Archive | August 17, 2010

Jack London, Racist Progressive

Jack London is remembered today mostly for writing inspiring novels about dogs and the Alaskan wilderness. In his own time, however, he was also known as a prominent advocate of socialism and a virulent racist. At Slate, Johann Hari has an interesting review of a new biography of London:

The United States has a startling ability to take its most angry, edgy radicals and turn them into cuddly eunuchs…..

But perhaps the greatest act of historical castration is of Jack London. This man was the most-read revolutionary Socialist in American history, agitating for violent overthrow of the government and the assassination of political leaders—and he is remembered now for writing a cute story about a dog…..

The richer London became, the more radical his politics were. He was soon praising the assassination of Russia’s political leaders and saying socialism would inevitably come to America. Even as he employed small battalions of servants, he insisted he was a Robin Hood figure: They would be made to wait on the tramps and trade unionists he invited to his mansion.

And yet there is an infected scar running across his politics that is hard to ignore. “I am first of all a white man, and only then a socialist,” he said, and he meant it. His socialism followed a strict apartheid: It was for his pigmentary group alone. Every other ethnic group, he said, should be subjugated—or exterminated. “The history of civilization is a history of wandering—a wandering, sword in hand, of strong breeds, clearing away and hewing down the weak and less fit,” he said coolly. “The dominant races are robbing and slaying in every corner of the globe.” This was a good thing, because “they were unable to stand the concentration and sustained effort which pre-eminently mark the races best

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Jesse Friedman Vindicated (Sort of)

Back in 2004, I wrote:

I saw the documentary “Capturing the Friedmans” last night. The film is about a “normal” family torn apart when the pedophile father and his eighteen year-old son [Jesse] are accused of (and ultimately plead guilty to) violently molesting children who took computer classes in their home. The case arose against a backdrop of hysteria over purported mass child abuse around the country; some of the alleged perpetrators in other cases have been exonerated.

The film is interesting on many levels, but holds some special interest for a professor, like myself, who teaches evidence and expert evidence. (Warning! spoilers ahead!) There is the prosecutor who recalls that the Friedmans had “stacks” of child pornography in open view in their home (suggesting the sort of recklessness that the Friedmans would have to have if they engaged in the sort of abuse alleged), when in fact there was one magazine in a drawer in an office, and another stash hidden behind the piano. One of the accusers recants as an adult in the film, suggesting he was bullied into his allegations by prosecutors. A parent describes witnessing the bullying of his son, and peer pressure from other parents to support their children’s allegations with further allegations. Another prosecutor involved in the case admits asking children in molestation cases leading questions, and rejecting answers that tend to exonerate the accused. Another accuser, who initially seems a plausible witness to horrific events, reveals that he remembered nothing about the abuse until his memories were recovered (or invented) under hypnosis. Though the Friedmans are accused of repeated anal sodomy on young children, there is no physical evidence supporting the allegations. The allegations themselves seem so extreme as to be virtually unbelievable (one allegation involved an entire computer class of eight to

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Piracy Charges Dismissed by Federal Judge

Prof. Eugene Kontorovich passes along the news about United States v. Said, and has this analysis:

Today a district court in Norfolk dismissed on summary judgment of piracy charges against alleged Somali pirates captured by the U.S. for an attack on American warship. (Many other non-international charges remain.) In short, he ruled that attempts are not part of the definition of piracy. This is a tremendous development, it is perhaps the first federal opinion on the meaning of piracy at international law since 1820. But even more remarkably, the judge’s opinion touches on major questions about the incorporation of international law into domestic law. His argument for dropping the charges is the same kind of argument currently made against the use of conspiracy charges by Guantanamo military commissions; and echoes the calls to limit ATS litigation based on relatively novel norms. As it happens, this is all the subject of an article I’m finishing off, Discretion and Delegation in “Defining . . . Offenses”: Article I Limits on Alien Tort Suits and Military Commissions.

The last time the Supreme Court addressed itself to the issue, in U.S. v. Smith (1820), it said piracy was robbery on the high seas, taking things by force. The judge concludes from this that attempted piracy is not robbery – because nothing is taken. I disagree: the issue in Smith was not what the definition was, but whether there existed a reasonable concrete one such that Congress executed its power to “Define” by simply naming the offense. Smith did not rule out attempts. Moreover, since the statute criminalizes piracy against “the law of nations,” Congress, which knew that international law changes, manifestly did not want to set the definition in stone.

Judge Jackson knows that various developments indicate that attempts are part of

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Ninth Circuit Strikes Down Stolen Valor Act, Holds That Knowing Lies About Whether One Has Received Medals Are Generally Constitutionally Protected

The 2-to-1 decision, came in United States v. Alvarez; I think that this is probably not quite right, see this amicus brief I filed in a similar case, though I think the question — what restrictions does the First Amendment impose on laws that restrict knowing lies? — is difficult, and the majority makes a solid argument for its position. I’m not sure whether I’ll have a chance to blog more about this in the next few days, but I thought I’d note the decision.

Note, by the way, that the decision did indeed hold that the Stolen Valor Act is unconstitutional even if limited to knowing falsehoods (a limiting construction that the court could have and should have imposed, if it were sufficient to make the statute constitutional); see PDF pp. 19-20. [...]

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Ninth Circuit Expedites Second Prop. 8 Appeal

Today the motions panel of the U.S. Court of Appeals for the Ninth Circuit followed up on its order  expediting the appeal in Perry v. Schwarzenegger with an order expediting the appeal filed by officials of Imperial County, California.  Imperial County officials, including the Deputy County Clerk, has sought to intervene in defense of Proposition 8 in Perry, but Judge Walker denied their motion.  They have appealed both his denial of their effort to intervene as well as the case itself.  Under today’s order, the two cases will be calendared together.  Hat tip to Lyle Denniston who has more here. [...]

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Solon v. Freud

Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in an interesting tort case, Sigmund v. Starwood Urban Retail VI, LLC.  In this case, Donald Sigmund sued seeking tort damages from the owner, managers, and operators of a garage in which a car was parked that exploded due to a car bomb placed by Donald’s half-brother, Prescott, that had been intended for their father.  The district court granted summary judgment for the defendants and Donald appealed.  [Donald also sued his half-brother but later dismissed this claim.]

Perhaps because the D.C. Circuit does not see this sort of case all that often, Judge Garland has some fun with the opinion’s opening.

Solon, the ancient Athenian lawgiver, made no law against patricide because he thought it impossible that anyone could commit so unnatural a crime. Two and a half millennia later, Freud famously claimed the opposite — that every son harbors murderous impulses toward his father. In this case, we side with the lawyer not the psychoanalyst. Donald Sigmund, the accidental victim of a car bomb that his half-brother intended for their father, cannot recover from the third-party defendants he has sued unless his half-brother’s crime was foreseeable. We conclude that neither that crime nor any similar one was foreseeable, and thus affirm the district court’s grant of summary judgment in favor of the defendants.

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Work, Compensation, and Retirement Age: Lessons from the Professors

The NYT Room for Debate blog, via TaxProf Blog, has a debate among professors over the effects of tenure, a good job in both working conditions and compensation, and no mandatory retirement age. Here is how the Times sets up the debate among the professors (not specifically law professors):

If tenured professors are retiring later, with some working well into their 70’s and beyond, does that block the career paths of their brilliant young students? A recent article in The Chronicle of Higher Education examined the effects of the aging professoriat, and quoted administrators who said that turnover was crucial to hiring new professors. A TIAA-CREF faculty survey found that nearly one-third of the professors polled said that they expected to work until at least 70, compared with about a quarter of American employees generally.

This particular discussion is set up around professors, tenure, and the university. But I want to add a more general observation.

With an aging population that is both more healthy and long-lived (compared to the original participants in social security arrangements in developed world countries), there is widespread agreement that people need to work and be productive longer in their lives. Hence the arguments in Europe over retirement at 62 or 67, and somewhat similar arguments over retirement ages and benefits for public employees, among others, in the United States. But these debates tend to leave out an important dimension – what kind of work should these older workers be doing, and at what kind of compensation?

The dilemma is this, inelegantly stated. The argument for working longer says that we need the productive labor of these people. Fine. But if you look at workplaces – this debate over universities is a good example – what we see instead is a perceived need to [...]

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Elected Politician Using Government Web Site to Mobilize Public Opposition to Private Speech About Politicians

The Public Advocate for the City of New York (Bill de Blasio) has a site that lists major (nonmedia) corporations’ stands on using corporate money to speak about candidates for political office. Then, for corporations that are so speaking, the site lists contact information with the line

Demand that corporations stop taking advantage of Citizens United: Call [corporation name] at [phone number]

(or gives an e-mail address). For corporations that aren’t so speaking but haven’t pledged not to engage in such speech, the site uses the line “Hold [corporation name] Accountable: Call [corporation name] at [phone number].” The site does not list any such information about unions, who were also freed to speak by Citizens United.

I don’t think there’s any constitutional barrier to the government’s trying to put public pressure on certain organizations, in order to keep them from speaking about politicians. But it still struck me as unusual, and worth noting. If you’d like to express your views about the policy, call Bill de Blasio’s office at (212) 669-7200; if you’re a New York City resident, you might want to use the constituent services line, (212) 669-7250. Thanks to the Holtzman Vogel PLLC blog and to Barnaby Zall for the pointer. [...]

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Randall Kennedy on Affirmative Action

Randall Kennedy, one of my favorite writers on race issues, has a provocative essay on affirmative action in the American Prospect. Kennedy’s argument is that in the last 20 years, the diversity rationale for affirmative action has proved surprisingly effective at making affirmative action considerably less controversial than it used to be. From the conclusion:

The true measure of affirmative action’s staying power is that its absence now is virtually inconceivable. Liberalism has made racial homogeneity uncool and unacceptable. Even many conservatives are made uncomfortable by lily-white gatherings — hence the enhanced value to the right of Clarence Thomas, Shelby Steele, Condoleezza Rice, Linda Chavez, and any well-spoken Negro or Latino who consorts with the Tea Party crowd. That conservatives practice affirmative action even as they condemn it is a tribute to liberalism’s handiwork.

What do you think?

Hat tip: Ann Althouse. [...]

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