Archive | October, 2010

Strange California Law:

The Sacramento Bee reports that the founder and operator of, a website functioning as a kind of eBay-like marketplace for (among other things) student class notes, has received a cease-and-desist letter from the Cal State U. Chancellor’s office, informing him that the website violates a state education code section that prohibits anyone from selling or disseminating “academic presentations” for commercial purposes, including handwritten class notes. And in a move that surely will have the effect of driving traffic numbers at the site through the roof, all students at the 23 CSU campuses were sent an e-mail warning them that they faced discipline or expulsion for selling class notes through NoteUtopia or by any other means.

Apparently, the law in question was enacted in 2000 at the behest of the California Faculty Association to prevent students from disseminating class notes. I would think it would be subject to a serious challenge under the First Amendment, though the Supreme Court’s decisions providing lowered protections for “commercial speech” might enable the statute to survive the “intermediate scrutiny” that it would likely receive in court.

[Thanks to Justin Gordon for the pointer] […]

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Some new articles

A few items I wrote this week for other sites: Examination of the gun issue in the competitive 2010 U.S. House races, for The New LedgerAnalysis of the denial of the motion dismiss in the 20-state lawsuit against Obamacare.

For “Who Said, You Said,” a Colorado political website, an article on Time magazine misreporting, but then properly correcting, Rep. Betsy Markey’s voting record on the health care federalization bills. And a piece criticizing the Denver Post for its coverage of the evidence-free charges of felony conduct made against the U.S. Chamber of Commerce.

Next Tuesday, the Encyclopedia Britannica website will feature several essays on marijuana law and policy, including one in which I look at the unsavory origins of the federal prohibition. […]

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Libertarian critiques of cost-benefit analysis

I’m looking for critiques of regulatory cost-benefit analysis from a libertarian perspective. (Not just yours that you might think up, but articles or books.) Any suggestions?

What also might count: A critique of neoclassical economics from a libertarian perspective, for instance along the lines of “people think this perspective is all free-market but it’s not necessarily, and if you’re into natural rights you should think twice before going there.” Such critiques could continue “… and therefore you should go Austrian,” or “… and therefore you should use moral arguments exclusively,” or what have you. […]

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Self Defense and Non-International Armed Conflict in Drone Warfare

Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised – many talks, panel discussions, debates, and so on.  In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense.  I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict.  It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF – a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists […]

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Deliberative Democracy and Political Ignorance

Deliberative democracy is a very popular idea among political theorists and legal scholars. Advocates include such luminaries as Jurgen Habermas, and Amy Gutmann and Dennis Thompson. In this new article, produced for a symposium on deliberative democracy at Critical Review, I argue that deliberative democracy runs afoul of the problem of widespread political ignorance. Here’s the abstract:

Deliberative democracy is one of the most influential ideas in modern political thought. Advocates want citizens to actively participate in the democratic process by seriously deliberating over important issues. Deliberative democrats expect more of voters than merely acting to “throw the bums out” if things seem to be going badly. These high aspirations are admirable. Unfortunately, they run afoul of the reality of widespread voter ignorance and irrationality.

Part I briefly summarizes the key principles of deliberative democracy, emphasizing the high degree of voter knowledge and sophistication required for the theory to work. In Part II, I explain why the “rational ignorance” of voters poses a serious obstacle to deliberative democracy. Most voters have relatively little or no knowledge of public policy. The problem of political ignorance is exacerbated by the enormous size and complexity of the modern state. Even a substantial increase in political knowledge would not be enough to give most voters a more than minimal understanding of the many functions of government.

Part III considers the closely related challenge of “rational irrationality.” Not only do voters have only a limited incentive to acquire knowledge about politics, they also have little reason to rationally evaluate the information they do possess. This further undercuts prospects for rational public deliberation.

Parts IV to VI consider three proposals to increase political knowledge that have been advanced by deliberative democrats. These include using education to raise the level of political knowledge,


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Orthodox Jewish Arbitrations, Islamic Arbitrations, and Discrimination Against Witnesses Based on Sex or Religion

I’ve at times blogged about the propriety of letting people agree to Islamic binding arbitration (by private Islamic arbitration panels) of their disputes, just as they can agree to Christian or Jewish arbitration, and just as they can agree to secular arbitration. (See, for instance, this post.) This agreement could take place either before a dispute arises (for instance, as part of a contract entered into at the time a business deal or a marriage takes place), or once a dispute arises.

Such arbitration decisions are generally enforceable, unless they are contrary to particular important public policies. Naturally, for instance, an arbitral decree ordering that one party be stoned to death or have his hand chopped off wouldn’t be enforced. As I understand it in many states arbitration decisions related to child custody wouldn’t be enforced, either (because such an arbitration would purport to resolve the rights of non-parties to the arbitration agreement, namely the children). But arbitration decisions in ordinary commercial disputes, church employment disputes, disputes about property settlement in a divorce, and the like would largely be enforceable. That’s already done for Christian and Jewish arbitration; under American law, it should equally be so as to Islamic arbitration.

But there is one potential difficulty, I think, and it’s one that potentially applies to Orthodox Jewish arbitrations as well as to Islamic arbitrations: The application of procedural rules that discriminate against witnesses based on their sex, religion, or ethnicity. As I understand it, Orthodox Jewish decisionmaking bodies (beth dins) tend to disallow testimony by women in at least some situations. (See, e.g., this account.) I am told that they also tend to disallow testimony by non-Jews in at least some situations; this would constitute either religious or ethnic discrimination (and quite likely ethnic discrimination, to the extent […]

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The First Amendment in the Classroom

The U.S. Court of Appeals for the Sixth Circuit rejected a teacher’s claim that a local school board violated her First Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials” by failing to renew her contract after a series of conflicts over her choice of reading assignments for her high school classes.  Judge Sutton’s opinion in Evans-Marshall v. Board of Education begins:

Does a public high school teacher have a First (and Fourteenth) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials”? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), we affirm the judgment rejecting this claim as a matter of law.


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Is NPR Bound by the First Amendment in Its Hiring/Firing Decisions?

A bunch of people have asked me whether NPR’s firing of Juan Williams for his statement about Muslims on The O’Reilly Factor violates the First Amendment. The answer is “no.” NPR is not a government actor, and thus not bound by the First Amendment; that it gets some funding from the government does not make it a government actor, just as private colleges’ getting grants and other benefits doesn’t make them government actors bound by the First Amendment. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (so holding, even as to a school that got 90% of its money from the government).

The government may by statute impose many conditions on the use of government funds — that’s what Congress did with Title VI and Title IX (which generally bar recipients of federal funds from discriminating based on race and sex). Congress thus might condition NPR’s funding on its not firing commentators based on their off-NPR speech. (I say “might” because there are some twists which I set aside for now.) But Congress hasn’t enacted such a statute, and it is of course under no obligation to do so. […]

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Time to Codify a Miranda Exception for Terrorists?

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been […]

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Apples and Oranges

I’ve long dissented from the claim that it’s hard to compare apples and oranges:

We compare apples and oranges all the time! We compare them by price, by how much we like the taste, by likely sweetness and ripeness, by how well they’ll go in a tasty fruit cocktail, and so on. In fact, every time we go to the store and buy apples rather than oranges — or vice versa — we are necessarily (if implicitly) comparing apples and oranges.

I hereby move that the phrase be changed to reflect two items that really are radically dissimilar — say, “comparing apples and democracy,” or “comparing oranges and the multiplication table.” All in favor, say “aye”; all opposed, say “nay”; motion carried. It’s Now Official; use them in good health.

Science, it turns out, is on my side, says an article in the Annals of Improbable Research. Thanks to boingboing and Jenny Macht for the pointer. […]

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Vampire Slayers and the Law

Co-blogger Eugene Volokh recently referenced some criminal laws relating to Buffy the Vampire Slayer. In this 2007 post, I considered the implications of the show for property rights and “quick take” condemnations. Unlike Eugene, I managed to incorporate Faith into my legal analysis as well. As I pointed out, eminent domain abuse is an excellent example of the rogue slayer’s “want, take, have” philosophy in action. Faith eventually realized the error of her ways. But many state and local governments so far have not. […]

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May Courts Interpret Contracts Under Religious Law (Islamic Law, Jewish Law, Canon Law, etc.)?

In an earlier thread, reader frankcross asks:

Suppose parties call for Islamic law and specified a judicial forum. If a court shied away from deciding that, it would leave the issue unresolved. Essentially you would be denying judicial review to parties who wanted a court to use religious law and to resolve the question. Which kind of seems like discrimination against a religion, telling its adherents they are not allowed to specific religious law in their contracts.

I usually much oppose discrimination against religion (see, e.g., my Equal Treatment Is Not Establishment), but I think here such discrimination is dictated by what I call the No Religious Decisions strand of Establishment Clause caselaw. Here’s a very brief summary: In a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), the Supreme Court held that secular courts may not resolve religious questions, such as which rival church group most closely follows orthodox church teachings. Some states had rules, borrowed from English law, under which the more orthodox group would get to keep the church property, presumably on the theory that this would be more in keeping with what was intended by past donors to the church. But the Court held that such rules may not constitutionally be applied by civil courts (paragraph break added):

First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First


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John Louth of OUP Guestblogging at Opinio Juris

Some VC readers, particularly academics, might be interested in the guest posts going up this week at Opinio Juris by John Louth, the editor in chief of academic law at Oxford University Press, thanks to the good offices of OJ’s Kevin Jon Heller.  Mr. Louth is guest-posting on international law publishing, but much of what he has raised is generally applicable to law publishing – things like relations between journals, books, and blogs – and the posts are a very interesting read, particularly for professors.  Thanks to him and to KJH for arranging it.  I’ve linked to the introduction from KJH; scroll up to get to the guest posts. […]

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