gives to spouses.

Obviously, gay couples would be much more likely and able to come to the United States, and this holds more broadly for the entire families, such as the parents of members of the gay couple. I suspect that over time the total number of immigrants would go up. It is not so simple, there are also crowding out effects when quotas are binding, still I will stand by the prediction.

I also can imagine a somewhat severe backlash. Some percentage of these gay marriages will be immigration-induced, some would use the rougher word "fraudulent," just as is the case with hetero immigration marriages. If two male Mexicans marry, for immigration-related reasons, and later it turns out they are not really gay, it would make for a juicy news story. The American public might fear, rightly or wrongly, that immigration-induced gay marriages would be more common than immigration-induced hetero marriages. On one hand, you could argue that the immigration-induced gay marriage would be less likely, given that most cultures do not tolerate homosexuality as America does. On the other hand, perhaps the gay unions would so obviously be non-marriages to the relevant ethnic community, that they could in fact be less burdensome in terms of the relevant cultural norms.

My general stance is sympathetic to immigration, so I am not very worried by these developments, but of course some people will be. If you have any good information about the likely scope of these issues, please send it to me, if I get anything of general interest I will pass it along to VC readers.

Wednesday, November 19, 2003

 
[Eugene Volokh, 11/19/2003 07:40:10 PM]
Message from my friend in London: A couple of people e-mailed to point out that the message from my friend in London (about the small size of the anti-Bush demonstrations) was also quoted by Kathryn Lopez at The Corner. The messages expressed some surprise, but I can't quite see why. Presumably my friend knows Lopez, too. (Not terribly odd that Lopez and I, who are in the same broad field -- public policy commentary -- would have friends in common.) The message I got was one of those missives-to-a-bunch-of-people that most of us send on occasion, especially when we think we have some interesting tidbits to pass along. I asked him for permission to post it; he kindly said yes; I take it the same happened with Lopez.

     I realize that in print media, it's considered a serious faux pas when an author prints the same op-ed in two different outlets at once. But that may have something to do with the fact that readers generally pay money for print media, and print media generally pay money for op-eds.

     My friend got paid $0.00 for his report; I can't very well expect exclusivity for that, can I? I'm just pleased he sent it to me, and I hope our readers are pleased that I published it. And if the small fraction of Conspiracy readers who also read The Corner see the same material in both places, I don't think they'll be much harmed by the experience.

 
[Eugene Volokh, 11/19/2003 06:32:51 PM]
Apropos the "slave" post below, it's funny, but it's also a bit scary. Note the language of the need to "ensure a work environment that is free from any discriminatory influence" -- a clear and doubtless intentional echo of "hostile work environment" law (the theory of which is precisely that speech that offends some groups creates a "discriminatory" "work environment"), which may lead to huge government-imposed liability for supposedly offensive speech, and not just strained relations with a buyer. Fortunately, I know of no harassment cases involving "slave" yet, but who knows?

     Here's the closest (albeit necessarily imperfect) analogy: "gender-biased" job titles. Say what you will about calling a job "draftsman" or putting up "Men Working" signs, but whether or not it's insensitive, I think the government has no business trying to suppress such expression. Still, one court has said that coworkers' use of job titles such as "foreman" and "draftsman" may constitute sexual harassment, and a Kentucky human rights agency has gotten a company to change its "Men Working" signs (at a cost of over $35,000) on the theory that the signs "perpetuat[e] a discriminatory work environment and could be deemed unlawful under the Kentucky Civil Rights Act." I've said it before, and I'll say it again: This is the latest front in the free speech battles, especially in workplaces (including places such as libraries, colleges, and such), but also in universities and places of public accommodation. And quite often, free speech is losing.

     See Tunis v. Corning Glass Works, 747 F. Supp. 951, 959 (S.D.N.Y. 1990), aff'd without opinion, 930 F.2d 910 (2d Cir. 1991) (a few more details here); American Law Institute-American Bar Ass'n Continuing Legal Education, Legal Problems of Museum Administration -- Sexual Harassment: Definition, Prevention, and Treatment, C989 ALI-ABA 215 ("Some examples of behaviors that may be sexual harassment are: . . . Using belittling expressions to refer to women such as . . . 'line lady' instead of 'line worker,' or 'janitress' for a female janitor."); Kentucky Comm'n on Human Rights, Human Rights Report, Spring 1994, at 2 (stating that "use or distribution of sex-biased signs 'can be viewed as perpetuating a discriminatory work environment[,]' [which] is deemed unlawful under the Kentucky Civil Rights Act"); id. at 2, 6 (describing similar actions taken against three other companies, based on "Men Working" and "Flag Men Ahead" signs); Andrew Wolfson, All Worked Up . . . Phone Company Called to Task over Gender-Biased Signs, Louisville Courier-J., Mar. 3, 1994, at 1B.

 
[Eugene Volokh, 11/19/2003 06:09:01 PM]
Unintentional self-parody: This e-mail was sent to various technology vendors to the County of Los Angeles; I've confirmed that it was indeed sent by the e-mail address listed in the From line, and when I verified it with the sender, I got no indication that it was anything but dead serious. Emphasis added by me:

From: Los Angeles County [mailto:brojas@isd.co.la.ca.us]
Subject: IDENTIFICATION OF EQUIPMENT SOLD TO LA COUNTY

The County of Los Angeles actively promotes and is committed to ensure a work environment that is free from any discriminatory influence be it actual or perceived. As such, it is the County's expectation that our manufacturers, suppliers and contractors make a concentrated effort to ensure that any equipment, supplies or services that are provided to County departments do not possess or portray an image that may be construed as offensive or defamatory in nature.

One such recent example included the manufacturer's labeling of equipment where the words ''Master/Slave'' appeared to identify the primary and secondary sources. Based on the cultural diversity and sensitivity of Los Angeles County, this is not an acceptable identification label.

We would request that each manufacturer, supplier and contractor review, identify and remove/change any identification or labeling of equipment or components thereof that could be interpreted as discriminatory or offensive in nature before
such equipment is sold or otherwise provided to any County department.

Thank you in advance for your cooperation and assistance.

[name omitted by Volokh], Division Manager
Purchasing and Contract Services
Internal Services Department
County of Los Angeles

Amazing. Thanks to BoingBoing for pointing me to this.

UPDATE: Just to put this in perspective -- "master" and "slave" are common terms in the computer industry, where some hardware device or software process is seen as being in charge, and the other seen as taking orders from the former. The software I wrote for the HP 3000, for instance (MPEX/3000), has procedures in it that create "slave processes" to execute particular operations under the control of the master process. Of course, the HP 3000 operating system also has a procedure called KILL to terminate processes, whether masters or slaves; lots of other operating systems, I'm sure, use these terms, too.

 
[Eugene Volokh, 11/19/2003 05:59:48 PM]
I share a haiku with Cryptonomicon -- cool! From Greg Goelzhauser:

not sleeping at night
reading Cryptonomicon
no tax code for me

sleeping now in class
too much Cryptonomicon
it's Prof Volokh's fault

Yup, Cryptonomicon does have that effect. Did I mention recently what a great novel it is?

 
[Jacob Levy, 11/19/2003 01:33:40 PM]
Still considering launching "Libertarians for Lieberman:" Today's Lieberman talking point:

Joe Lieberman issued the following statement in response to Howard Dean's proposal to "re-regulate" leading sectors of the economy:

"Howard Dean doesn't understand how Bill Clinton created 22 million jobs in 8 years. By responsibly deregulating markets, Bill Clinton allowed exporters to sell more American products to foreign markets and brought competition to existing monopolies.

"Howard Dean would usher in a new era of big government with his re-regulation proposal. He would give us a treacherous trifecta of policies that turn back the economic clock: new trade barriers, a larger tax burden on our middle class, and now bigger bureaucracy. Either he doesn't know how to turn the economy around, or this is another reckless mistake.

"We need to toughen the integrity of our marketplace, put real enforcers in regulatory posts, and put wrongdoers in jail. We don't need to cripple the economy with a whole new set of broad re-regulation as Howard Dean proposes."

I know that there's plenty in Lieberman's platform and record to be very edgy about. But I want a candidate who will say this sort of thing to Dean's call for massive re-regulation. I want a candidate who has something like a commitment to free trade rather than a commitment to its opposite. At least, I want a candidate like that to do better than embarrassingly badly in the Democratic primaries, because "embarrassingly badly" could spell the end of the New Democratic turn to the market, such as it was. If Lieberman at least racks up some respectable numbers against Dean then the New Democrats might be able to regroup. If the only real challenge to Dean were to come from, say, Gephardt-- in the race to challenge a Republican president who, it is increasingly clear, no longer even feels compelled to pretend to be a free trader-- then really unpleasant things follow for American politics in the years to come.

 
[Eugene Volokh, 11/19/2003 12:41:56 PM]
"A superb 9/11 design loses on a technicality": An interesting Slate story. I'm sorry to hear it has been rejected, despite the acclaim and weird technicalities that it has received. (Incidentally, Fred Bernstein, the submitter, is a very good friend of mine, and a mensch.)

 
[Randy Barnett, 11/19/2003 12:24:36 PM]
Understanding the Istanbul synagogue bombings: Christopher Hitchens on Al Queda's Latest Target. Here is a taste:

The worshippers at the Neve Shalom were not killed for building a settlement in the West Bank: They were members of a very old and honorable community who were murdered for being Jews. Their Turkish neighbors were casually murdered as "collateral damage."

But Hitchens' main theme is this:

It's pretty safe to say that the large majority of those murdered by Islamic holy warriors have not been Europeans or Americans as the term is usually understood. This is why I disagreed with the president when he described Sept. 11 as an attack "on America." It was true, but it was not the truth. The current jihad is still waged chiefly against Muslim states and societies and, as Istanbul proves, not just against dictatorial ones.

 
[Sasha Volokh, 11/19/2003 12:16:14 PM]
I'm famous! Check out this "op ad" from TomPaine.common sense, "A Public Interest Journal." It appeared on the op-ed page of the New York Times today. Observe where it says:

And a favorite of the Bush administration, the Competitive Enterprise Institute (big bucks from big tobacco), actually advises Americans to "light up, giving a filter-tipped finger, as it were, to a health-obsessed government."

Sadly, that article of mine, called "Lighten Up," isn't up on my web site yet. But these guys are associated with PR Watch, which "offers investigative reporting on the public relations industry" and "help[s] the public recognize manipulative and misleading PR practices by exposing the activities of secretive, little-known propaganda-for-hire firms that work to control political debates and public opinion," as I explained in this past post. On PR Watch's own web page, they said:

The tobacco industry has been a regular funder of the Competitive Enterprise Institute, which in turn has gone to bat repeatedly and eagerly for tobacco in its battles with government agencies such as the Food and Drug Administration and the Environmental Protection Agency. Following the 1993 release of EPA's risk assessment linking secondhand cigarette smoke to lung cancer, CEI cranked out opinion articles for major newspapers with titles such as "A Smoking Gun Firing Blanks," [and] "EPA's Bad Science Mars ETS Report."

CEI policy analyst Alexander Volokh went even further. "Perhaps, in the fine tradition of civil disobedience championed by Thoreau, we should even think of smoking as a civic duty," he wrote in the July 1994 issue of the CEI Update. "Perhaps," he continued, "every January 11th -- the anniversary of the Surgeon General's original 1964 report on smoking -- we should all light up, giving a filter-tipped finger, as it were, to a health-obsessed government." Volokh admitted that the government's efforts to discourage smoking "may further the cause of health," but concluded that "there are things more valuable than health."

Also sadly, today's New York Times ad doesn't mention my name. Maybe I should sue?

 
[Eugene Volokh, 11/19/2003 11:48:57 AM]
"Voodoo polling": Iain Murray reports:

[T]he Evening Standard engages in voodoo polling when it claims Londoners "don't want Bush visit":

In response to the question 'Is this the right time for President Bush to visit the UK?', 66 per cent of 1,834 voters answered no, while only 34 per cent said yes.
Now that might be worrying, if it wasn't for the fact that this finding is junk, being based on an internet poll on the Standard's website. It has no, repeat no, scientific validity of any sort, being a self-selected unrepresentative sample.
Even worse is the question they're currently asking:

And asked what their principle (sic)objection was to Bush's state visit, 29% of the 1625 respondents cited the war on Iraq, while 20% said it was the policing costs.
Take a quick gander at the poll and you'll see the question does not allow for the answer "I have no objection"! This is push polling of the worst sort, even for a voodoo poll.

Iain's site has all the links through which you can confirm this; I've checked them myself, and he's quite right. Shameless. And shameful.

 
[Jacob Levy, 11/19/2003 09:05:50 AM]
No time to write anything of my own today: So I'll point you to a two interesting jurisprudential matters elsewhere.
Nate Oman: Are the basic rules of private law a part of the basic structure of society? An excellent and important question, one that Nate is right to say has attracted too little attention from philosophers.

Brian Leiter (yes, really): The Strange Case of Ronald Dworkin, Part I:

"The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me--and, I venture, many others by now--that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt."

I think Leiter's argument here is right, and that the point is a very important one for both research and teaching in jurisprudence. The Hart-Dworkin commentary in the attached paper is well worth reading as well. I'm going to spend some time wrestling with his commentaries on Finnis and Perry, but these are less likely to be of interest to the casual reader.

And no, I'm not too busy to blog because I'm off watching the Two Towers extended version or because I'm at a Gay Marriage Day celebration, though both would have been plausible guesses. Just mundane work. But while we're on the topic of gay marriage, I'll make a futile plea. It's the Supreme Judicial Court of Massachusetts. I suppose "Massachusetts' supreme court" might be correct, if "supreme court" is a generic kind like "highest court." But "Supreme Court" is not correct.

 
[David Bernstein, 11/19/2003 07:38:22 AM]
Self-censorship on Campus: In this op-ed, I wrote, "Professors can largely avoid offending students and inviting the possibility of being accused of fostering a hostile environment by simply avoiding discussion of certain topics in the classroom: no talk about sex, race relations, gender and racial equality, or other controversial topics." After reading this, a friend of mine who teaches at a major state university sent me an email with a very short message: "That's what I do." UPDATE: Another reader writes, "That's what I did when I taught on campus. That's what my husband does, and continues to do." I think you get the idea.

 
[Eugene Volokh, 11/19/2003 07:08:50 AM]
London calling: (UPDATE: For more on the breaking Volokh Conspiracy / Corner scandal known as "e-mail-to-a-bunch-of-friends-gate," see here.)

A friend of mine, whose judgment and accuracy I very much trust, writes this from London:

As you probably know, THE story in the press (at least over here) has not been President Bush's state visit to London, but rather the "huge" demonstrations and "direct action" campaigns that were supposed to greet him. (Here's the main protest web site: http://www.stopwar.org.uk.) (Indeed, some have complained here that the BBC and the Guardian have worked hard to facilitate these protests.)

We are living in the heart of things -- in Trafalgar Square -- and, for what it's worth, can report that there is nothing of any substance going on at all. It's quite quiet -- people are going about their business, but the usual buzz of tourist activity has slackened a bit. The first round of scheduled protest events involved a big talk by prominent left-leaning activists, and drew about 2,000 people. Then, about 1,000 marched through Oxford Street to protest the Bush Administration's environmental policies. The thousands who were supposed to greet him at Buckingham did not materialize -- there were maybe 100. Right now (Wednesday afternoon), just after the President's big talk, there are a few hundred people milling around Trafalgar Square, a women's prayer circle, and some people congratulating themselves for putting red-dye in the fountains (get it?). The crowd is a little bigger than the crowd two days ago, who were protesting the ban on feeding the pigeons, but certainly smaller than the crowd last month, who were protesting tuition hikes at universities. The cops were cracking up. There was supposed to be a big "alternative state parade" of cyclists and other folks, but it seems to have fizzled. (There is a helicopter overhead right now.)

At 3 pm, there is supposed to be a big "do" at Buckingham Palace, which I might go investigate. The REALLY big event, we're told (the organizers keep downplaying expectations as the day goes by), will be on Thursday, when the statue of President Bush is pulled down (get it?).

I'm not sure what you all are reading back home, but it is simply not the case that the UK -- or even London -- is rising up in anger over the Bush visit. A (small) majority supports the visit, even if a (slight) majority oppose him and the war. Not that different than, say, New York or Washington. My impression is that most Britons -- and even most Londoners -- are no more irritated by the President than by the "protesters." (All this notwithstanding the transparent efforts by the BBC and the Guardian -- which make Fox News and the Washington Times look like CNN and the Boston Globe -- to stir up opposition).

 
[David Bernstein, 11/19/2003 06:29:07 AM]
Discriminatory Personal Ads: A while back, a student article in the Harvard Law Review suggested that it should be unlawful to specify racial preferences in personal ads. Note, Racial Steering in the Romantic Marketplace, 107 Harv. L. Rev. 877 (1994). The article was subject to widespread ridicule, including, as I recall, by a Michael Kinsley column in the New Republic. But what seems ridiculous one day becomes the law the next. In England, a pub landlady was recently ordered by the local antidiscrimination authorities to rub out a chalkboard advertisement for a "single white male" because the ad was "racist." (via Tounguetied)

As I wrote in You Can't Say That!:

When one honestly applies the logic of the antidiscrimination movement, it is difficult to fault the law review article’s conclusion that personal ads should be forcibly shorn of discriminatory preferences. Modern antidiscrimination ideology suggests that those who refuse to date (and, therefore, to ultimately marry) members of certain groups should be punished. After all, discriminatory dating not only offends those excluded, but, given the difference in median wealth among groups, it is also a leading cause of societal inequality. Taken to their logical ends, antidiscrimination principles suggest that singles in the dating market should be prohibited from preferentially choosing African Americans or whites, the able-bodied or the disabled, Catholics or Protestants, or even same-sex or opposite-sex partners, lest offense and inequality result.

I went on to call this a reductio ad adbsurdum demonstrating the need for constitutional limits on antidiscrimination laws, but sometimes I wonder whether everyone agrees that it's absurd.

 
[David Bernstein, 11/19/2003 05:51:01 AM]
The ACLU and the Second Amendment: The ACLU of Massachusetts website has a page containing the text of the Bill of Rights. Only the Second Amendment has a hyperlink, and this link takes you to a page explaining why the Second Amendment purportedly does not, in any way, protect an individual right to bear arms. I find it ironic, and almost humorous, that this page conistently appeals to "original intent" (though not, in my view, accurately, as co-bloggers Eugene and Randy, among others, have discussed). After all, the "original intent" of the Establishment Clause was almost certainly both to prevent the establishment of a national official church, and to prevent the federal government from interfering with the establishing of official state churches. [Edit: This interpretation is also supported by the text, which doesn't just forbid establishment of an official national church, but states that"Congress shall make no law respecting an establishment of religion," i.e., including telling the states what to do.] I won't hold my breath waiting for the ACLU of Massachusetts to adopt that understanding of the Establishment Clause.

As a side note, I should point out that whatever the original meaning of the Second Amendment, the framers of the Fourteenth Amendment pretty clearly had the right to bear arms in mind as among the rights intended to be protected against state interference. Newly-freed blacks and Republican "carpetbaggers" needed weapons to defend themselves against violence by southern whites.

Finally, here is this gem from the same web page:

Q If it doesn’t guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?
A When James Madison proposed the Bill of Rights in the late 1780s, people were still suspicious of any centralized federal government.

Some of us still are. [UPDATE: Well, Eric, what I meant was that some of us are still suspicious of the current federal government, an attitude which the Mass. ACLU oddly (for a civil liberties organization) seems to be disclaiming. But since you asked, yes,I'm suspicious of any centralized federal government, as government has the natural tendency to grow and abuse the citizenry. Suspicious, however, does not mean "opposed;" it means that elections, separation of powers, bills of rights, etc., are needed to keep the government in check.]

UPDATE: Reader Brett Bellemore points me to this page on the national ACLU's website, which purports to be "A History of the Bill of Rights." This page has several errors and misrepresentations, including the claim that the Bill of Rights protects "the right to be treated equally before the law, regardless of social status"* and the preposterous statement that as late as the 1920s the "very right [of labor unions] to exist had not yet been recognized by the courts." Missing from the page is any discussion of the Second Amendment (among others), or any quotations from the actual text of the Bill of Rights. Oddly, there is also no mention of the incorporation doctrine, without which the Bill of Rights still would not apply to the states.

*I agree with the website that the citizens of the early U.S. believed this right was "naturally theirs," so much so that it went without saying. But I don't see it reflected in the text of the Bill of Rights (though, as applied to the states, it is in the Fourteenth Amendment, passed in 1868, which is not part of the Bill of Rights). By the 1920s, the Supreme Court was arguing that the Fifth Amendment's "due process" right included the right of equal protection of the law, and this position was reinforced in a Washington, D.C. desegregation case in 1954, Bolling v. Sharpe. However, this rationale for equal protection was necessitated by the decline of natural rights reasoning by the 20th century; the Founding generation did not need a textual hook for the proposition that government was obligated to treat all citizens equally, and did not include one in the Bill of Rights. The Supreme Court's ultimate rationale for claiming that due process incudes equal protection is that it simply couldn't be possible for segregation to be legal at the federal level but not the state level. This is more of an implicit natural rights argument with a weak textual hook than truly a Bill of Rights-based argument.

Tuesday, November 18, 2003

 
[Eugene Volokh, 11/18/2003 06:20:19 PM]
Possible scenario: Our universe: The Massachusetts Supreme Judicial Court decides that the state constitution secures a right to gay marriage. (Happened.) This substantially energizes and strengthens the pro-Federal Marriage Amendment forces, who are upset at what they see as "judicial activism," in any state, even one that's not their own. (Very likely, despite my post a few posts down; without the Defense of Marriage Act, it would have been nearly certain, I think, but now it's just very likely.)

     The FMA is proposed and passes, because right now gay marriage is still not popular. (Quite likely.) The FMA prohibits all gay marriage, including that enacted by legislatures or the voters. (Quite likely; that's overbroad with respect to the interest in preventing judicial activism, but it's the current draft, which shows that some people like it -- and I doubt that most voters will focus too much on these details.) Ten, twenty, or thirty years from now, when people no longer object much to gay marriage (quite possible, given the trajectory of attitudes towards gay issues, and see here [thanks to InstaPundit for the pointer]), gay marriage will be constitutionally banned, and the constitutional prohibition will be very hard to undo (certain, given these hypotheses). And in the meantime, the symbolic message sent by the law will be "gay marriage is so bad that the Constitution outlaws it" (depends on what you think of symbolism, but it seems to me quite likely).

     Alternate universe: The Massachusetts Supreme Judicial Court, and other courts, hold that it's up to legislatures to decide whether gay marriages are permitted. Ten, twenty, or thirty years from now, when people no longer object much to gay marriage (quite possible, see above), legislatures and initiatives start enacting gay marriage laws (quite likely, given these hypotheses). There's not much backlash in other states, because political attitudes have changed, and because there's no "judicial activism" objection. (Very likely.) And in the meantime, the symbolic message sent by the law will be "gay marriage is a contested matter, which is being fought out in the political process, with an increasing number of states allowing it" (depends on what you think of symbolism, but it seems to me quite likely).

     Now obviously things might go quite differently in our universe than I conjecture, and they might have gone quite differently in the alternate universe. Still, I think these are the likeliest scenarios -- and some of the alternatives might be even worse for the pro-gay-marriage forces. Impossible to know for sure, of course, at least as to half the comparison; it will be interesting to see what happens as to the other half.

 
[David Bernstein, 11/18/2003 03:27:38 PM]
Cab Corruption: Corruption in the Montgomery County, Maryland, taxi licensing system. Not surprising, given the benefits that a licensed monopoly can create. On the other hand, the cab company I use most often, Red Top Cab of Arlington, Va., which also benefits from regulated oligopoly status, seems well-run and efficient.

 
[Eugene Volokh, 11/18/2003 02:47:26 PM]
The benefits of the Defense of Marriage Act for pro-gay-marriage forces: The Massachusetts decision, it seems to me, illustrates the benefits of the Defense of Marriage Act (which says that states need not, and the federal government may not, recognize other states' gay marriages) to the pro-gay-marriage movement. The movement certainly has lots of reasons to dislike DOMA; but this case shows that the movement also has reasons to like DOMA, too.

     There will doubtless be an attempt to overturn this decision through an initiative in Massachusetts. There will also be a renewed attempt to do so through a federal constitutional amendment.

     If there seemed to be a substantial chance that this decision would constitutionally require other states to recognize Massachusetts gay marriages, then these attempts would be vastly strengthened. Gay marriage opponents from California, Texas, and the other states would funnel money into the Massachusetts initiative campaign. They'd lobby their Congressmen to quickly enact the Federal Marriage Amendment. And their position would be very sensible -- they wouldn't be meddling in the affairs of another state; they'd be preventing that state's court from interfering with the practices of their own states.

     DOMA isn't a perfect barrier to the automatic recognition of Massachusetts gay marriages in other states; among other things, there are some constitutional doubts about its validity, though I think it will be upheld. But to the extent that DOMA is seen as a barrier, there'll be much less out-of-state effort expended on trying to overturn the Massachusetts decision. (Not zero, but much less.)

     The Massachusetts decision thus poses, absent DOMA, the risk of a "legal effects slippery slope": The legalization of gay marriages in Massachusetts (A) may have led (again, not certainly but possibly) to other states being required to recognize Massachusetts gay marriages, too (B). DOMA diminishes (not eliminates, but materially diminishes) the risk of this slippery slope -- and therefore makes the first step (A) somewhat more likely to be retained by the Massachusetts voters.

 
[Eugene Volokh, 11/18/2003 01:54:53 PM]
Polygamous and incestuous marriages: By the way, concerns that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible. The court says that the parties "do not attack the binary nature of marriage" or "the consanguinity provisions." (See also footnote 34, "Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.") But the court's reasoning seems to apply equally to those, too.

     The court reasons that "the right to marry means little if it does not include the right to marry the person of one's choice," but while it qualifies this as "subject to appropriate government restrictions in the interests of public health, safety, and welfare," it's far from clear that a court would find that "health, safety, and welfare" would be hurt by adult polygamous marriages (assuming all existing partners in the marriage consent to the addition of another). Likewise for adult brother-sister marriages; as I mentioned several months ago, I think the genetic harm argument doesn't really work here -- after all, we don't generally ban marriages between people who have serious genetic diseases, even if the odds of a defect in their children are much higher than for brother-sister marriages.

     Similarly, the court rejects the government's "foster the best environment for raising children" argument by saying that "It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation." Seems to apply equally to children of polygamous marriages or of incestuous marriages. In fact, why isn't the desire to have multiple committed lifelong partners, or to have a relationship with one's sibling itself a "sexual orientation"?

     I doubt the court would uphold a constitutional right to polygamous or incestuous marriages within the next year or two. But over time, if, for instance, a polygamists' rights movement arises -- not implausible, given that some religions practice polygamy -- a court might well do this, citing the Massachusetts decision as an eminently logically applicable precedent.

     Some might think this wouldn't be very bad; and some might think that, even if it would be bad, it involves a modest probability of only a small harm, and having a constitutional right to homosexual marriage is right enough to justify that risk of a wrong consequence. But I don't think one can ridicule arguments that a constitutional right to homosexual marriage may lead to rights to polygamous or incestuous marriage. Given the text of the Massachusetts decision, the arguments seem eminently plausible.

 
[David Bernstein, 11/18/2003 11:33:26 AM]
Bombs Over Baghdad: A tasteless theme for a fraternity party, yes. But according to the Daily Texan, the Interfraternity Council at the University of Texas is investigating the fraternity involved for "intentionally engaging in a form of harassment." Exactly whom the fraternity is alleged to have harassed is unclear, but the Interfraternity Council Constitution at Texas bans "harassment of any individual or group. Harassment is defined as extreme or outrageous acts or communication that are intended to harass, intimidate or humiliate any individual or group." I think it's far-fetched to suggest that the fraternity was intending to do any such thing, but the concept of "harassment" in the antidiscrimination context has become notoriously malleable.

UPDATE: On Wednesday afternoon, I emailed the IFC's advisor, Brian Perry, to ask which group or individual the fraternity is alleged to have harassed. As of noon on Thursday, he had not responded to my email. If I receive a response, I will let you know.

 
[Eugene Volokh, 11/18/2003 11:07:58 AM]
More "they said it would be like this": An editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." (See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as isaying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little."; Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A (rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages"),

     From Goodridge v. Dep't of Public Health, the Massachusetts Supreme Judicial Court case finding a constitutional right to homosexual marriage:

Several amici suggest that prohibiting marriage by same-sex couples reflects community consensus that homosexual conduct is immoral. Yet Massachusetts has a strong affirmative policy of preventing discrimination on the basis of sexual orientation. See G.L. c. 151B (employment, housing, credit, services); G.L. c. 265, § 39 (hate crimes); G.L. c. 272, § 98 (public accommodation); G.L. c. 76, § 5 (public education). See also, e.g., Commonwealth v. Balthazar, 366 Mass. 298 (1974) (decriminalization of private consensual adult conduct); Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (custody to homosexual parent not per se prohibited).

So the Massachusetts Supreme Judicial Court's decision allowing homosexual marriage partly relied on the passage of that very antidiscrimination statute. Unless the court's argument was just makeweight (possible, but the court must have at least thought that the point would be persuasive to some readers, or else it wouldn't have included it), passage of the employment discrimination bill did take another step down the slope towards homosexual marriage, in the sense that it did make homosexual marriage more plausible. The very same thing happened in the Vermont Baker v. State civil union decision (see pp. 1083-86 of my Mechanisms of the Slippery Slope).

     Again, this doesn't dispose of the merits of antidiscrimination laws, or of gay marriage. Perhaps it was good that the antidiscrimination law helped bring about gay marriage. But this is a reminder not to pooh-pooh slippery slope arguments. In a legal system built on analogy and precedent, where past decisions (even legislative decisions) are used as inputs to future decisions, the slippery slope can be a very real phenomenon -- which is to say that a proposed new legal rule may end up having indirect effects far beyond its own narrow scope.

FURTHER NOTE: More evidence of