Saturday, March 13, 2004

 
[Eugene Volokh, 3/13/2004 05:26:20 PM]
More on the University of Southern Mississippi controversy: Ralph Luker is on top of the story. I can't tell for sure who's right and who's wrong here, since the university is apparently restricted by confidentiality policies from telling its side of the story. But from all I've heard, my tentative sense of the matter is that the faculty members whom USM is trying to fire are in the right, and the University's actions are a grave breach of academic freedom.

 
[David Bernstein, 3/13/2004 07:33:07 AM]
Another example of Jewish Sovereignty: I previously listed four examples of Jewish sovereignty between the failure of the Bar-Kochba rebellion in 135 and the founding of the modern state of Israel. Here's a fifth, courtesy of reader D. Siegel: 5th and 6th century Himayar (Yemen).

Friday, March 12, 2004

 
[Eugene Volokh, 3/12/2004 08:10:51 PM]
Don't laugh at slippery slope fears: A story from Australia:

Swords will be outlawed from July under new laws to curb the growing use of the weapons in street brawls.

Police Minister Andre Haermeyer said the ban would help police overcome a culture of young people arming themselves with swords. "For most people running around the street carrying swords there is absolutely no reason for them to be carrying those weapons," he said yesterday.

From July, anyone found possessing or selling a sword without a permit will face up to six months' jail and fines of up to $12,000.

Existing sword owners must surrender their weapons to police, sell them to a licensed dealer or apply to the Chief Commissioner for specific approval.

Collectors and people with legitimate cultural, religious or military reasons to own swords will be exempted from the ban, but must store them under lock and key and have a burglar alarm.

The sword ban follows a string of recent attacks and a regulatory impact statement undertaken by the State Government last year.

Last week, a 13-year-old boy was arrested and charged after allegedly charging police with a sword near Castlemaine, in central Victoria.

A 21-year-old man had his hand severed by a samurai sword in a confrontation between 40 men in the Fitzroy Gardens a fortnight ago -- the second brawl involving swords in 24 hours.

Huy Huynh, 19, was chased from the Salt nightclub and hacked to death nearby in July 2002 by a mob using samurai swords and machetes. . . .

The Government is also looking at bans on some other weapons, such as crossbows . . . .

I realize that some people might think this sort of restriction is just fine -- my point here is simply that restrictions often do lead to broader ones (for reasons I canvassed here). And when people object to even a seemingly assault weapons ban, their slippery slope concerns may be quite sensible.

 
[Randy Barnett, 3/12/2004 05:55:01 PM]
State v. Federal Parks: Just enjoyed a spectacular day driving from Mountain View to Monterey by way of the Big Basin Redwoods State Park. Being off-season and a weekday afternoon, the park was peaceful and largely deserted. Here I am standing in the redwood named the "Mother-of-the-Forest," which stands 329 feet tall..



Hiking in this park reminded me that some of the most enjoyable parks we visited on a cross-country family camping trip some years ago were state parks such as Valley of Fire State Park in Nevada, and Dead Horse Point State Park and Coral Pink San Dunes State Park, both in Utah. This made me speculate whether, given the criticisms of the management of parks by the National Park Service, we would have been better off if our park system had developed under state control. They seem more low key, but this may just be because these parks are less popular. I really do not know much about this, but today's visit made me wonder. And blogging about the great outdoors makes me feel like Glenn Reynolds.

 
[Eugene Volokh, 3/12/2004 05:22:56 PM]
Odd term: In Slate, Domestic Silence: The Supreme Court kills evidence-based prosecution." The story eventually explains what "evidence-based prosecution" means -- apparently "evidence" is being distinguished from live testimony of the complaining witness, even though live testimony most certainly is a sort of evidence. Still, it's an odd term, especially for a headline.

 
[Eugene Volokh, 3/12/2004 03:57:04 PM]
More on the Caesarean section case: Reader Fred Larsen writes:

Just thought that I would toss my two cents worth into the ring about the lady who is being charged for not submitting to a c/section to save the life of one of her twins. I am a board certified Ob/Gyn . . . (though now I only do infertility). I've delivered hundreds of babies. First a few thoughts:

1) I have been faced with this very situation. I had a lady who was at full term who was in labor. Her baby's heart tracing was concerning for fetal distress, with indications that the baby was not receiving enough oxygen. I told the patient that I was concerned about the tracing and that if it didn't improve, I would recommend a c-section. She told me that she would not consent to one, even if it meant watching her baby die on the monitors. I was taken aback, as you might imagine. Thankfully, the baby's tracing improved, but I was still facing the possibility of it occurring again. Well, I tell you. I wasn't going to go down alone on this one. I called the chief of Ob/Gyn and made him come put a note on the chart, I called the hospital lawyer and made them come in and put a note on the chart and I made the patient sign something saying that she understood...

On the one hand, I certainly couldn't force her to go through surgery as I would be open to charges of assault/battery, etc. On the other, I have a responsibility to both patients, the baby and the mother. It's an impossible situation to be in. You really can't win, as the physician facing this. Thankfully, this story ended well, but it might not have.

2) In reading accounts of this case, it seems that she went to at least 2 and possibly three hospitals, all of which recommended admission and delivery. I do understand that we are not perfect at being able to predict fetal / intrauterine distress, but if they're talking about slow heart rates, particularly prolonged ones, it's not subtle or rocket science.

3) The one problem I see with your hypothetical "people would hesitate to find a woman guilty of murder when she aborts a child at gestational age 9 months because carrying the child (or having a caesarean) would cause her to, say, be permanently paralyzed, or would involve even a 25% chance of her dying" is this. Regardless of route of delivery, at 9 months the baby has to be delivered. If an abortion were performed (KCl into the heart, followed by induction of delivery), the fact remains that the ramins of the baby would need to be delivered. This would involve induction of labor and vaginal delivery of a large (full term "fetus").

I cannot think of a single instance in which an abortion at 9 months would result in less risk to the mother than delivery of the child. I guess the only thing that I could even imagine would be one in which it was deemed that a c/section would be too risky and the labor is induced and during the labor process, fetal distress ensues and surgical intervention is not undertaken (allowing the baby to die). Otherwise, the hemodynamic changes that occur after c section or vaginal delivery with delivery of the placenta, all occur after the delivery of a dead baby too.

[Moreover,] it would be rare that someone would be unable to withstand a cesarean delivery yet able to undergo vaginal delivery. In the circumstances in which a c-section might result in death to the mother, it is a near certainty that a vaginal delivery would also result in significant risk of death as well. Granted, risks of death are higher with c section, blood loss is generally higher and so forth, but with modern obstetrical anesthesia, intensive care capabilities and high quality obstetrical care (particularly doing a c section as a scheduled procedure, not at the end of a long and failed labor), the magnitude of the difference in risks would be small.

Naturally, this does not remotely resolve the legal issues that my original post alluded to; but I thought it might provide a helpful perspective.

 
[Eugene Volokh, 3/12/2004 03:49:04 PM]
More T-shirt fun: Reader Pritesh Patel points to this AP story:

"International Terrorist" were the words framing President Bush's picture on a black T-shirt that the Dearborn High School junior [Bretton Barber] wore to class on Feb. 17.

School officials told him to take it off, turn it inside out or go home. He went home. The next day he returned, with a different shirt.

School officials said they were worried about inflaming passions at the school, where a majority of students are Arab-American. . . .

Bretton said he wanted to express his anti-war position by wearing the shirt, which he ordered on the Internet.

"Bush has already killed over 1,000 people in Afghanistan ? that's terrorism in itself," he told The Detroit News for a story today.

He said he wore the shirt for a presentation he made that morning in English class. The assignment was a "compare and contrast" essay, and he chose to compare Bush with Saddam Hussein.

Dearborn Public Schools spokesman Dave Mustonen said students have the right to freedom of expression, but educators are sensitive to tensions caused by the conflict with Iraq.

"It was felt that emotions are running very high," said Mustonen. "The shirt posed a potential disruption to the learning environment at the school. Our No. 1 obligation is to make sure we have a safe learning environment for all of the students." . . .

Imad Hamad of the American-Arab Anti-Discrimination Committee said officials took the right approach. Hamad said he hoped they would take it one step further and use the experience to educate students on how to exercise freedoms in positive ways.

"I see no winner here," Hamad said. "The school did the right thing to diffuse any potential conflict among the student population. I assume they would do the same thing if another message was displayed that was offensive to a different culture." . . .

     As I mentioned in my pro-life T-shirt post below, student speech like this can generally be restricted only if (1) there's serious reason to think that it's likely to cause material disruption, or (2) it's vulgar or profane, and offensive because of that and not because of its political message. (It could also be restricted if it's otherwise unprotected, for instance because it's a knowing lie, a death threat, or the like, but that surely doesn't apply here; though lots of people think the viewpoint the shirt expresses is wrong, it's clearly a statement of opinion, not of fact.) The T-shirt here might be seen by some as rude, but the rudeness flows precisely from its political content, so item 2 doesn't apply, either.

     The question is whether the school really has some good reason to think that this would cause material disruption. I'm pretty hesitant, absent more evidence, to think that it would. The fact that most of the students are Arab-Americans doesn't seem to me to be particularly relevant here. If the school can show that similar T-shirts had started fights, there or in neighboring schools, or that there were incidents that seemed about to blossom into fights, it might have a good case. But I don't see how this is inherently likely to be any more disruptive than the anti-Vietnam-War black armbands that the Court held to be protected in Tinker v. Des Moines Independent School District (1969), the leading case in this field.

 
[Eugene Volokh, 3/12/2004 03:04:32 PM]
Forcing religious opinions: I got a bunch of messages responding to my "forcing religious opinions" post; I'm too swamped now to respond in detail, but let me just mention a general point to my libertarian correspondents -- I can certainly see why people would object to others forcing wrong opinions on us through the legal system. I object to it myself.

     But the proper objection is that the laws being advocated are wrong on the merits. It's right to force on others our opinions that rape, child molestation, murder, and slavery is bad -- where "force their opinions" means, as it often does in public debate, "enact coercive laws" based on those opinions -- because these are correct opinions, and the laws that embody them, and try to force others to comply, are good laws. (We can debate about why they're good laws, but we support them because we think they're good). That many people supported abolition of slavery on religious grounds, thus forcing their opinions that slavery is wrong on others, doesn't make this support wrong.

     Conversely, it's wrong for people to force on others their opinions that everyone should hand over all their property to the poor, or that everyone should destroy their guns, because these are morally unsound opinions, and the laws that try to force others to comply with them are bad laws. It doesn't matter if the supporters of the laws are religious pacifists or antipropertarians, secular pacifists or antipropertarians, Marxists, or whoever else.

     Law is a means of forcing people to comply with certain views. If we have law, we'll have that coercion. It's quite proper to insist that laws only coerce people to do (or not do) things that it is right to coerce people to do (or not do) -- for instance, as I mentioned, it's right to coerce people not to kill, rape, steal, and so on. But I see no reason to fault people based not on what laws they want to implement, but based on whether their grounds for supporting such laws are religious opinions or secular opinions.

 
[Eugene Volokh, 3/12/2004 02:24:24 PM]
Attempt to ban pro-life T-shirt in high school? CNSNews reports:

A Virginia high school says a student's pro-life T-shirt violates the school's ban on using profane or obscene language.

The shirt says, "Abortion is Homicide. You will not silence my message. You will not mock my God. You will stop killing my generation. Rock for Life."

An assistant vice principal at Denbigh High School in Newport News told the student to stop wearing the shirt . . . .

     It seems to me quite clear that wearing the pro-life T-shirt is constitutionally protected, just as the wearing of anti-war symbols during the Vietnam War was found to be protected in Tinker v. Des Moines Indep. School Dist. (1969), at least unless there's concrete evidence of some significant disruption (or likely disruption) that the T-shirt has caused. Under Bethel School Dist. No. 403 v. Fraser (1986), the school may also restrict profanity and vulgarity, when the restriction is "unrelated to any political viewpoint," but that pretty clear doesn't apply here. If the full facts are as the story describes (and of course often there are some items that don't come out at first in such stories), and if indeed there's no evidence of sufficient disruption, then this seems a pretty clear First Amendment violation.

     Thanks to reader Matthew Bower for the pointer.

 
[Eugene Volokh, 3/12/2004 08:50:05 AM]
Way cool military gadgets.

 
[Eugene Volokh, 3/12/2004 08:32:36 AM]
Say, wasn't avoiding that part of the point? Evangelical Outpost praises the indeed quite praiseworthy Catholic lawprof Mary Ann Glendon, who has been chosen to lead the Pontifical Academy of Social Sciences [memo to self: write witticism re: pontifical/pontificates/professors/etc. -- v. funny!] and writes:

This is one of those times that I wish we evangelicals had a Vatican of our own.

That whirring you hear is Martin Luther spinning in his grave . . . . (Thanks to Professor Bainbridge for the pointer.)

 
[Jacob Levy, 3/12/2004 08:28:37 AM]
An early happy bloggiversary: to Russell Arben Fox, who commemorates the day with this very funny post.

 
[Eugene Volokh, 3/12/2004 08:09:55 AM]
L.A. Times piece on opponents of gay marriage: It's here, and it actually strikes me as quite thoughtful and balanced (and not just because it quotes me, correctly identifying me as a supporter of gay marriage). I suppose its bottom line is relatively friendly to the anti-gay-marriage forces, but it provides good arguments from both sides, and in the right tone.

UPDATE: Corrected the link to the article; should work now.

 
[David Bernstein, 3/12/2004 07:12:35 AM]
Wooster College Update: The Cleveland Jewish News reports on how its story about an anti-Semitic speech by Samir Makhlouf at Wooster College, sponsored by Presbyterian Peacemakers, became national news thanks to the Internet. The role of the Volokh Conspiracy is noted (though the reporter never contacted me), but not noted is how many of our readers wrote to officials at the College, and later to the school newspaper when it defended Makhlouf, something I've been told by Woosterites. Thanks! (And note to the Jewish News: my last name is Bernstein, not Mason!)

 
[Eugene Volokh, 3/12/2004 07:06:52 AM]
Gas prices from 1950 to now: Gregg Easterbrook points to this table, and writes:

Last week the national average for regular unleaded was $1.71, while "the record," USA Today declared, was $1.74 in August 2003. But all that matters to consumers is inflation-adjusted cost, and in this real-dollar calculation, gasoline prices remain about where they have been for most of the postwar era. This chart shows that the actual U.S. record price for gasoline occurred in 1981, when regular unleaded cost $2.80 in today's money. (The chart is in 2002 dollars; add 2 percent for current dollars.) The current gas-price level that Spencer Abraham, Dan Rather, and others are hyping as close to "the record" is actually 39 percent lower than the true price peak.

Another comparison: The average price of gasoline during the 1950s was about $1.80 in today's money--meaning that during the period enshrined in our collective political nostalgia as Energy Heaven, gasoline cost slightly more in real dollars than the amount now being theatrically bemoaned as a "record" price. But wait; in the 1950s, per-capita real income was less than half what it is today. That means that for the typical American in the 1950s, gasoline cost twice as much, in terms of buying power, as today's gasoline. Adjusted for inflation and for buying power, the purported "record"-priced gasoline at your pumps now is substantially cheaper than the gasoline your parents bought. . . .

Thanks to Greg Skidmore at Per Curiam for the pointer.

 
[Tyler Cowen, 3/12/2004 06:21:56 AM]
Voluntary, consumer-driven outsourcing: If you call the lender E-Loan Inc., you can have your loan application processed by either U.S. or Indian workers. If you choose the U.S. workers, it takes about two days longer to hear a response. Roughly 86% of applicants opt for the Indians.

 
[Randy Barnett, 3/12/2004 12:15:55 AM]
Department of Unfounded Ethical Charges (and more on originalism): I did not even hear of this story about the Lincoln Bedroom until I read Mark Kleiman's blog, but I think Mark deserves praise for defending George Bush, a politician he loathes, against a charge of unethical conduct that Mark thinks is unfounded. Kudos to Mark for this classy post. He could have just remained silent.

In this spirit, I report that I was interviewed Thursday morning on KNX-AM radio in LA about Justice Ginsburg's alleged "Ties to Activist Group" reported in Thursday's LA Times (free registration required for link)--a story apparently first stimulated by the blog Patterico's Pontifications. In case you have not read it, here is the charge which was initially brought to my attention by KNX:

Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series cosponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the high court in support of women's rights that the justice embraces.

In January, Ginsburg gave opening remarks for the fourth installment in the Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Two weeks earlier, she had voted in a medical screening case and taken the side promoted by the legal defense fund in its friend-of-the-court brief.

The liberal Ginsburg's involvement with the legal activist group, and recent outside activities by a conservative colleague, Justice Antonin Scalia, have touched off a debate over what kinds of extrajudicial appearances and contacts are appropriate for Supreme Court justices.

My take on this seemed to take the anchor, Chris Stanley, by surprise: I said I thought the charge was preposterous.

Supreme Court justices are not going to change the way they rule because they accept an invitation to speak in front of a group, even an "activist" group with which they tend to agree (and even if the lecture series is named after them). Supreme Court justices are not like the Oracles in Minority Report who must be segregated from the population in general, or from people with opinions in particular, and guarded by eunuchs. They get invited to speak by groups for a variety of motives. Sometimes the groups want to hear from justices who they admire and with whom they agree. Other groups want to hear from a justice who challenges their views. Still others just want to hear a Supreme Court justice, though in my experience they tend to be rather boring. By the same token justices get invited to dinner parties. Justices play poker or golf with their friends. Justices go to the movies. They read the paper or magazines. Justice are people.

I think that the recent flaps over justices Ginsburg's and Scalia's outside contacts is also related to what Larry Solum has dubbed the "downward spiral" over judicial appointments. Where the Constitution is not viewed as having a meaning independent of the preferences of those doing the interpreting--a view that has been very popular among intellectuals for a very long time--we must insist that only judges with whom we agree get on the bench. And while on the bench their views can neither be corrupted nor reinforced by the opinions of outsiders, and we should strive to get those who somehow slipped through the confirmation process to recuse themselves from cases we care about. Of course, we really only care about all this when it concerns justices or judges with whom we disagree.

This view of judging is a self-fulfilling prophesy. Insisting that all constitutional interpretation is or must be based solely a matter of choice concerning "right results" is conducive to judges acting as if this is true, which then makes it true. But it need not be true. Or more accurately, though some judicial discretion in applying the meaning of the Constitution to particular cases is inevitable, it need not be true that this discretion cannot be cabined by an independent meaning of a written constitution. The only genuine solution to the downward spiral is to restore the original public meaning of the Constitution as a source of meaning that is independent of judicial (and legislative and presidential) preferences--even if this meaning does not dictate unique results in every case. In other words, the meaning of an enacted constitution must remain the same until it is properly changed.

To appreciate this, consider the following thought experiment. Imagine judicial nominee A who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning clearly makes the income tax constitutional. Even if you disagree strongly with this nominee about (2) but you also truly believe that she has the "judicial virtue"of faithfully putting the original meaning of the Constitution ahead of her view of justice, she can safely be confirmed notwithstanding her strongly-held opinion on the justice of the income tax. Now consider judicial nominee B who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning can be ignored or explained away (like the right to keep and bear arms has been) and the income tax can, in the interests of justice, be held to be an unconstitutional "taking." All who oppose this result for whatever reason must now vehemently oppose this nominee.

I do not claim that this example is realistic. I posit it to starkly illustrate the connection between our theories of constitutional interpretation and the downward spiral affecting judicial nominations (as well as the newfound fetish that justices not associate with highly opinionated "activist" groups). What distinguishes between nominees A and B is not their policy preferences but the method of constitutional interpretation to which they are sincerely committed.

Let me offer this maxim: Any method of constitutional interpretation that is malleable enough to lead to ALL the important results you care about--what Sandy Levinson calls "happy endings"--can be used by your political opponents to reach all the important results that THEY care about. Which then reduces all of constitutional law to who get elevated to the bench. This the situation in which we now find ourselves. The only way out of this morass is to reestablish methods of interpreting the Constitution that acknowledge that the text had a public meaning when it was adopted that may not be changed by the very government officials it was supposed to subject to its higher law.

Note bene: I know the subject of constitutional interpretation in general--and originalism in particular--is very complicated. I wrote Restoring the Lost Constitution to address these complex issues at greater length than they can be analyzed in a blog post. Any reader who is genuinesly concerned about the nuances should check out the longer analysis of originalist interpretation and its limits to be found there.

UPDATE: Patterico, who broke the Ginsburg story, blogged to express general agreement with my reaction and adds a thought with which I agree:

Although I wouldn't use the word "preposterous," I tend to agree with Barnett. Justices shouldn't have to lead cloistered lives, as I have stated in virtually every post I have written on the issue. I have seen Justice Scalia (and other judges) speak, and have benefitted from the experience. My point has been simply that a newspaper shouldn't pick on only the most conservative Justice, while giving a pass to the liberal ones.

UPDATE II: Some agreement with the above maxim on the American Constitution Society blog.

Thursday, March 11, 2004

 
[Eugene Volokh, 3/11/2004 08:03:12 PM]
Espionage? The MSNBC headline in the story is "Ex-Senate aide charged with giving Iraq secrets." But the body of the story says that

[Susan Lindauer] was charged with being a paid Iraqi intelligence agent and trying to contact her distant cousin -- the White House chief of staff -- to alter U.S. policy. . . .

She was charged with conspiring to act as an unregistered agent of the Iraqi Intelligence Service and with engaging in prohibited financial transactions with the Iraqi government. The indictment makes no mention of her congressional staff work. She was not directly charged with espionage. . . .

The indictment said she accepted $10,000 for working for the intelligence service from 1999 to 2002, including payments for lodging at the Al-Rashid Hotel in Baghdad and expenses during meetings in New York City with Iraqi agents. According to the indictment, Lindauer delivered a letter "to the home of a United States government official" on Jan. 8, 2003, in which she described her access to members of dictator Saddam Hussein's regime "in an unsuccessful attempt to influence United States policy." . . .

According to an indictment filed in U.S. District Court in Manhattan, Lindauer made multiple visits from October 1999 through March 2002 to Iraq's U.N. mission in Manhattan. The government said she accepted payments from the Iraqis for her services and expenses. . . .

     She may well have committed various crimes, and being a covert agent of the Iraqi government is hardly good behavior in my book. But is there really any charge that she gave the Iraqis secrets, or even that she had any secrets to give them?

     The Seattle Post-Intelligencer headline likewise calls her an "[a]ccused spy," but likewise lacks any mention of any charges of actual spying. Am I missing some important details here?

 
[Eugene Volokh, 3/11/2004 05:57:29 PM]
Forcing their religious opinions on us: I must have blogged about this a while ago, but this trope keeps bugging me. "Those fundamentalist Christians are trying to force their religious opinions on us," the argument goes. But that's what most lawmaking is -- trying to turn one's opinions on moral or pragmatic subjects into law.

     Gay rights activists are trying to force their opinions on us by making employers not discriminate based on sexual orientation, or by making taxpayers pay for various marriage-related benefits for same-sex couples as well as heterosexual couples. Civil rights activists forced their opinions about race and sex discrimination on private employers, landlords, and business owners.

     Nor are libertarians immune, unless they're anarchists (though even the anarchists are willing to force their opinions through the use of deadly force, even if not through legislation). After all, laws against breach of contract, theft, rape, murder, and the like also involve the defenders of those laws forcing their opinions on the rest of us.

     Ah, the argument goes, but those laws are backed by secular arguments, not religious ones. Well, as it happens, many laws -- civil rights laws, for instance -- were motivated by religious opinions (it's the Reverend Martin Luther King, Jr., you might recall). But more importantly, all of our opinions are ultimately based on unproven and unprovable moral premises. For some of us, the moral premises are secular; for others, they're religious; I don't see why the former are somehow more acceptable than the latter. And the slogan "separation of church and state" hardly resolves anything here: Churches may have no legal role in our government, but religious believers are just as entitled to vote their views into law as are atheists or agnostics.

     Of course, it's perfectly sound to disagree with people's views on the merits: If I don't agree with the substance of someone's proposal, whether it's religious or secular, I'll certainly criticize the substance. And naturally people will often find others' religious arguments unpersuasive -- "ban this because God said so" isn't going to persuade someone who doesn't believe in God, or who has a different view of God's will. (Likewise, many devout Christians may find unpersuasive arguments that completely fail to engage devout Christians' religious beliefs.) But there's nothing at all illegitimate about people making up their own minds about which laws to enact based on their own unprovable religious moral beliefs, or on their own unprovable secular moral beliefs.

 
[Sasha Volokh, 3/11/2004 03:42:02 PM]
Good progress on my workers' comp research! Thanks to reader Robin Parry, formerly of Scales of Justice, I got a few years' information from the Department of Labor library. Now all I need is 1963, 1965, and 1967. I'll repeat my post from below, mutanda mutans:

I need some numbers on workers' compensation in different states. Most of my numbers come from a publication called Analysis of Workers' Compensation Laws put out annually since 1976 by the U.S. Chamber of Commerce. Its predecessor publication, Analysis of Workmen's Compensation Laws, was put out annually from the 1950s to 1975.

My period of interest is 1962 onwards, but Harvard is missing most issues from the 1960s and 1970s, and supplementing with MIT's, UCLA's, and the Department of Labor's collections, I'm still missing the following years: 1963, 1965, 1967.

If any of you feel like checking (soon, like, within a few days?) whether your local (or university) library has this publication for these years -- and, better, if you also feel like faxing me a copy of a table I'm looking for ("Income Benefits for Total Disabilities"), which should be about three pages long in each volume -- I will be eternally grateful to you. (I think the Library of Congress has a complete set, but that would be going way beyond the call of duty, unless you go there all the time.)

Please write me an e-mail, volokh at fas.harvard.edu, if you can do this.

(Alternatively, you could just mail me the tables slowly, but quickly e-mail me the "maximum weekly payment" amount for the states I need, which are CA, CT, DC, FL, IL, IN, NJ, NY, OH, PA, and TX.)

UPDATE: Various readers have written in to tell me that the set of studies was biyearly until 1968, so the 1963, 1965, and 1967 issues (as well as odd-year issues from before 1963) don't exist. This would explain a lot, though the Harvard library catalog doesn't seem to know it. If this is the case, that means there's nothing left for my blog-reading friends to find. Thanks!

 
[Eugene Volokh, 3/11/2004 03:25:18 PM]
California Supreme Court orders S.F. mayor not to conduct same-sex marriages: Here's the order (thanks to How Appealing for the pointer):

Respondent is ordered to show cause before this court, when the matter is called at the late May 2004 or June 2004 calendar, why a writ of mandate should not issue, directing respondent to apply and abide by the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that these statutory provisions are unconstitutional. Pending this court's determination of this matter or further order of this court, respondent is directed to enforce and apply the provisions of Family Code sections 300, 301, 308.5, and 355 without regard to respondent's personal view of the constitutionality of such provisions, and to refrain from issuing marriage licenses or certificates not authorized by such provisions. In addition, pending this court's determination of this matter or further order of this court, all proceedings in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco et al. (San Francisco Super. Ct. No. CPF-04-503943) and Thomasson et al. v. Newsom et al., (San Francisco Super. Ct. No. CGC-04-428794) are stayed. This stay does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.

The return in this matter, limited to the legal question whether respondent is exceeding or acting outside the scope of her authority in refusing to enforce the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that such provisions are unconstitutional, is to be filed by respondent in the San Francisco Office of the Supreme Court on or before Thursday, March 18, 2004. In addressing the foregoing issue, the return should discuss not only the applicability and effect of article III, section 3.5 of the California Constitution, but any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue.

A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Monday, March 29, 2004.

Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.

Looks like they are indeed interested in the question whether San Francisco government officials are an "administrative agency," covered by article 3, section 3.5 of the California Constitution:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

I tend to think that they aren't an administrative agency, but we'll see what the Justices have to say.

     I also assume that when the California Supreme Court says that the documents should discuss "any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue," this means that the Justices are prepared to hear the Mayor's substantive constitutional argument about why the California Constitution mandates allowing same-sex marriages, since a resolution of this argument would probably make moot the article III, section 3.5 objection. This doesn't mean that the court will necessarily resolve the substantive issue, but as I read the order, it doesn't preclude such a resolution, either. (I assume that if the California Supreme Court concludes that the mayor was substantively right but procedurally wrong, it wouldn't retroactively invalidate the marriages.)

 
[Eugene Volokh, 3/11/2004 02:13:11 PM]
"If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another" in "reducing death and injury." Who said that? Tom Diaz, of the pro-gun-control Violence Policy Center.

 
[Eugene Volokh, 3/11/2004 02:00:49 PM]
Murder? An AP story reports:

A pregnant woman who allegedly ignored medical warnings to have a Caesarean section to save her twins was charged Thursday with murder after one of the babies was stillborn.

Prosecutors said Melissa Ann Rowland, 28, didn't want the scars that accompany the surgery.

An autopsy found that the baby died two days before its Jan. 13 delivery and that it would have survived if Rowland had had a C-section when her doctors urged her to, between Christmas and Jan. 9. The other baby is alive, but authorities had no further information.

The doctors had warned that without a C-section, the twins would probably die, authorities said. A nurse told police that Rowland said [the doctor wanted to cut her "from breast bone to pubic bone," a procedure that would "ruin her life,"] and she would rather "lose one of the babies than be cut like that."

"We are unable to find any reason other than the cosmetic motivations by the mother" for her decision, said Kent Morgan, spokesman for the district attorney. . . .

The charges carry five years to life in prison. She was jailed on $250,000 bail. . . .

     A really tough issue: On the one hand, I'm skittish about any legal requirement that someone get surgery, even to save her child's life. On the other hand, parents do rightly have a legal obligation to take care of their children, and it may well be that this obligation does extend even to going under the knife. Thought experiment: Should the law be able to force a parent -- on pain of a murder conviction -- to donate bone marrow to save a child's life? Should it be able to do so, but only on pain of conviction of a lesser offense, such as involuntary manslaughter or child neglect?

     Incidentally, while this naturally brings up an analogy to the constitutional right to an abortion, the analogy is complex. U.S. constitutional law actually recognizes two different rights to an abortion: A categorical right pre-viability, and a right post-viability when the abortion is needed to preserve the mother's life or health. The first right is surely not implicated here; the baby (and I feel quite comfortable calling it a baby) died at gestational age 9 months. The second right, though, is potentially implicated; the argument would be that it is potentially harmful to a woman's health to have a caesarean section.

     I suspect that most (though not all) people would hesitate to find a woman guilty of murder when she aborts a child at gestational age 9 months because carrying the child (or having a caesarean) would cause her to, say, be permanently paralyzed, or would involve even a 25% chance of her dying. The question is whether the same should apply when we're dealing with a caesarean, a serious surgical procedure and one that sometimes does lead to death and always leads to a nontrivial and somewhat painful recovery, but nonetheless one that in the overwhelming majority of all cases doesn't cause death or serious permanent injury.

     Finally, does it matter that medicine is an inexact science, and that a woman may well sincerely distrust her doctors' assurances that (1) a caesarean is needed to save the child's life, and (2) a caesarean would be safe for her? Is that another reason to leave the issue entirely up to the mother? Or would we say what the law often says as to parents' other duties: Even if you sincerely believe that your child will get better if you just pray over him, instead of taking him to surgery, you may still be held liable at least for involuntary manslaughter (negligent homicide) even if not murder (reckless, knowing, or intentional homicide)? (I vaguely recall that some jurisdictions may exempt from prosecution parents who take this view, but even if that's so, I think that that's the exception, not the rule.)

 
[Eugene Volokh, 3/11/2004 01:09:09 PM]
The Passion of the Christ: Reader Tom Hynes writes:

I turned to my wife in the middle of The Passion of the Christ today and said "That Roman is using stirrups!"

All Conspiracy readers know it was not introduced for centuries.

My wife still told me to shut up.

 
[Eugene Volokh, 3/11/2004 01:02:33 PM]
Washington Post site carries ad for term paper mill: John A. Kalb has the scoop. Not a huge scandal, of course; probably no-one authoritative at the Post ever even saw this. But I hope they notice now, and stop carrying such ads. (Yes, I know that the site's FAQ page says that "All papers provided by Example Essays.com are for research and reference purposes only." Forgive me if I doubt that this is the normal way people use the site.)

 
[Eugene Volokh, 3/11/2004 12:55:56 PM]
More on commemorative coins: A reader writes:

Though we would both agree that Chief Justice Marshall is "cool" in many regards, the truth behind commemorative coin programs is "way uncool."

I worked for the U.S. Mint for seven years before enrolling in Marshall-Wythe Law School (Wm & Mary) & have a good read on how these programs work. In a nutshell, a sponsoring organization lobbies the congressional banking committees (to whose music the U.S. Mint dances) to pass commemorative coin legislation, usually for one-ounce silver dollars.

Once legislation is passed, the Mint designs and stamps the coins.

(Getting from design to stamped coin is a long and expensive process...many hands in the design process, many engraving steps, test dies, test runs, final design, etc.). The Mint and sponsoring organization then market the coins to coin collectors or others who might be interested in a particular coin. The purchase price of about $33 per coin breaks down as follows: $10 to the sponsoring organization, $7 for the silver, $16 to the U.S. Mint to recoup costs.

In the 1990s, the Mint would get a few commemorative silver dollar programs thrust upon it each year. Because the sales usually were not strong enough to recoup the agency's fixed costs, the vast majority of these programs were money losers for the Mint (i.e., taxpayers). The Law Enforcement Memorial program is instructive. About 140,000 coins were sold, grossing the Memorial's fund $1.4m. The Mint/taxpayers lost at least $500,000 (but probably closer to $1m) on the program. See here for the general stats[.]

No one can say how well the John Marshall coin will sell, but it is very likely to be a money loser for the government, and thus a cloaked federal subsidy for the Supreme Court Historical Society. See [here.]

I realize that this is small potatoes in the grand scheme of government encroachments into private enterprise, but it is a no-brainer for someone who even leans libertarian. That is, if there were a true demand for a John Marshall coin, the SCHS could contract a program with the Franklin Mint, Liberty Mint, or another small private mint. This is, in fact, the situation that obtained before the U.S. Mint got back into the commemorative coin business in 1982. It is because the Franklin Mint and others could not compete with the U.S. Mint in for the wallets of coin collectors, the Franklin Mint et al. had to switch to making Civil War Chess Sets and the like.

In short, the government should mint coinage for circulation only (and perhaps proof and uncirculated sets for collectors), and leave commemorative minting to private enterprise.

I have no personal knowledge on the subject, but it seemed worth passing along.

 
[Eugene Volokh, 3/11/2004 12:54:26 PM]
Recess appointments: I have no informed opinion on the subject, but I think people who are interested in it might be interested in this excerpt from a brief filed by the Justice Department in 1993.

UPDATE: For a contrary view, from a 1921 Attorney General opinion, see here.

 
[David Bernstein, 3/11/2004 10:41:27 AM]
Being Your Own Real Estate Agent: A law professor I know told me that before he bought his house, he took the Georgia Real Estate licensing exam, passed it, and collected the 3% buyer's broker's commission when he bought the house. I'm thinking about buying a house, and was wondering whether I can do the same thing in Virginia. It seems relatively easy to pass the licensing exam, but it's unclear to me whether simply being a licensed real estate seller, as opposed to being an eligible broker, or employee of a broker, would make me eligible for the commission. Anyone know the answer?

And before I get outraged emails from real estate agents arguing that I can't do without their essential services, I have narrowed the area in which I would like to buy a house down to a very small area near George Mason Law School, so I would not need any help picking a neighborhood. Given that houses in this vicinity sell from $400k, I would need a lot of convincing that an agent's services were worth upwards of $12K.

UPDATE: Reader Joel Buckingham notes that in some states, such as California, attorneys who pass the real estate sales exam are automatically eligible to become licensed brokers. In Virginia, however, there appears to be no such allowance for attorneys, who need, like other potental brokers, to prove they have several years of sales experience before they can become brokers. Of course, we all know that licensing laws are meant for consumer protection.

 
[Eugene Volokh, 3/11/2004 10:10:52 AM]
Russia: I haven't followed Russian life much, since the revolution. Still, some things I've been hearing recently reminded me of this poem by my favorite Russian singer-songwriter, the late Bulat Okudzhava, written in 1989 -- much has surely changed, and for the better, since then, but from what I've heard much hasn't. I give a quick and dirty translation below, which unfortunately doesn't preserve the rhyme, the meter, or much of the sensibility, but what can I do? (Note also that the translation borrows in one place from the version of the song that I heard, which differs in some respects from the written version.)

     A bit of background that would be obvious to Russian listeners: Since Leo is an emigre returning from Australia, he's certainly Jewish (only Jews and a few other ethnic groups were allowed to leave during the Soviet era, and the emigres of Okudzhava's circle were overwhelmingly Jews). Okudzhava himself was a Georgian by ethnicity, but many of his close friends were Jews; judging by the dedication in the print version, the song was written with one particular friend in mind, though most of Okudzhava's listeners wouldn't know that.

From Australia Leo to Moscow returned
At his sister's finally arrived
From the taxi's window at Moscow he stared
Felt a chill running down his spine

These days, Moscow doesn't quite look cruel ?
Doesn't shoot, doesn't tie you in knots.
But suddenly asks ?Are you scared, little kike??
And gives you a friendly wink.

In Australia, likely, the weather is hot,
Easy life that the pen can't describe;
But in Moscow it's worse than it was yesterday
Though better than in '37.

Down the boulevard, Leo, unhurriedly stroll
Look closely at the familiar faces
Maybe Moscow doesn't have a vicious soul
But no-one's born fortunate here.

 
[David Bernstein, 3/11/2004 09:50:08 AM]
Another "Early" Defense of Lochner: Philosopher Eric Mack defended Coppage v. Kansas, one of the leading Lochnerian Supreme Court decisions in "In Defense of 'Unbridled' Freedom of Contract" The American Journal of Economics and Sociology (January l980), pp. l-l5. It's interesting that there were virtually no defenses of Lochner for over forty years, but that right around 1980 the case began to win sympathetic attention.

 
[Eugene Volokh, 3/11/2004 09:32:40 AM]
Supreme Court Justice on commemorative coin: Aaron Kendal points out that "In a nice confluence of legal and numismatic news, next year, a silver dollar honoring the 250th anniversary of the birth of Chief Justice John Marshall will be struck by the US Mint." Cool.

 
[Eugene Volokh, 3/11/2004 08:42:10 AM]
Is saving soldiers' lives and limbs not medical science? The AP reports:

Seven cadavers donated to Tulane University's medical school were sold to the Army and blown up in land mine experiments, officials said Wednesday. . . .

Tulane receives up to 150 cadavers a year from donors but needs only between 40 and 45 for classes, said Mary Bitner Anderson, co-director of the Tulane School of Medicine's Willed Body Program.

The university paid National Anatomical Service, a New York-based company that distributes bodies nationwide, less than $1,000 a body to deliver surplus cadavers, thinking they were going to medical schools in need of corpses.

The anatomical services company sold seven cadavers to the Army for between $25,000 and $30,000, said Chuck Dasey, a spokesman for the Army's Medical Research and Materiel Command in Fort Detrick, Maryland. The bodies were blown up in tests on protective footwear against land mines at Fort Sam Houston in San Antonio. . . .

"There is a legitimate need for medical research and cadavers are one of the models that help medical researchers find out valuable information," Dasey said. "Our position is that it is a regulated process. Obviously it makes some people uncomfortable." . . .

Michael Meyer, a philosophy professor at Santa Clara University in California who has written about the ethics of donated bodies, said the military's use is questionable because it knows donors did not expect to end up in land mine tests.

"Imagine if your mother had said all her life that she wanted her body to be used for science, and then her body was used to test land mines. I think that is disturbing, and I think there are some moral problems with deception here," Meyer[] said. . . .

The cadaver market sure seems funky, and it may well be that people are lying to the universities. I also understand Prof. Meyer's point about the need to be honest with the donors.

     But this just doesn't seem like much of an ethical issue to me. I take it that the donors are never told the details of what the bodies will be used for; among other things, the ultimate use may not be foreseeable at the time of the donation. They are told generally that they'll be used for scientific or medical purposes. Figuring out how to save soldiers' lives and limbs is a medical purpose -- this isn't testing land mines as such, it's testing protective devices against land mines.

     I realize that some potential donors might view this use either as (1) unworthy on moral grounds (not necessarily immoral, but not something they'd want to participate in -- not a view that I'd take, but I suppose one that some people might take), or (2) unusually and unexpectedly grisly. But donors could say that about virtually any use, except perhaps the most obvious and well-known one (dissection in medical schools).

     It seems to me that when one donates a body for unspecified medical and scientific purposes -- just as when one gives money to the university for unspecified educational purposes -- one can't expect anything other than that the body will indeed be used to somehow help medical education, medical knowledge, or medical practice. Whether it ends up being used for stem-cell research, HIV research, or military trauma prevention research, no-one has been wronged. And if you really want to make sure that your body is used for some specific purpose, make sure that your gift makes this explicit (something I suspect very few gifts do), rather than expecting people to distinguish "disturbing" medical uses from nondisturbing ones.

     Thanks to reader Chris B for the pointer.

UPDATE: A reader writes (emphasis mine):

Military medicine involves some experiments that are just, well, icky. And journalists love to shock the public by writing about it. Some years ago they had a delightful time outing some training exercises for medical students at the Uniformed Services University of the Health Sciences, which trains serving military officers in medicine. Various animals such as dogs, pigs and sheep were anaesthetized and wounded with military weapons like rifles and machine guns. Icky! People were shocked. Exactly how military doctors are to learn how to treat the trauma inflicted by military weapons if they don't do icky things like this is unclear to me. In addition, as my wife (a former anatomy teacher at two medical schools) pointed out when we heard the story this morning: exactly how is it worse to have your cadaver blown up by a mine than slowly sliced to bits over a semester by medical students?

 
[David Bernstein, 3/11/2004 08:08:43 AM]
Worst Use of an Osama Analogy: Seen on an academic discussion list: One professor notes uncertainty over precisely what is or is not permissible regarding affirmative action after the Michigan cases, and suggests that such uncertainty is unhealthy for a legal system, and provides support for Justice Scalia's oft-quoted dictum [see correction below], "Liberty finds no refuge in the jurisprudence of doubt." Another professor responds, "Is not Scalia's famous 'jurisprudence of doubt' statement deeply at odds with Learned Hand's famous statement to the effect (I paraphrase) that 'the spirit of liberty is the spirit that is never too sure that it is right'? Do not fundamentalists like Osama suggest that we should endorse Hand's not Scalia's position?" So, stating that the law should be clear and certain=fanatical and murderous fundamentalism. No wonder the American legal system is as it is.

UPDATE: Something seemed a bit off about the Scalia quote attributed to Scalia by the two professors above, but I was too lazy to look it up. Sasha points out that the quote is actually from Kennedy's opinion in Casey, mocked by Scalia in Lawrence. The basic point, however, still stands: Scalia is known for favoring bright-line tests in the interests of certainty and coherence, a preference he recently reiterated in Crawford, and the professor in question suggested that such a preference is analogous to Osama-like fundamentalism.

 
[Sasha Volokh, 3/11/2004 07:58:35 AM]
Libertarian quiz: I like the libertarian quiz David linked below. It's much better than most general-purpose political quizzes, because it does a better job of expressing the questions in a form that libertarians would find valid (i.e., policy-oriented, not result-oriented), and better tracks actual divisions among libertarians. I'm also medium-core, with a score of 70. Hanah got 74. Perhaps I should be worried?

 
[Sasha Volokh, 3/11/2004 07:54:31 AM]
Can your library beat Harvard's? I need some numbers on workers' compensation in different states. Most of my numbers come from a publication called Analysis of Workers' Compensation Laws put out annually since 1976 by the U.S. Chamber of Commerce. Its predecessor publication, Analysis of Workmen's Compensation Laws, was put out annually from the 1950s to 1975.

My period of interest is 1962 onwards, but Harvard is missing most issues from the 1960s and 1970s, and supplementing with MIT's collection, I'm still missing the following years: 1963, 1965, 1967, 1968, 1970, 1973.

If any of you feel like checking (soon, like, within a few days?) whether your local (or university) library has this publication for these years -- and, better, if you also feel like faxing me a copy of a table I'm looking for ("Income Benefits for Total Disabilities"), which should be about three pages long in each volume -- I will be eternally grateful to you. (I think the Library of Congress has a complete set, but that would be going way beyond the call of duty, unless you go there all the time.)

Please write me an e-mail, volokh at fas.harvard.edu, if you can do this.

(Alternatively, you could just mail me the tables slowly, but quickly e-mail me the "maximum weekly payment" amount for the states I need, which are CA, CT, DC, FL, IL, IN, NJ, NY, OH, PA, and TX.)

 
[Eugene Volokh, 3/11/2004 07:43:25 AM]
Blogger gets results: Patterico writes:

On the one hand, I have to hand it to the Los Angeles Times. They have run a front-page story about Justice Ginsburg's speech to the NOW Legal Defense Fund.

On the other hand, why did I have to be the one to tell them about it? . . .

I suspect that Patterico's answer to that is that the Times is more interested in finding fault with Justice Scalia on very similar grounds -- they had run an article about that a few days before -- than in investigating whether Justice Ginsburg might have done the same. Maybe that's so; but a reader comment (apparently from a Pennsylvania legislator who is himself a blogger) makes another good point:

You had to tell them about because you knew more about the subject than they did, and you cared enough about it enough to want the public to know. . . .

I think that's quite right -- often a lot can be done just by alerting the media to facts that they're unaware of, whether you e-mail the newspaper's "Reader's Representative" (as Patterico did), or the reporter directly. And while any reader can do that, I think the rise of organized blogging helps that: Bloggers end up being more willing to devote more time to such matters (partly because they feel that even if their e-mail gets no reaction from the newspaper, they can at least alert others to the point, and can complain on-blog about how the newspaper isn't responding); and blogging helps them build on their own information base by using input from other bloggers and from readers.

 
[David Bernstein, 3/11/2004 07:00:47 AM]
The Slow Death of Israeli Kibbutzim: Israeli kibbutzim, once the pride and joy of socialists around the world, are dying a slow death, at least as far as socialism is concerned. As an economic experiment, kibbutzim were never very successful, relying for years on heavy subsidies from Labor-dominated Israeli governments to thrive. When Labor lost power in the late seventies, the majority of the subsidies went away, leading to bankruptcies, privatizations, and a general decline in kibbutz fortunes, exacerbated by an inability of the founders to pass on their socialistic fervor to the next generation.

I actually lived on a kibbutz, Revadim, for three weeks in 1985. The kibbutz, affiliated with the leftist Hashomer Hatzair, still had a children's house--children spent only two hours per day with their parents (itself a compromise on original socialist principle), spending the rest of their days and nights in communal living. I can't say that the principles or lifestyle were to my taste, but voluntary socialism can easily coexist with a libertarian society. So, shed a small tear for the decline of kibbutz socialism, another failed experiment in human coexistence.

 
[Tyler Cowen, 3/11/2004 06:25:53 AM]
A short introduction to economics blogging: Here is a short essay I wrote on economics blogging for The Freeman. It offers a general introduction to what blogging is all about. The print version (but not the on-line version) offers a box which surveys some of my favorite economics blogs, including Lynne Kiesling, Arnold Kling, and others, also see the blog roll at my own www.marginalrevolution.com.

 
[Tyler Cowen, 3/11/2004 05:21:00 AM]
Query about Iraq-Kuwait reparations: Is it possible for Kuwait to assign to a third party an award made to Kuwait by the United Nations Compensation Commission? I am talking about Iraqi reparations here. We know that Iraqi debtors are under pressure to forgive, how does this apply legally to those who hold reparations claims, namely Kuwait? As I understand international law (poorly, that is), an award made by a judicial tribunal may be assigned to another party or institution. I am interested in the general question of whether such awards can go to non-profit and development enterprises more generally, or whether they must remain in state hands, in this case the government of Kuwait. Wouldn't it be nice if the award could be put to valuable use? I wonder if in part the real question is whether UNCC could be considered a judicial tribunal, in which case assignment might be possible. Please write me if you know anything about this or have related leads.

Wednesday, March 10, 2004

 
[David Bernstein, 3/10/2004 08:54:24 PM]
Libertarian Purity Test: Just took Bryan Caplan's Libertarian Purity Test for the first time in a long time. I scored a 79, which makes me a medium-core libertarian. I seem to recall getting a significantly higher score many years ago, but my views have definitely mellowed over time. For other bloggers' results, click here. Some of the questions were a bit inexact for the yes/no format, so there is some margin of error involved.

 
[David Bernstein, 3/10/2004 07:56:04 PM]
The True AntiChrist: A disgusting smear job by Israeli leftist Yossi Sarid, who manages not simply to repeat the well-worn lie that all evangelical Christian supporters of Israel are motivated by implicitly anti-Jewish apocalyptic concerns, but also to virtually accuse any American Christian who goes to "The Passion" of being an anti-Semite. All, of course, in the name of the greater good of attacking the true AntiChrist, Ariel Sharon.

 
[Eugene Volokh, 3/10/2004 05:41:01 PM]
RSS: Thanks to Philippe Lourier of blogrunner, we now have an RSS feed again, here; and see also this page for more. Much appreciate the help!

 
[Eugene Volokh, 3/10/2004 05:17:05 PM]
For copyright buffs: No hint of litigation about this yet, but it makes for an interesting hypothetical question (assuming Slate didn't get a copyright clearance) -- check out this Slate "Juicy Bits: We read the book so you don't have to" column, and compare it to the situation in Harper & Row v. Nation Enterprises (1985). Not an identical case, of course; for instance, the excerpts here are from a published book, rather than a yet-to-be-published book. Still, it seems like an interesting fair use issue.

 
[David Bernstein, 3/10/2004 05:11:14 PM]
More on Blatantly Illegal Minority Preferences: A reader writes:

I am writing to offer some thoughts in response to your post that you find it remarkable that the academic elite would nonchalantly advertise an illegal program.

I would actually find it remarkable if they didn't. For example, here in Georgia we have a state law that provides for an extra income tax deduction of 10% of any amounts paid to minority subcontractors. The law seems clearly illegal and unconstitutional, but it is widely known (it's described on our tax return forms) and remains unchallenged. When I attended law school at the University of Florida, the law school proudly advertised the state-funded Virgil Hawkins Minority Fellowship program, which was available solely to African American law students. In fact, I was told by people I trust and who were in a position to know that the fellowship was provided to all African American law students as a matter of course, and had the effect of providing a free legal education to all such students; I suspect the program is still in place. And in here in Atlanta, the city and Fulton County are frequently being sued over their blatantly illegal set-aside programs. To date the city and county have lost every suit (I think it's 12 or 13 in a row). The city and county file every appeal possible, and, when defeat is certain, they simply tweak the program, rename it and reinstitute it. The revamped program seldom differs much from the version that was struck down.

The behavior described in each of these examples, and in the example cited in your post, makes perfect sense. In each case the administrators promoting the program in question believe that they are taking a principled stand on behalf of a worthy cause, and that the laws proscribing their conduct are unjust. And, equally important, there is simply no downside to taking such a stand. If the arrangements are challenged, the administrators will spend vast sums of other people's money defending the programs. When the programs are ultimately held to be illegal, there will be no personal liability or loss of employment for the persons responsible -- I am sure the Gratz administrators have not suffered professionally. Rather, they will in all likelihood be lionized by their peers, and portrayed sympathetically in the press.

I suspect no court will ever meaningfully sanction this conduct, and so I fully expect it to continue.

What I've found is that those who administer and/or support such programs will go to extraordinary lengths to argue that programs that are clearly illegal are in fact legal. In particular, even though the USSC has never held that redressing general societal discrimination or increasing minority representation in a particular field are adequate constitutional justifications for discriminatory state action, and has frequently held to the contrary, these justifications are still routinely trotted out to support the legality of racial preference programs. This is not the sort of battle, however, that the judicial branch is likely to win on its own. L'havdil [yiddish/hebrew for, drawing an important moral distinction while still using as an analogy--literally, to separate] virtually nothing happened with regard to school desgregation after Brown until Congress passed enabling legislation in the 1964 Civil Rights Act.

UPDATE: A reader, noting that Atlanta is a majority African American city, wonders whether the cases referred to above reflect a "principled stance" in favor of redressing past wrongs, or pure power politics in favor of the majority, noting other Atlanta examples.

Another reader points to a new USDA scholarship, that is available only to students attending colleges with a high percentage of students of Asian descent. This scholarship is clearly intended to benefit Asians, and the USDA has similar scholarships to benefit Hispanics, African Americans, and Latinos, though none are explicitly limited to members of those groups. These scholarships seems unconstitutional under current law to me. It would clearly be illegal to have a scholarship intended for students who attend institutions that are historically disproportionately white, and the Court has held that, in general, equal protection standards are the same for white and minorities. The exception, thus far, is for diversity programs in education, where universities have a countervailing First Amendment academic freedom interest in creating diversity for educational purposes. The USDA programs do not fit this mold.

Another reader notes that the federal government has lots of fellowships available only to members of racial minority groups, so it's no wonder that university and state and local officials feel no compunctions about administering similar programs. If the federal government does it, it must be legal, right?

This reader (from Texas) adds: "Federal agencies send out notices when there's a change in whether or not we can buy office supplies on our grants. If there was a panic about the legality of these programs after the
Michigan decision, I completely missed it...and I didn't miss the
reaction to Hopwood [which outlawed racial preferences in the 5th Circuit, including Texas]." Hopwood was a bright-line case forbidding preferences, whereas the Court's split decision in the affirmative action cases allows rather preferences, amounting even to implicit quotas, for diversity purposes in education, but bans, as I read them: (1) explicit quotas; (2) programs justified not for diversity purposes, but to redress past societal discrimination, increase the representation of minorities in a particular field, or increase the likelihood that certain population groups will be served by professionals graduating from a certain program; (3) explicit point systems that grant all members of certain underrepresented minorities the same number of bonus points on an admissions grid; and (4) if (1) and (3), then implicitly programs that are open to minorities only.

 
[Jacob Levy, 3/10/2004 03:15:26 PM]
Esoterica: Wow. this sounds awful-- truly, epically awful. A Tim-Robbins-scripted play about the war in "Gomorrah" in which characters named"Woof" and "Pearly WHite" walk around saying "Heil Leo Strauss!"-- with a projection of Strauss' face on the screen, no less.

Robbins is a brilliant actor and a first-rate director. Even when he's scratched his propaganda itch before-- e.g. Bob Roberts-- he's managed to create something with significant entertainment value; and Dead Man Walking managed to oppose the death penalty while still treating it as a vexed moral problem. It was among the most serious treatments of a difficult moral-political issue I've seen on a movie screen.

Now, he appears to have gone way, way off the deep end.

 
[Eugene Volokh, 3/10/2004 02:24:08 PM]
Language: I was singing a Russian song to little Benjamin, and I accidentally misspoke -- instead of the preposition "k" ("to"), I used the preposition "s" ("with"). And then I realized: The phrase "k nim," which I should have used, means "to them," while "s nim," which I accidentally said, means "with him." The same word "nim" means "them" when used with a "to," and "him" when used with a "with." (In Russian, as in Latin and many other languages, nouns and pronouns have many different forms depending on the prepositions with which they're used.)

     So my first thought was: What a weird thing language is. But my next was: I have spoken Russian for over 30 years, a great deal when I was young and quite a bit even after that, and I had never once noticed this. I was never confused; I didn't get it wrong; there was no problem flowing from this odd complexity. Somehow it's perfectly natural for one's brain to deal with weirdnesses like this. Whatever strange forces molded Russian into the beast of a language that it is for foreigners to learn (Russian grammar is much nastier than English), learning it with all its twists and turns is literally child's play for native speakers. And when we use it regularly, we don't even realize how complicated it is.

 
[Juan Non-Volokh, 3/10/2004 01:30:57 PM]
Rush and The Trees Revisited: I would never have imagined it, but some don't believe Rush's "The Trees" is an anti-egalitarian anthem. Daniel Glick, for example, thinks I've misread the parable and is "pissed" that I am "trying to co-opt" a song he loves for a political view he "abhor[s]." Well, if Glick is going to be annoyed at anyone, it should be Rush lyricist Neil Peart, not me. Peart has long been an admirer of Ayn Rand, and her philosophy of objectivism heavily influenced his lyrics for Rush, especially in the 1970s and 1980s, as detailed in this article from Liberty by Scott Bullock.

Other readers get it, suggesting "The Trees" is Kurt Vonnegut's "Harrison Bergeron" set to music in the forest. To another reader, "The Trees" recalls this quote by Milton Friedman: "I cannot understand the value of a system of equality that cuts down the tall trees to the level of the short ones."

 
[Eugene Volokh, 3/10/2004 10:16:32 AM]
More on the Federal Marriage Amendment: Reader John McGuinness (not the lawprof John McGinnis) writes:

One more note on waiting to pass FMA until a court uses the 14th Amendment or full faith and credit clause to force states to recognize same sex marriages -- it would place FMA supporters in the position of having to invalidate existing same sex marriages, which is at least politically different from preventing them from being valid in the first place.

Andrew Sullivan has already anticipated this, saying that this would result in conservatives fighting for divorce, be undoing existing marriages, etc. Doesn't it seem reasonable to want to settle what the rules are, so that same sex couples don't get thrown into this now-we're-married now-we're-not roller coaster?

 
[Tyler Cowen, 3/10/2004 08:08:34 AM]
My Architect: I enjoyed this film very much. Don't worry if you are not a Louis Kahn fan. Kahn's son made a chronicle of his attempts to know his deceased dad by tracking down his buildings and the people who knew him. It turns out that Kahn cultivated multiple families in secret and trusted only his work, not human relationships. The unraveling of the story increases both our fascination with Kahn and our pity for him and his emotional victims. The movie offers history, a personal interest story, an insightful take on family relations, and of course a look at some important buildings. We frequently doubt whether it is a movie about Kahn or about his son. But most of all the film draws you in and makes the story fun to watch. Like all good "biographies" it asks the question what a human life really consists of. Recommended, and see the second link above (from the ever-excellent www.2blowhards.com) for further links about Kahn and his works.

On a related note, I have just ordered the DVD of another favorite documentary of mine, When We Were Kings, the story of the Ali-Foreman bout in Zaire. And no, I am not a boxing fan, this is a dramatic movie in the best sense of the term.

 
[Eugene Volokh, 3/10/2004 08:07:10 AM]
RSS feed: Our Blogger RSS feed is no longer feeding. We're planning to move away from Blogger soon -- this latest problem was the straw that broke the camel's back -- but if anyone has any tips on how to temporarily fix the feed in the meantime, please let me know (volokh at law.ucla.edu).

 
[David Bernstein, 3/10/2004 07:52:55 AM]
George Bush, Liberal President? That's the theme of an article by Prof. Stephen Cox in the most recent issue of Liberty Magazine (not available online, hey, get with it guys!), tracking points I made here, and in the followup posts linked to there.

 
[David Bernstein, 3/10/2004 07:04:16 AM]
Balancing Tests, RIP (One Can Only Hope)! On Monday, the U.S. Supreme Court, overturning a 24 year old precedent, held in Crawford v. Washington that the Confrontation Clause means what it says and says what it means: the accused in a criminal trial has the right to be confronted by witnesses against him. This holding replaced the Roberts precedent, which reduced the Confrontation right to a balancing test meant to ensure that out of court testimony was "reliable." Easily overlooked in the opinion is Justice Scalia's principled attack on balancing tests as means of protecting constitutional rights:

We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611- 612, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (SCALIA, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's--great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts' providing any meaningful protection in those circumstances.

Not surprisingly, Justice O'Connor, who has an inordinate fondness for balancing tests, did not join Justice Scalia's opinion.

Balancing tests are an especially bad idea with regard to constitutional rights, but they hardly serve the interests of justice in other areas of law. Consider the influential "Wade" balancing test in products liability law, which asks that liability for injury be determined by weighing the following factors: 1. The usefulness and desirability of the product-its utility to the user and to the public as a whole; 2. The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury; 3. The availability of a substitute product which meets the same need and is not as unsafe; 4. The manufacture's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; 5. The user's ability to avoid danger by the exercise of care in the use of the product; 6. The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and 7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

This test is quite obviously incoherent, providing no mechanism for a product manufacturer to determine in advance whether its product will be determined to be defective. As Richard Epstein has written, "It is a utilitarian nightmare. What starts out as a faithful application of the utilitarian calculus ends up as an unprincipled battle of the experts. Everything is admissible; nothing is quantifiable; nothing is dispositive... all too often, anything from a plaintiff’s verdict for punitive damages to defendant’s verdict of no liability is consistent with the evidence."
Let's hope that Scalia's opinion is the beginning of the end of balancing tests.

 
[Randy Barnett, 3/10/2004 03:18:00 AM]
Vote Now for 2004 Lysander Spooner Award: From the Laissez Fair Books website.

Laissez Faire Books is pleased to announce the creation of the Lysander Spooner Awards for Advancing the Literature of Liberty. The honor will be awarded monthly to the most important contributions to the literature of liberty, followed by an annual award to the author of the top book on liberty for the year. The annual "Spooner" earns $1,500 cash for the winning author.

LFB.com visitors are invited to place their votes now for finalists for the 2004 Spooner Award, honoring the best book on liberty published in 2003. . . . The nominees are:

Anne Applebaum, Gulag: A History.
David Bernstein, You Can't Say That!.
Clint Bolick, Voucher Wars.
James Bovard, Terrorism and Tyranny.
Bruce Caldwell, Hayek's Challenge.
George Crile, Charlie Wilson's War.
Thomas Fleming, Illusion of Victory.
Philip Harvey, Government Creep.
John Lott, Bias Against Guns.
Tibor Machan, Passion for Liberty.
Charles Murray, Human Accomplishment.
Johan Norberg, In Defense of Global Capitalism.
Walter Olsen, Rule of Lawyers.
Virginia Postrel, Substance of Style.
Jacob Sollum, Saying Yes.
Richard Stroup, Eco-nomics.
Peter Wood, Diversity.

The top four vote-getters will then be submitted to a jury, to be made up of members of the Center for Independent Thought (LFB's parent organization) board of directors, as well as other prominent libertarians and scholars, for the final award selection, to be announced in March.

Click here to go to the page where you can vote.

Tuesday, March 09, 2004

 
[David Bernstein, 3/9/2004 07:07:17 PM]
Praise for Lochner Circa 1979: A while back, I wrote that between the demise of the Supreme Court's liberty of contract jurisprudence during the New Deal period and publication of Bernard Siegan's Economic Liberties and the Constitution in 1980, I could find only one article, chapter, or book that had anything good to say about the Court's most famous liberty of contract case, Lochner v. New York. Well, it turns out that in additon to the one article I previously cited, William Letwin beat Siegan by a year. Tim Sandefur pointed me to Letwin's "Economic Due Process in the American Constitution And The Rule of Law" in Liberty and the Rule of Law, ed. by Robert L. Cunningham, (Texas A&M U Press 1979). In this chapter, Letwin clearly evinces sympathy for Lochner, even concluding that "[w]hether economic due process will be restored we cannot foretell, but it could be and should be." On the other hand, Googling Letwin suggests that he spent his career as a professor in England, not the U.S., so my original statement still stands, if we limit the author pool to this side of the Pond.

 
[David Bernstein, 3/9/2004 03:03:25 PM]
Minorities-Only Fellowships: In light of the outcome of Gratz v. Bollinger last term, invalidating University of Michigan's automatic award of twenty admissions "points" to minority students, it seems clear that educational programs that are limited to minority students are illegal, and, when funded by the government, unconstitutional (the standard, according to Supreme Court precedent, being the same). Nevertheless, my inbox brings me news of the "National Science Foundation’s Law and Social Science Program to support the Law and Social Sciences Pre-Dissertation Minority Fellowship and Mentoring Program." Only first and second-year graduate students from underrepresented minority groups in law and social sciences (which, unlike most affirmative action programs, includes Asian Americans) who are in social science departments are eligible to apply. My views on affirmative action are tinged with a certain degree of ambivalence, at least with regard to African Americans, but I find it remarkable that the culture of racial preferences is so strong among the academic elite that what seems like a blatantly illegal, exclusive program would be advertised so nonchalantly.

 
[Eugene Volokh, 3/9/2004 03:00:50 PM]
Not a compelling argument against the Federal Marriage Amendment: Yale professor Lea Brilmayer writes, in today's Wall Street Journal:

[N]obody [has] bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses. . . .

If today's proponents of a marriage amendment are motivated by the fear of some full faith and credit chain-reaction set off in other states by Massachusetts, they needn't be. . . .

Unlike most other hotly contested social issues, the current constitutional marriage debate actually has a perfectly good technical solution. We should just keep doing what we've been doing for the last 200 years.

I actually agree with a good deal of Prof. Brilmayer's other points, such as the value of leaving the matter to the states, and the impropriety of trying to save Massachusetts voters from their own Supreme Judicial Court's interpretation of the state constitution. But the argument I quote above has an obvious weakness -- it only works so far as courts are willing to recognize "longstanding precedent."

     Lawrence v. Texas shows that the Supreme Court is willing to overturn a directly on-point Supreme Court precedent that's under 20 years old, and at the same time strike down statutes that have been seen as constitutional for centuries. Goodridge shows that some judges are willing to overturn a many-centuries-old practice of limiting marriage to male-female couples; sure, that was state judges interpreting the state constitution, but what state judges do now, federal judges might do later. On matters of gay rights, quite a few judges -- not by any means all, but quite a few -- are quite willing to set aside both precedent in the sense of traditional understandings and precedent in the sense of squarely controlling Supreme Court decisions. And of course many legal scholars in the gay rights movement has been assiduously arguing that courts should use the Fourteenth Amendment to require states to recognize in-state same-sex marriages, and the Full Faith and Credit Clause to require states to recognize out-of-state same-sex marriages. Judges might well listen to them more than they would to Prof. Brilmayer.

     Now of course some people approve of Lawrence and Goodridge, and they may approve of reversing the longstanding precedent that Prof. Brilmayer points to (or they may have different interpretations of this precedent). Others might mildly support a state-by-state approach, and hope that courts stick to the precedent that Prof. Brilmayer describes, but not be too upset about a contrary outcome and thus not worry too much about the possibility of that outcome. (Remember, I'm arguing that federal courts might use the Fourteenth Amendment or the Full Faith and Credit Clause to require states to recognize same-sex marriages, not that they surely will do so.)

     But if you think that the state-by-state approach that Prof. Brilmayer outlines is good, and the alternative of a judicially mandated decision is really bad, then you might well worry that assurances based on "longstanding precedent" aren't that helpful. You might also think that now is the best time to reinforce that precedent with an explicit constitutional amendment. Today, about 30-40% of the public seems to support same-sex marriage rights; perhaps a Federal Marriage Amendment could be passed in the face of that. But if the number rises to, say, 40-45%, then it might be too late -- if courts then reverse Prof. Brilmayer's longstanding precedent, there'll be nothing that the 55-60% (and many more in some states) could do.

     So I can certainly see why people who are really worried about courts mandating same-sex marriage won't be much relieved by Prof. Brilmayer's argument. That shouldn't be an argument, even for them, in favor of a really broad FMA, like the Musgrave draft, which would strip states of the power to decide the matter for themselves. But it would be an argument for them to support a narrower FMA, such as one based on the second sentence of the Hatch draft, "Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman." Such an FMA would make sure (or as sure as we can be) that courts will indeed allow the state-by-state approach that Prof. Brilmayer advocates.

 
[Eugene Volokh, 3/9/2004 02:33:35 PM]
More on Sen. Hatch's alternative Federal Marriage Amendment draft: The more I think about it, the more I dislike the first sentence of the Hatch FMA draft, even while I generally support the second. The draft reads:

Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

Here are the possible problems with the first sentence:

1. This morning, I mentioned that the sentence would almost certainly prohibit common-law mar