Archive | January, 2004

Civil RIghts Undermined by Antidiscrimination Laws:

From the, where you can read the whole thing.

Civil Rights Undermined by Antidiscrimination Laws
By David E. Bernstein

This year marks the 40th anniversary of the Civil Rights Act of 1964. The achievements of the civil-rights movement in bringing about a more just and equal society are undoubtedly well worth celebrating. However, these achievements have not come without costs. In particular, it’s worth pausing to consider the growing threat more recent and draconian anti-discrimination laws pose to American civil liberties.

While the civil-rights laws of the 1960s were generally sensitive to civil libertarian concerns, contemporary anti-discrimination laws often are not. [...]

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From the Borowitz Report:

The Democratic Party ignored the triumph of Senator John Kerry (D-Mass) in the New Hampshire primary last night and instead handed the Democratic nomination for President to the movie blockbuster “The Lord of the Rings: The Return of the King.”

The Democratic nomination brings the film?s total number of nominations to twelve, Hollywood insiders said. . . .

According to Democratic pollster Geoffrey Dandridge, electability was the issue that ultimately catapulted the movie blockbuster ahead of Senator Kerry.

“In a head-to-head contest, ‘Lord of the Rings’ beats Bush in every state but Florida, which is too close to call,” Mr. Dandridge said. . . .

“The only way this movie can lose is if Michael Moore endorses it,” he said.

Thanks to Michael Klein for the pointer. [...]

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John Edwards, Trial Lawyers, and Cerebral Palsy Cases:

An interesting post at Blog 702 on the controversy over whether John Edwards made much of his wealth from bogus malpractice cases involving the representation of children with cerebral palsy. It’s obviously foolish to have such complex issues of medical causation being determined before a nonexpert jury in an adversarial process to begin with, and I can’t really begrudge Edwards, or any other attorney, who play their appointed roles in the system. It’s convenient for civil justice reformers to use wealthy trial lawyers as their public enemy, a good robber barronish foil. And certainly I object when trial lawyers manipulate the political process to their benefit, as they did in many ways during the tobacco litigation. But when they are merely doing their jobs within the system as it exists*, I refuse to demonize them; repeat after me, civil justice reformers: blame the system, not the participants in it.
*For example, current ethical rules for attorneys not only allow but require plaintiffs’ attorneys to utilize out of the mainstream expert testimony that is almost certainly wrong, but that is admissible, helpful to the plaintiff’s case, and potentially persuasive to the jury.
UPDATE: I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be “junk science.” But law professors who specialize in this area have told me that this is indeed the rule in most jurisdictions. I’m pleased to learn from Wally that Arizona has changed the attorney’s duty to act “zealously” for his client–the source of this mischief–to a duty to act “honorably.”
Also, a reader writes:

If being a plaintiff’s lawyer (or defense attorney) consistently required persons to engage in behavior which, though permitted or perhaps even mandated by professional ethics rules,

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Can you fake being crazy?

“In 1972, David Rosenhan, a newly minted psychologist with a joint degree in law, called eight friends and said something like, “Are you busy next month? Would you have time to fake your way into a mental hospital and see what happens?”
…First, there was training. Rosenhan instructed his confederates very, very carefully. Five days prior to the chosen date, they were to stop shaving, showering and brushing their teeth. And then they were, on the appointed date, to disperse to different parts of the country, east to west, and present themselves at various psychiatric emergency rooms. Some of the hospitals Rosenhan had chosen were posh and built of white brick; others were state-run gigs with urine-scented corridors and graffiti-scratched walls. The pseudopatients were to present themselves and say words along these lines: “I am hearing a voice. It is saying thud.”

The individuals were admitted and then for the most part simply ignored, even though they then proclaimed their sanity and behaved normally in every way. Now here is my favorite part:

The strange thing was, the other patients seemed to know that Rosenhan was normal, even while the doctors did not. One young man, coming up to Rosenhan in the dayroom, said “You’re not crazy. You’re a journalist or a professor.” Another said, “You’re checking up on the hospital.”

Thanks to Chris at for the link and his continued excellent blogging. Here is the original story. [...]

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Risk of bribery as a factor in deciding about constitutional structure:

The Framers, by the way, were apparently quite aware of the risk that bribes can undermine institutional decisionmaking, and saw the need to craft institutions in part to minimize the risk of such bribery. See, e.g., Federalist Nos. 22, 43, 57, 62, 66, 68, and 83. The analysis is instructive, I think, in deciding to what extent we should voluntarily submit our actions to the judgment of a Security Council where any other member can veto our actions. [...]

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“Political speech”:

My quote earlier today of Irving Kristol’s argument that advocacy of homosexuality should be constitutionally unprotected led me to look up again his entire comment. Here is the material most relevant to the free speech question (again from Sex and God in American Politics; What Conservatives Really Think, Policy Review (Heritage), Summer 1984):

[T]hose local communities that want to restrict public homosexuality or the advocacy of homosexuality should in my opinion be free to do so. I don’t think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does. The First Amendment was intended to apply to political speech, not to all forms of “expression,” as some people now seem to think.

     This, I think, is an excellent example of the weakness with some (though not all) of the “First Amendment only protects political speech, so it doesn’t protect X” arguments. I agree that the First Amendment wasn’t intended to apply to all forms of expression. (Libel, for instance, was pretty broadly understood to be outside the scope of the freedom of speech, though it wasn’t clear how much power Congress, as opposed to other institutions, had to regulate it.) But even if the First Amendment is limited to protecting political speech, why doesn’t advocacy of homosexuality qualify?

     Clearly advocacy of government action regarding homosexuality — decriminalize it, ban sexual orientation discrimination, and the like — is political speech. But how can people sensibly debate such government action without also figuring out whether homosexuality is good, moral, healthy, satisfying for its practitioners, and so on? And to figure that out, we naturally need to hear arguments that advocate homosexuality, in the sense of saying that it’s a proper, beneficial, satisfying, moral lifestyle, as well as arguments that oppose homosexuality, [...]

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My Vote?

Roger Simon urges bloggers to reveal who they will vote for in the upcoming election. I may vote for the Libertarian candidate, to protest the fact that government is growing out of control and neither party cares. I may vote for Bush, because despite his disastrous domestic policy, and a few questionable judicial nominations, I’d rather have him pick the next Supreme Court Justice than any Democrat currently running, and I think his actions in the War on Terror are generally solid. Or I may do what I usually do on Election Day, which is think about voting, then think about having to stand on line to vote, and think about how irritating it is that the [edit: as per overwhelming reader suggestion, “rationally ignorant individual who may be perfectly well-informed and competent in other areas of life”, but I originally has a less complimentary description] in line in front or in back of me who doesn’t even know who the Vice-President is [update: my colleague Ilya Somin has done some great work detailing voters’ incredible political ignorance] has a vote that counts exactly as much as my vote counts, (which, though it doesn’t actually make me feel any better, is effectively not at all), and just stay home.
UPDATE: Yes, I’m in a cranky libertarian mood this week, which sometimes happens during election years, when I am overexposed to the complete dreckiness of politics and politicians. How can anyone observe the venality, dishonesty, demogagoguery, on both sides … OK, I’ll try to behave. [...]

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Why is multilateral support important?

During the run-up to Gulf War II, many people argued that we shouldn’t go to war without multilateral support — support from a broad range of foreign countries, either directly or as translated into support from the Security Council.

     There are, I think, three possible reasons for this position. One is purely pragmatic: if we don’t have much foreign support, the theory goes, our task will be too hard, either because we won’t have material help, or because the lack of foreign support will undermine our credibility with the Iraqis or their neighbors. A second relates to legitimacy: certain kinds of actions, the theory goes, are only morally or legally legitimate if we have support from certain foreign bodies, or perhaps from a certain range of foreign countries. A third relates to foreign support being probative of the need for the war: if we don’t fully trust our government’s judgment, then we might consider other countries’ judgment as evidence of whether the war is practically and morally justified.

     Naturally, each of these possible reasons has its own supporting arguments and its own counterarguments, and the strength of each argument may vary from situation to situation. (Most obviously, the pragmatic argument turns on just how much we think we’ll need the foreign help.)

     I mention this because the recent revelations that some prominent foreign figures and organizations (most notably, in Russia and Indonesia, though apparently in some measure in France as well) were bribed by the Iraqis — if these revelations are accurate, of course — substantially undermine the forcefulness of second and the third reasons. If indeed foreign opposition, or a blocking vote in the Security Council, may often be influenced by bribes (as seems quite plausible, if the revelations are indeed accurate), then it becomes much less [...]

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Holocaust denial:

I think the strongest case against Mel Gibson (based on the evidence below) is (as David suggested) that Mel Gibson’s phrasing was ambiguous and that he knows better, having been exposed to actual Holocaust denial. Since this is still circumstantial evidence, though, I’m inclined to give him the benefit of the doubt so far. There’s nothing I strictly speaking disagree with in what he said, and to the extent he’s trying to place the Holocaust in the context of other large atrocities (including other victims of World War II and victims of Stalinist terror), I don’t mind, as I’m not into the moral uniqueness of the Holocaust. I was going to go into greater detail about this, but I think Clayton Cramer has already put it well in his last paragraph. [...]

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The latest anti-Semitic screed on the Palestinian Authority Web site:

Dejafoo has the details, and a pointer. “Whereas the murder of Christ by the leadership of Israel formed the basis around which the religion of Christianity would be formed, now the murder of the descendants of those leaders at the hands of those professing to be Christians has supplanted what was the religion which helped to create Western Civilization.” Lovely. See, we not only killed Jesus, but we’re also supplanting Christianity. And there’s more, much more. Brought to you courtesy of those peace-loving anti-racist people at the Palestinian Authority. [...]

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More attempts to suppress dissent in Europe:

One of Belgium’s leading civil rights groups has announced it intends to sue Belgian cardinal Gustaaf Joos for violating the country’s anti-discrimination laws.

Joos said in a recent magazine interview that he believed that 90-95 percent of gay people were “sexual perverts” and that the remainder needed help.

The Centre for Equal Opportunities and the Fight Against Racism (CEOFAR), which receives government funding, said that it had decided to sue the cardinal because it found his views “unacceptable”.

The organisation argued that in its opinion, such statements were illegal in Belgium, which has tough anti-discrimination laws. . . .

     I disagree with the cardinal’s views, and with the way he expresses those views. But what conduct is proper and what is improper, what is moral and what is immoral, are precisely the subjects that a free people should be freely debating.

     Not long ago, that homosexuality was a perversion was the orthodox view. Free speech changed that; the gay rights movement, like the racial and sexual equality movements, was a triumph of free speech and public persuasion. Now some people in that movement are trying to restrict others’ free speech, to lock in their gains and to silence dissenters from the new orthodoxy. Understandable, as a matter of human politics and psychology — but still improper.

     In 1984, Irving Kristol said, “I don’t think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does.” (Quoted in Sex and God in American Politics; What Conservatives Really Think, Pol’y Rev., Summer 1984, at 12, 24.) That was wrong then (and I hope he no longer believes it). Its flip side is wrong now.

     (Thanks to Clayton Cramer for the pointer.) [...]

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Illegal to let your pets suffer mild discomfort:

Washington state law criminally punishes people who “knowingly, recklessly, or with criminal negligence” “[f]ail[] to provide [an animal in their care] with necessary food, water, shelter, rest, sanitation, ventilation, space, or medical attention and the animal suffers unnecessary or unjustifiable physical pain as a result of the failure.” Hey, I have two dogs; I certainly oppose letting them suffer “unnecessary or unjustifiable physical pain.” However, it turns out that Washington residents can be criminally prosecuted not just for letting pets suffer obvious serious pain but even for — as a Washington Court of Appeals explicitly held — allowing them to suffer even “mild discomfort.” State v. Zawistowski, 2004 WL 57281 (Wash. App. Jan. 13).

     So if you delay a visit to the vet to the point that the animal suffers even mild discomfort, or if you pen up your pets longer than strictly necessary and justifiable, to the point that they suffer mild discomfort, or if you put them on a diet that causes mild discomfort, and that a jury finds to be unnecessary or unjustifiable (and the jury concludes that you were criminally negligent in thinking that it was necessary or justifiable), you’re a criminal.

     Thanks to Robert Bidinotto for the initial pointer, though of course I personally checked the Washington case involved. [...]

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