The Volokh Conspiracy

Schmitt redux: More on that odd Alan Wolfe article I lmentioned a couple of days ago, the one that documents the fascination of the intellectual left with Carl Schmitt and then proceeds to say that contemporary American conservatives are Schmittians-in-practice, the evidence for which is that Ann Coulter is vicious.

1) The link I gave was subscription-only, but the article's been posted on the free portion of the Chronicle's site.

2) Russell Arben Fox offers this skeptical analysis. The Jens 'n' Frens bloggers have been discussing the article as well; the most substantial posts are here and here.

You can't take it with you: The following article might stimulate your thoughts in several different directions. It asks whether you should give away or invest your money. How much you should leave for your heirs. Whether religion is needed to stimulate more charity. And whether you should target the poorest people with your aid or seek to build up institutions instead. I'll offer an excerpt without further specific comment:

"Tom White...will get his wish. At 84, the construction millionaire has given away his fortune. If he has his way, he'll be down to his last quarter when he draws his last breath. Since [WWII]...he estimates he has given away $75 million, pretty much all of his assets. He has supported more than 100 causes over the years, but his biggest gift by far has gone to Partners in Health, the program made famous last year with the publication of Tracy Kidder's book "Mountains Beyond Mountains." The book details the work done in Haiti and other Third World countries by Dr. Paul Farmer, a Harvard professor and infectious-disease specialist whose work on AIDS and tuberculosis for the world's poorest has been hailed as groundbreaking. White put up the initial money for the program and has steadily funneled tens of millions of dollars
into it.

And why Haiti?

"Once White got a glimpse of Haiti, that was it; he decided there could be no better use for his money. "I was angry," he says. "You see the kids with red hair and distended bellies," signs of severe malnutrition. During one trip to Partners in Health's clinic in Cange, White told Farmer and his colleagues to outfit the village's shanties with cement floors and tin roofs -- and send him the bill. More than 100 huts were fixed.

"The floors were dirt, and when it rained, people would sleep in the mud," he says. He is proud of the food program at Cange -- "the kids get two meals a day." Today, Partners in Health runs a full-service hospital, AIDS and tuberculosis treatment clinics, a women's health center, and several cottage industries in Haiti. It has also launched programs in Peru, Siberia, Guatemala, Mexico, and Boston."

But it doesn't stop there:

"A trip to McDonald's typically costs him a hundred bucks. He'll search out the janitors and hand over $20 bills. "The woman cleaning the toilet can't speak English, she has nothing, and no one gives her anything," he explains. He also supports Sojourner House, a homeless shelter in Roxbury; Odwin Learning Center in Dorchester, which helps adults get into college; and afterschool and summer programs for poor kids in Roxbury.

Ask him why, and White, who attends Mass daily, replies: "I'm motivated a lot by what Jesus wants me to do, or what I think he wants me to do. And I think he wants me to help make the world a better place.""

Here is the full story. Thanks to Selena Maranjian for the pointer.

Search engine query that somehow got someone to our site:

jewish woman fetish what to call it?

I have no idea.

The new (2005) U.S. News rankings of law schools are being posted and discussed all over the web. Biggest surprise: Boalt drops to thirteen. George Mason continues its climb, to 38. I'm sure Brian Leiter will have some choice words to say about the rankings, as usual. I'm not a huge fan of U.S. News's methodology. As an example of why, GMU typically gets approximately the same "academic reputation rank" as schools whose entire faculties are outproduced in any given year by one or two of my colleagues, and GMU's actual peer reputation is much, much higher than U.S. News's methodology determines.

However, the reaction of the Association of American Law Schools to the rankings, which has been to simply condemn them, is unproductive. Prospective law students are going to invest a lot of time and money in law school, and they are looking for as much information as they can get. Rankings, including even U.S. News's rankings, provide useful information. If nothing else, the rankings themselves influence the decisions not only of students, but to a lesser extent of junior faculty choosing among competing offers, law review editors selecting among articles, and employers, and thus become a self-fulfilling prophecy that can't simply be pooh-poohed.

The real problem is not rankings, but that U.S. News has had a virtual monopoly on the rankings, though Leiter has provided more useful (at least for those concerned with the academic quality of the faculty and students at various schools), though less used guidance for students for several years now. One hears of such things happening, but it's absurd, for example, when a student turns Chicago for NYU because the former is "ranked" sixth and the latter fifth. Both are excellent schools, with very different characteristics, located in very different cities. Which one a sudent decides to attend is a personal choice that should be influenced not a whit by a marginal difference in rankings. If there were competing ranking systems, students would recognize that there is a certain arbitrariness in any ranking, and be less hung up on whether a school has moved up or down slightly in any given year. Let a thousand rankings bloom! Newsweek, Wall Street Journal, American Lawyer, rise out of your collective stupors and do your own law school rankings!

UPDATE: My own advice to anyone [edit: any prospective law student that is, the rankings below are based on student preferences, not faculty quality or other "academic" measures] trying to determine a school's overall "ranking" is to look at the quality of students it attracts, as determined by LSAT scores (a much more objective measure than GPA). A huge amount of information is encapsulated in the actual revealed preferences of students who decide to attend or not to attend a law school, because most of these students will have done some research before choosing a school. Such information includes desireability of geographic location (clearly a big factor if one compares, e.g., U.S. News rankings to LSAT rankings), local reputation, job placement, quality of life, tuition costs, bar passage, faculty quality and commitment to teaching, student satisfaction, national reputation, and, of course, U.S. News ranking. Ranking by LSAT at the 75th percentile for 2003 gives the following top 45: (1) Yale (2) Harvard (2) Columbia (4) NYU (5) Chicago (6) Stanford (7) Duke (7) Georgetown (7) Northwestern (10) Michigan (10) Boalt (10) Penn (10) Virginia (14) UCLA (15) BYU (15) Fordham (!!!!) (15) USC (15) Cornell (15) Washington & Lee (15) BU (21) GW (21) BC (21) Colorado (21) Emory (21) Notre Dame (21) Texas (21) Vanderbilt (21) U. Washington (21) Wash U. (21) Minnesota (21) William & Mary (32) George Mason (32) Georgia (32) Georgia State (32) Hastings (37) Davis (37) Illinois (37) Lewis and Clark (37) Ohio State (37) North Carolina (37) Rutgers-Camden (37) Wake Forest (37) Cardozo. Statistics found at "The Ranking Game." Note that a more accurate accounting of LSATs scores would also look at the 25th percentile. A small, wealthy school like Washington and Lee, or a school with a niche market like BYU, will find it relatively easy to attract an excellent top quartile, but more difficult to fill the bottom half of the class. Note also that midwestern state schools tend to have weaker LSATs than the schools' reputations would allow--Iowa does not even make the top 45. These schools have excellent reputations, faculties, resources, and connections, but top students from the Coasts generally won't apply to or attend them so, for the geographically flexible, they are great places to apply (despite possible in-state quotas).

FURTHER UPDATE: Southern Appeal has published his own idiosyncratic ratings.

ALSO, via email, Brian Leiter objects to using LSAT scores as a "student desireability ranking":

Such information is not given very clearly, however, by median or even 25th and 75th percentile LSAT scores, and for a reason you allude to, in effect, in your comments on Washington & Lee: differing class sizes. Needless to say, we are vividly aware of this issue at a school with roughly 500 students in each entering class. It turns out, for example, that we attract more students each year with LSATs over 169 than Duke, even though Penn's 75th percentile LSAT is 169 and ours is 166. The difference, of course, is that Duke is less than half the size of Texas.

On the other hand, Texas has a relatively captive in-state market as an inexpensive state law school that is by far the best law school in a populous state, so one would expect the very top of its class to be extremely strong. Each school has its own "story" (how much better GMU would do if we didn't have to compete with Georgetown and GW in the DC area, and William and Mary and U. Va. for in-state Virginia students!) so any single ranking has to be taken with a large grain of salt.
Leiter has more comments on U.S. News here.

UPDATE: More on rankings by me here and here.

Procedure in death penalty cases involving foreign nationals: Hofstra lawprof Julian Ku passes along the following:

I thought you (and maybe your blog readers) would be interested to know that the International Court of Justice today issued a Final Judgment in Avena (Mexico v. United States) finding that the United States breached its obligations to Mexico under the Vienna Convention for Consular Relations. In particular, it appears to find that specific provisions of United States law, the "procedural default" doctrine as applied to foreign nationals arrested and convicted of capital crimes, violates the U.S.'s treaty obligations and that U.S. "review and reconsideration" of foreign nationals' capital convictions must take place in judicial rather than executive clemency hearings. This judgment is likely to force the Supreme Court, the President and state governors, to confront a difficult conflict between international treaty obligations and domestic federal and state law.

In a previous case, the Supreme Court refused to use the Vienna Convention to suspend a state execution because, among other things, the Anti-terrorism and Effective Death Penalty Act (AEDPA) (a federal statute) prevented defendants from raising treaty violations in their habeas proceedings. The ICJ, however, has now held that application of this procedural default rule violates the Vienna Convention.

Under domestic U.S. law, a later in time federal statute like the AEDPA is given effect by the Supreme Court unless and until Congress revises it. But some members of the Supreme Court, especially Justice Breyer, have suggested in related decisions that the ICJ interpretation of the treaty obligation should be given effect instead of the federal statute because the ICJ has the power to issue "authoritative interpretations" of U.S. treaty obligations.

This is a troublesome approach because Justice Breyer is suggesting that the ICJ's interpretation of U.S. treaty obligations is authoritative, even in the face of prior Supreme Court interpretations to the contrary. In other words, he is giving the ICJ the final word on the interpretation of U.S. treaty obligations, even with respect to how those obligations affect other domestic laws, such as the AEDPA statute. I think this is a dangerous approach that shifts too much interpretive authority to the ICJ. The judgment as to whether a treaty should modify domestic U.S. law, or be interpreted to avoid domestic U.S. law, should be held by the U.S. courts alone.

If the Supreme Court does not follow Justice Breyer's approach, the ICJ's opinion will still raise separation of powers and federalism problems. In theory, President Bush is under an international legal obligation to order the governors of the various states where Mexican nationals face execution to suspend those executions and hold new trials. But aside from being politically unattractive, such an act would be an remarkable assertion of unilateral federal power into traditional matters of state control.

It seems to me that there are two ways out of these difficulties. First, as they have done in the past, the state governors and courts should consider suspending these pending executions (Oklahoma has scheduled one on May 18) on their own authority out of deference to the ICJ opinion and maybe if President Bush (through the State Department) requests that they do so. Second, Congress could amend the federal statute in question to permit foreign nationals to raise such treaty
violations during habeas proceedings.

Of these two possibilities, the former is more likely (although far from certain). But all of these issues will likely be dealt with in the coming weeks because Oklahoma has set a May 18 execution date for one of the Mexican nationals covered by this ICJ judgment. My very able former colleagues at Debevoise & Plimpton in New York are probably preparing briefs and motions to file in the next few days.

I'm no expert on this subject, but Prof. Ku is, so I thought I'd pass along his thoughts.

Still more stuff that will prevent this blog from passing your web-filter: As if all Eugene's child-pornography posts weren't enough.

Both of the following via Radley Balko.

Someone has finally slipped down a slope that I've been mentioning (awkwardly) for a few years. A Georgia bill to ban female genital mutilation (already a federal crime, by the way, and I'd argue that the cases we really want to prevent could already be prosecuted as child abuse) has been amended to ban female (only) genital piercing.

The bill would make such mutilation punishable by two to 20 years in prison.... Amendment sponsor Rep. Bill Heath, R-Bremen, was slack-jawed when told after the vote that some adults seek the piercings.

"What? I've never seen such a thing," Heath said. "I, uh, I wouldn't approve of anyone doing it. I don't think that's an appropriate thing to be doing."

Between "slack-jawed," the obvious comic potential of "I've never seen such a thing," and the odd fact that he sponsored an amendment specifically about piercings without understanding that piercings are a consenting-adult kind of thing and not a screaming-Somali-child kind of thing this would almost appear to be a joke. I certainly think the AP reporter viewed it as such. But it's not.

Just so everyone's clear: the most common forms of female genital cutting are not morally, or physically, analogous to genital piercing. But, as I've discussed before, there's a form of cutting imprecisely referred to as "sunna circumcision" (though sometimes other things are called that, too) that involves making a single small incision on the clitoral hood. In both the U.S. and Italy, at least, there has been talk about doctors perfoming this procedure, in the hope that it would forestall the horrific infibulations and excisions that many of the girls in question will otherwise get; in both cases opponents have said that any form of female genital cutting should be off-limits. It seems to me that these incisions have to be on the same legal footing as piercings, and really ought to be on the same legal footing as male circumcision as well. In any event, it seems to me that any statute that forbids the incisions either has to forbid piercings as well (at least in the same age category), or is an illegitimate singling out of a practice just because of its cultural and religious meaning to those who practice it. The piercing amendment makes that fact apparent, but sometime someone was going to get prosecuted under one of these statutes for performing piercings.

As I read the federal statute, by the way, it properly prohibits infibulations and excisions but not incisions. But Patricia Schroeder, the author of the statute, has said otherwise.

Radley's other story: A Virginia woman is being prosecuted for the felony of "crimes against nature" for having received oral sex.

On Monday - under an agreement with prosecutors - the man pleaded guilty to the lesser charge of indecent exposure. The woman was offered the same plea, said Newport News Assistant Commonwealth's Attorney Jill Schmidtke. If convicted of the felony charge, the woman could face up to five years in jail.

But her attorney, David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can't regulate the sexual behavior of consenting adults in private.

As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.

Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee's motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial...

Schmidtke also said that the constitutionality of the statute "is a matter for the legislature."

Judge Sugg, of course, doesn't have to rule de novo on the constitutionality of the statute; that's already been done for him by the Supreme Court. He appears not to have gotten the memo. I'd like to have seen the complete Schmidtke quotation to know excatly what it is he said was a matter for the legislature. As the passage stands, he seems to lacka working familiarity with the whole concept of judicial review.

Crime and Federalism: I became a state court prosecutor for the Cook County State's Attorney's Office in Chicago after graduation from law school, rather than a federal prosecutor, because I cared about the most serious of real crimes with real victims: murder, rape, home invasions, armed robberies, etc. (While I am extremely proud of my service there and enjoyed it immeasurably, because of the war on drugs--which I consider to be highly unjust--I could not today in good conscience be a prosecutor of any kind, but instead would be a public defender.)

For a long time, however, there has developed the sentiment that we are not serious about an issue unless it has been made into a federal crime. Not only is this a bad idea from a law enforcement standpoint, this trend has serious constitutional difficulties. Now comes a new blog on Crime & Federalism to examine this development. Here is how it describes its scope:

The text of the Constitution limits Congress to its enumerated powers. "All legislative powers herein granted shall be vested in a Congress of the United States [ ]." Article I, §1. Contrast this language with Article II, §1 which says, "The executive Power shall be vested in a President of the United States of America." And Article III, §1, which states, "The judicial Power of the United States, shall be vested in one Supreme Court [ ]." Notice that only those legislative powers granted belong to Congress. This constitutional language was not accidental.

The Federalist Papers address the principle of enumerated powers. "[I]t is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects[ ]." The Federalist No. 41. The Federalist No. 45 famously states, "The powers delegated by the proposed Constitution to the Federal Government are few and defined."

We can count on one hand Congress' textual basis to define or punish crimes. Thus, "[t]he Congress shall have Power to declare the Punishment of Treason [ ]," Art. III, §3, the power to "define and punish Piracies and Felonies committed on the high seas and Offenses against the Law of Nations," Art. I, §8 Cl. 10, and "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States." Art. I, §8 Cl. 6. Today, however, the number of criminal statutes is almost inestimable.

According to a report of the American Bar Association, there are over 3,300 federal crimes. Federalization of Federal Criminal Law, Appendix C. These laws are interspersed in 50 titles of the United States Code. Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. Law. Rev. 46 (1998). Also, the violation of federal regulations is often made criminal: the ABA estimates that the violation of at least 10,000 regulations is a federal crime. Federalization of Federal Criminal Law at 10.

We used to be able to count on one hand when Congress could define or punish crimes. Now no one can know the extent of potential criminal liability under federal law. This blog will explore what happened.

Welcome to the blogosphere!

Child porn and pictures of naked kids: Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren't lewdly exhibited -- which probably refers to how they're likely to be seen by the typical observer, and not to the intentions of the minor -- presumably wouldn't be child pornography. (Conversely, a picture of a child who isn't nude, but that is focused on the child's genitals, may well be child pornography, see U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994).)

At the same time, what's lewd exhibition and what's not is in the eye of the beholder (cf. Tom Lehrer). Knox, for instance, applies a six-factor test:

1. whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2. whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
3. whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4. whether the child is fully or partially clothed, or nude;
5. whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6. whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Some pictures would clearly qualify, others would pretty clearly not, but quite a few will end up being in a very dangerous gray area. I suspect that in practice nudity will indeed be the most important factor for many prosecutors, judges, and jurors (though, I stress again, neither a necessary nor a sufficient one). So when in doubt, you might want to cut down on the nude pictures, especially once you're getting past the clearly socially well-accepted (e.g., the naked infant in the tub).

BedRoc: Marty Lederman (SCOTUSBlog) tries hard to make this Supreme Court decision interesting -- in my book, he succeeds, but I find all sorts of odd things interesting.

Sex and pictures of sex: A friend of mine sent me a message with the title "Child porn," and the body:

I've never sent an e-mail with such an explicit title before...

In most (all?) states, it's legal for a 16-year-old girl to have sex with her 16-year-old boyfriend. Thus, it's perfectly legal for them to see each other naked. But if he took a picture of her naked, would that be considered child pornography?

     Well, yes, that's right (except that 16-year-old/16-year-old sex isn't legal in all states -- check this this seemingly reliable, though questionably motivated, site). But I'm not sure that this is such an odd result. Allowing oneself to be photographed in a sexual situation poses, as many women have found to their chagrin, special risks of rather emotionally traumatizing humiliation. If I had a 16-year-old daughter, I wouldn't be wild about her having sex; but if she were doing so (and I realize that I'd have limited ability to stop her), I'd certainly advise her not to let her boyfriend take photos of them having sex. I'd advise my 24-year-old daughter of the same thing, but with the 16-year-old, I'd be more worried, because I think she'd be less likely to properly appreciate the dangers. And it makes sense that the law would help protect 16-year-olds against those dangers.

     Of course, sex poses much greater dangers, of death, unwanted pregnancy, and emotional trauma, not just of humiliation. If 16-year-olds are mature enough to have sex, why aren't they mature enough to agree to be photographed having sex?

     Well, I think it's a mistake to see the age of consent for such matters as purely a function of maturity. Rather, it's a function of both (1) the person's likely maturity, (2) the potential harm caused by the behavior (that's why the age of consent for drinking is higher than that for smoking), (3) the burden on the person caused by the prohibition (that's one reason why the driving age is lower than the drinking age), and (4) the likelihood that the law will be routinely flouted.

     Items 3 and 4 are, I think, why many states have an age of consent lower than 18. If sex was like smoking -- something potentially dangerous for yourself and likely for others, but potentially mildly pleasant and the sort of thing that people might want to start doing, though they wouldn't feel that strongly about it -- then we might well allow only adults to do it. If you can't buy cigarettes until 18, it's not like that's a huge burden. But restricting people's sexual relationships is likely to be felt as a much greater burden by most people than just restricting their ability to smoke, and it's a burden that people are especially likely to routinely resist. To observe this, ask yourself: What would be the likely social reaction, and the proper social reaction, to proposals to raise the age of consent for sex to 21, which is what it is for buying alcohol? Well, for the same reason, some states may resist raising the age of consent for sex even to 18.

     Allowing oneself to be photographed having sex falls much more into the category of smoking or chewing tobacco, I think, rather than having sex. It's not that great an interference with people's choices; and there aren't as many hormones and social pressures that will lead the ban to be routinely flouted. It's not irrational, then, to try to stop immature people from making such a decision, even when the law decides not to block such people's decision to have sex.

Child prosecuted for child pornography -- of herself: Michael Froomkin reports and comments, quoting this story:

State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.

Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms. . . .

She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography. . . .

     The girl's behavior is not good, for a variety of reasons. The knowledge that there are sexually explicit pictures of her out there may end up hurting her emotionally in the future, which is one reason that child porn is prohibited (though I suspect it would hurt her less than if someone else had taken the pictures -- sure, when she's 20 she might feel very differently about this than when she's 15, but I doubt that she'll be that traumatized by the knowledged that there are those sexual pictures of her out there). Also, her actions might end up getting otherwise innocent people in trouble, if she sent the pictures to people who weren't soliciting them. (If they did solicit them, it might still get them in trouble, but then they wouldn't be innocent people.) Possessing child pornography isn't quite a strict liability crime; if you accidentally get such a picture and promptly delete it, you shouldn't be legally liable. But given that deleting it will probably still leave traces of it on your computer, you could certainly end up appearing quite guilty.

     Nonetheless, it's not clear to me that prosecuting her -- especially for those crimes -- is the right solution to this, just as prosecuting sexually promiscuous 15-year-olds who have sex with adults for "aiding and abetting statutory rape" doesn't seem quite the right answer, either. If this is one of those scare-the-kid-a-bit prosecutions, that might be fine. But if the prosecutors are serious about throwing the book at her, and locking her up for years (the usual situation with people convicted of the crimes of which they're accusing her), then it hardly seems to be much of a service to her -- who is after all the supposed victim as well as the perpetrator -- or to the fight against child porn more broadly. Nor do I think that the potential harm to the innocent recipients, though potentially a serious consideration, would be quite enough justification for a full-bore prosecution (again, consider the analogy to the statutory rape scenario).

     In any case, though, it's an interesting and complex case, perhaps more complex than it at first appears. If anyone has more factual details that might shed light on the prosecutors' decision, I'd like to hear about them.

Heh. Y'know, this is made even better by the fact that it's Rhode Island, traditionally home to corruption in state and municipal government that could have kept a super-hero busy for years, and home to Buddy Cianci, who would have been vetoed as a crimelord-mayor villain by any comic book editor for being too unrealistic. (Registration required to follow the link.)

When the former [Rhode Island] attorney general, Sheldon Whitehouse, took office in 1999, he installed a bronze plaque outside 150 S. Main St. declaring: "I will not cease from mental fight. Nor shall my sword sleep in my hand. . . ."

The words are from one of Whitehouse's favorite poems -- written by the noted early 19th-century English poet William Blake.

[New Attorney General Patrick] Lynch, who took office last year, is now preparing to install a new plaque that declares: "With great power comes great responsibility." The words are from Stan Lee, the 20th-century American comic book pioneer who created Spider-Man.

Lynch said he was inspired by his 6-year-old son, Graham -- an avid Spider-Man fan who tugged on his father's pants and said those words moments before Lynch's inauguration in January 2003.
[...]
After deciding to go ahead with the Spider-Man plaque, Lynch hit the speakerphone, and as Healey and Lopes looked on, he called Marvel Comics. He said the discussion went something like this:

"Hi, I'm Patrick Lynch. I'm the attorney general of Rhode Island, and I have two questions probably best suited for your legal department."

"OK, hold a minute." Over the next 20 minutes, he said, he talked to six people before reaching a top lawyer in the company.

"Attorney General Lynch?"

"Yes."

"You really are the attorney general of Rhode Island?"

"Yes."

"Sir, I'm sorry but we have people call all day long saying they're the mayor of Metropolis or Gotham City." She said she'd done some checking while he was on hold to confirm his identity.

Lynch explained about his son and the challenges of his office and said he was hoping to get Marvel Comics' permission to use the quote. "To be candid," he said, "I'm going to do it anyway."

"Hold on, I'll check with Mr. Lee." When she came back on, she said, "Mr. Lee said that would be great."

Lynch's second question was who he should attribute the quote to -- Spider-Man? Stan Lee? Uncle Ben?

"Mr. Lee would like 'Stan Lee.' "

"Tell him 'Thank you' and, absolutely, that's what we'll put on the sign."

Just to do my alma mater proud, and to reinforce the (false!) image that people who read comics never read anything else, we've also got this:

Lynch said he's not going to get rid of Whitehouse's plaque. Rather, it will go on display in a boardroom that Lynch is dedicating to the history of the attorney general's office.

When asked to recite lines from Blake's poem, Lynch just shook his head. "I went to Brown [University]," he said. "I may have read Blake, but I can't recall if I did." Then he added, jokingly, "It might have been a morning after a frat party."

Providence is also home to the building (the Industrial National Bank) that served as the model for The Daily Planet building in the old George Reeves Superman television show, according to a disputed local legend.

Elsewhere in comics: Cerebus. Ah, yes, Cerebus. It's done now, in case you hadn't heard yet. See this Julian Sanchez post for a roundup, and for the following terrific Warren Ellis quote:

A testament to utter determination and vision. I mean, it pretty clearly drove the guy insane, but it's an astonishing achievement.

But of course, everyone who cares to know already knows that the comic is over, and that Dave Sim has been driven insane. I just wanted to point you to jaw-droppingly car-wreck-watching-fascinating funny-and-sad evidence of it. Belle Waring points to this Onion AV Club interview with Sim. I'll repeat here what I said in Belle's comment section: The surprisingly odd thing about the interview (as opposed to all of the odd things I've come to expect about Sim) was this:

He simultaneously wants to insist on the unparalleled artistic achievement he has just completed, the direct comparability of Cerebus to Metamorphosis or War and Peace or Crime and Punishment, and to keep talking about Cerebus as if it were merely an argument. Great literature usually has moral or ethical lessons to draw from it, and sometimes social and political analysis too. But it's never merely an argument. It seems to be Sim, not his critics, who can't separate the evaluation of his creative accomplishment from the agreement or disagreement with his ideas.

After you've read the interview, read (via Long Story, Short Pier) this account, by the reporter, of what it was like to arrange the interview in the first place, and this follow-up, which includes an extended bit not run in the actual interview-- Sim rewriting the interview (questions as well as answers) with himself in the role of Alex Trebek and the Onion in the role of a Jeopardy contestant.

As Belle says, "Did I mention he was crazy?

Was the Right to Bear Arms Conditioned on the Militia?: A new and improved version of my review essay, "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?" has been accepted by the Texas Law Review. Although it won't appear in print until December (at the earliest), you can read a pre-edited version now by downloading the file from the SSRN. Here is the abstract:

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.

Download it here. (If you read an earlier version of this paper, this one is much expanded and improved, with additional analysis and evidence.)

Why You Should Attend Cato University This Summer: For the past several years, I have lectured at the Cato University--a week-long feast of libertarian lectures and discussions in the most pleasing atmosphere of the Rancho Bernardo Inn near San Diego. This year the seminar conflicts with my annual lectures at the Europe and Liberty Seminars organized by the Institute for Economic Studies, which this summer will be held in Gummersbach, Germany (near Cologne) July 25-31.

Hopefully, I will be able to be there next year. But this year, as always, there is an excellent faculty and if you are inclined towards libertarian ideas, you should strongly consider attending. One of the greatest things about Cato University is that it is a mix of students, professionals, and retirees--all intellectually curious about liberty. There is no indoctrination, just stimulating lectures by faculty who do not always agree with each other. This is an opportunity that those who are not in academia rarely have--and students have access to perspectives that are not always available to them in their universities. High school students are also welcome.

You can apply for the seminar here. Scholarships are available for students (click here for application). Check it out.

Does sex sell?

"In an analysis of American box-office receipts for 250 movies released last year, the Christian Film & Television Commission (CFTVC) found that films that stressed "strong moral content" made an average $92,546,413 — six times the revenue of those that focused on "immoral, negative content."
Those movies brought in an average $14,626,234.
On a broader scope, the study also found that from 2000 to 2003, movies with "no nudity" brought in an average $137.8 million across the nation.
Films that depicted "full male and/or female nudity" in those same years brought in an average of $43 million, however."

OK, that is from a very conservative Christian group. And I can't find the data either. Still, if you think about it, neither Spiderman nor Frodo nor Harry Potter ever has sex on screen. So I doubt if the numbers are made up.

What are we to make of this? Michael Medved has argued for years that Hollywood has a left-wing, secular, 1960s bias, and could make more money with wholesomeness. Perhaps the moguls simply can't comprehend how such movies could be popular, just as they turned away Mel Gibson and made him finance Passion with his own money.

While some bias may be present, enough moviemakers are simply greedy. The study shows that many wholesome movies are in fact made and succeed financially. So if more wholesome movies would make more money, we would get them. They are not shut out of the market. So in financial terms I doubt if the bias can be a large one.

The more interesting economic question is why wholesome movies (read: children's movies, which I take to include young teenagers) hold a more concentrated market position. That is, they make a high average amount of money yet their success cannot be replicated easily by competitors. My best guess? Children want to see the same movie that their peers are seeing, which implies a concentration of returns. Yet their parents will only take them to the cinema so many times, which limits the number of movies in that market. Furthermore, these movies, which rely on focality, face especially high marketing costs.

The bottom line: Hollywood may indeed be a corrupt Babylon, but there is no easy way out of the box. There is only room for so many wholesome pictures in the market. Beyond this point, consumers demand sex and violence in their movies.

Shades of the sex education debate? From the Press-Enterprise:

Assemblyman Bob Dutton, R-Rancho Cucamonga, is pushing legislation meant to reduce accidental shootings by adding an optional firearms safety curriculum for the state's 6.1 million K-12 students. . . .

"Guns are just a fact of life," Dutton said. "I think it's really important for young people to understand how dangerous they are and what they should do if they come into contact with them." . . .

But some gun-control advocates question the wisdom of teaching students about firearm safety at a time when many schools have taken a zero-tolerance approach to guns.

"It would become a bit of a challenge if you mix the two. Our view is that guns have no place on a public school campus," said Ronald Stephens, executive director of the National School Safety Center near Los Angeles. . . .

Schools and school districts in California already have the right to teach gun safety if they choose. Dutton's bill is intended to create a uniform curriculum.

In Riverside County, Kraft's school district decided to use the NRA's Eddie Eagle gun-safety program in the late 1990s. However, the curriculum fell by the wayside amid growing demands on teachers' time from standardized tests on writing, reading and mathematics, said Kathy Wright, Alvord's assistant superintendent for student services.

Under Dutton's bill, the state Board of Education would develop the gun-safety curriculum. The lawmaker predicted that state officials would nix the idea of using real guns or replicas as part of the lessons -- something that is done in other states.

"It could be something like a field trip to a local police station," Dutton said. . . .

Fontana parent Sharon Allmond dismissed Dutton's bill as misguided.

"I think that's a parent's choice," Allmond said. "I don't think schools should be getting involved in teaching kids about gun safety." . . .

Thanks to Robert Butchko for the pointer.

Public housing residents and the right to keep and bear arms: By the way, my quick NEXIS search didn't find any newspaper articles, even in Michigan papers, discussing the constitutional case mentioned below. Seems like a shame to me. This is an important issue, which raises all sorts of basic social and legal questions: the rights of the poor, the power of the government, courts' obligations to take seriously even those constitutional rights they disagree with, and so on. Sounds at least like fodder for an op-ed, either in a Michigan paper or elsewhere, though I wish that the local papers also covered it as a news story.

"Romanian villagers decry police investigation into vampire slaying." No, I don't think it's a joke.

Toma Petre's relatives pulled his body from the grave, ripped out his heart, burned it to ashes, mixed it with water and drank it . . . .

Villagers here aren't up in arms about the undead -- they're pretty common -- but they are outraged that the police are involved in a simple vampire slaying. . . .

"What did we do?" pleaded Flora Marinescu, Petre's sister and the wife of the man accused of re-killing him. "If they're right, he was already dead. If we're right, we killed a vampire and saved three lives. . . . . Is that so wrong?"

UPDATE: Marty Lederman (SCOTUSBlog) links this story to a passage in today's Supreme Court decision in National Archives and Records Administration v. Favish:

Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851 (15th ed. 1985) (noting that "[t]he ritual burial of the dead" has been practiced "from the very dawn of human culture and . . . in most parts of the world"); 5 Encyclopedia of Religion 450 (1987) ("[F]uneral rites . . . are the conscious cultural forms of one of our most ancient, universal, and unconscious impulses"). They are a sign of the respect a society shows for the deceased and for the surviving family members. The power of Sophocles' story in Antigone maintains its hold to this day because of the universal acceptance of the heroine's right to insist on respect for the body of her brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255 (C. Eliot ed. 1909). The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is but a modern instance of the same understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.

But which way does that cut -- against those who would disturb the dead man's grave? Or in favor of treating it as "the rites and respect they seek to accord to the deceased person" (well, respect of a sort)?

FURTHER UPDATE: Reader Eric Stone writes:

I think the Supreme Court is saying that it's acceptable for family members to slay vampires, if they use a personal stake.

Nigeria meets Three Kings: The latest scam spam I've gotten, and the first that has an Iraq war connection:

FROM CAPT DESMOND ANDREWBAGHDAD
IRAQUE

"We are urgently seeking for your willingness to secure the below
consignment as shown in the attached photos!
"The consignment was captured here in Baghdad, abandoned in one of the
Saddam Hussein's Treasure House. However, the contents of the box are
huge amount of funds in the sealed box. We were able to count the content and discovered that it contains about $15,000,000 u s d (Fifteen million united state of America dollars). Due to the ruggedness of our mission we could not take this box along with us but we were able to contact a shipping and security company based in Europe that has helped us ship this consignment out of Iraq without letting them know the content "At moment, this consignment of money is outside Iraq for safekeeping
on our behalf but due to law and restriction order, we are unable to have these money for our private use. We hereby seek for your assistance to receive the
box in Europe.
"We are offering you 25 per cent of the entire money either in cash.
Therefore, we will appreciate your effort to get back to us via email confirming
your interest to assist us receive the consignment.REPLY TO= [email protected] "As soon as we receive your positive reply, we shall furnish you with further
details.
"Please, note, this issue must be handled with utmost confidentiality as to avoid
publicity!
"Yours truly.
Capt. DESMOMND .A (Team Leader

I guess it was just a matter of time.

Can public housing residents be denied the right to keep and bear arms: A week ago, in Lincoln Park Housing Comm'n v. Andrew, the Michigan Court of Appeals held that a public housing agency may bar its tenants from possessing guns. The public housing agency, though, is governed by the Michigan Constitution of 1963, article 1, section 6 of which says "Every person has a right to keep and bear arms for the defense of himself and the state."

The court dealt with the right to keep and bear arms by reasoning that:

While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that 'the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power.' The state has a legitimate interest in limiting access to weapons.

It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.

     This analysis, I think, can't be right: Under this reasoning the government could equally entirely ban all guns, since the government has a compelling interest in maintaining a safe environment for everyone, and since the court seems willing to defer to the government's assertion that banning guns is a reasonable means of serving that interest. But surely a court can't simply negate a constitutionally secured right, not just in its peripheral or unusual applications, but in its very core, simply by reasoning that the right is dangerous. Presumably the right's presence in the state bill of rights represents a constitutional judgment that every person has a right to keep and bear arms for the defense of himself (or, in this case, herself) despite the arguments (familiar in 1963 as they are today) that banning guns is needed to "maintain[] a safe environment."

     The tougher question, it seems to me, is whether the government acting in its capacity as landlord has the power to completely prohibit the exercise of this constitutional right, as a condition of using government property. This is the issue that arises when the government tries to insist that tenants waive their Fourth Amendment rights, see the controversial decision in Pratt v. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994) (holding such a waiver requirement to be unconstitutional, despite its seeming popularity with most tenants), or perhaps that they not live with relatives (such as grandkids) other than their parents, spouses, and children (a condition that the Court struck down when imposed by the government as to private property). The Michigan court pointed, in another section of the opinion, to cases in which "evictions by public housing authorities have been upheld as not violative of the right of free association when such actions by the housing association was part of their efforts to control crime." But as I read these cases, they simply concluded that the right of association wasn't sufficiently burdened when tenants are evicted for not taking sufficient steps to prevent their guests and apartment-mates from committing crimes -- the cases didn't allow categorical prohibitions on intimate association, so I'm not sure they're an adequate precedent for upholding a categorical prohibition on the exercise of a constitutional right here.

     This, of course, is another aspect of the perennial "unconstitutional conditions" problem, which asks when the government may insist that people waive their constitutional rights as a condition of using government property or some government benefit -- a very important question in a country where governments at all levels take and then redistribute 25-30% of the GNP, and control a vast range of property that most people have to use. It's an unusual and particularly interesting aspect, though, especially since it cuts a bit across political lines: The right to bear arms is generally most supported by conservatives and libertarians, while restrictions on the government's power to attach conditions to its property are generally most supported by liberals.

     Incidentally, since forty-four of the 50 states have right to bear arms provisions in their state bills of rights, this issue will remain regardless of the outcome of the Second Amendment debates.

UPDATE: A couple of people have suggested that the government's power here is similar to the government's power to restrict guns in courthouses, airports, schools, and the like. I don't think that's quite right.

     First, state courts interpreting right to bear arms provisions have distinguished the ability to have a gun at home from the ability to have it outside the home. I think that's generally a mistake (except when the text of the constitutional provision provides for greater regulation of "wearing" or carrying guns, which generally does refer to carrying them outside the home). When the provision affirms our right to defend ourselves using guns, it should generally (perhaps with some exceptions, but generally) apply to defending ourselves wherever we are in danger, whether that's in the home or outside the home. But I do agree that the provision certainly does apply, at least and especially, to defending yourself in your own home. Stopping you from defending yourself in public places interferes with your right to bear arms -- but stopping you from defending yourself even at home interferes with it even more. And your apartment in a public housing complex is your home, where an airport or a courthouse is not (even for those who spend as much time in the office as Judge Kozinski's clerks do).

     Second, at least in courthouses and in airports, the government can credibly claim that the risk of criminal attack -- the main thing from which you have a right to defend yourself -- is considerably less, because the government does indeed police those places pretty well (not perfectly, but much better than most other places). One could plausibly argue that therefore the right is weaker in those places as well. Again, though, one surely can't make the same argument as to public housing.

     So even if the government has the power to restrict guns in public places (whether publicly owned or privately owned -- some state laws, for instance, ban the possession of guns in places where alcohol is served), and even if the government should have the power to restrict guns in at least some public places, people's apartments in government-run housing complexes seem to be a very different matter.

Precedents: Apropos the "Rice will testify, but only on condition that the commission agrees that it won't set a precedent" deal, Tom Grey writes (without expressing any opinion on the underlying merits of the executive privilege dispute):

As one of my colleagues [Bill Cohen] says in faculty meetings, whenever this gambit is tried: "This won't set a precedent -- and anyway, we've done it before."

Spring is here, spring is here. I confess it seems odd to me to have the season opener played in Japan. But I'll take my opening day Yankess losses any way I can get them.

"The Brethren (and Sistren)": Lawprof Eric Muller (IsThatLegal?) writes:

Last week, two of the five justices on the Wyoming Supreme Court were brother and sister: Justice Marilyn Kite and her brother Judge Ken Stebner. (Stebner is a trial judge who was sitting on the Supreme Court for a few days by designation.)

Inquiring minds want to know: is this the first time that brother and sister have sat on the same appellate panel?

We do indeed. Please e-mail responses, if you have them, to isthatlegal-at-bellsouth-dot-net.

Very sad news: The eminent legal philosopher Joel Feinberg, Regents Professor of Philosophy and Law Emeritus at the University of Arizona and author of some of the most powerful and complete articulations and defenses of legal anti-moralism and anti-paternalism, has died. Chris Maloney has circulated the following note:

Friends, I regret to inform you that Regents Professor of Philosophy and Law (Emeritus) Joel Feinberg died today, March 29, in Tucson following a long illness.

Professor Feinberg retired from the University of Arizona Philosophy Department in 1994 after 17 on the faculy. Prior to his appointment at Arizona, Professor Feinberg taught at Brown University, Princeton University, UCLA and Rockefeller University. He held the B.A., M.A. and Ph.D. from the University of Michigan.

Professor Feinberg was internationally distinguished for his research in moral, social and legal philosophy. His major four volume work, *The Moral Limits of Criminal Law,* was published between 1984 and 1988. Professor Feinberg held many major fellowships during his career and lectured by invitation at universities around the world. He was an esteemed and highly successful teacher, and many of his students are now prominent scholars and professors at universities across the country.

Professor Feinberg is survived by his wife, Betty, daughter, Melissa, and son, Ben. The family is planning a memorial to be held later this week on a date to be determined.

Professor Jules Coleman of Yale University is presently composing a proper professional obituary for Professor Feinberg.

You are welcomed to forward this message to others.

Blogospheric consolidation continues: An already-excellent group-blog just got even better. John Holbo and Belle Waring are joining Crooked Timber, which should bring their blogging to the wider audience it deserves.

By my count this brings Crooked Timber's roster to 15, one more than the Conspiracy's.

UPDATE: Kieran Healey takes the "roster" thought one step further...

High utility bill leads to search of house? Reader Michelle Dulak pointed me to this story:

A family whose high electric bill sent police on a futile hunt for indoor marijuana cultivation at their Carlsbad home is asking for an apology in writing.

The raid at the Ivy Street home of Beryl and Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people.

Officers, however, found nothing to link the family to illegal drug activity during the search at the Dagys' house, and they apologized to the Dagys at the time, Carlsbad police said Wednesday. . . .

This does sound troubling, even, I suspect, to those who see marijuana growing as a very serious crime. Note, though, that -- as is often the case in such stories -- there was at least some other evidence supporting the search warrant, though the story saves it for the second to last paragraph:

Dagy said the only reasons the agents gave her for the raid were the high electrical bills and the fact that a drug-sniffing dog had alerted at the home before the raid.

So we have abnormally high electrical bills ("1,161 kilowatts for January and 1,584 for February . . . the highest figure for the other four homes on the block was 467 for January and 462 for February"), plus the drug-sniffing dog seemingly confirming the likely presence of marijuana. Neither of these is by any means dispositive, and even together they aren't enough to prove guilt beyond a reasonable doubt. But of course the standard for getting a search warrant isn't proof beyond a reasonable doubt; it's probable cause, which is necessarily a much lower threshold.

     Apparently, the data that the police were using was indeed pretty reliable: "Dina Dagy was one of 25 conducted Friday in North County and San Diego after a six-month investigation by the San Diego Integrated Narcotic Task Force into marijuana being grown in rented homes. Agents found marijuana in 20 of the raids and arrested 24 people." Probable cause is to be determined from the perspective of what the police knew beforehand, not based on the results of the search. Still, when you have this many data points, this tells us something about the ex ante probabilities, and it looks like the police methods are finding the right targets with 80% confidence. That's more than plenty for probable cause, it seems to me.

     I sympathize with the Dagys; but the "probable cause" standard means that the Fourth Amendment tolerates a considerable number of false positives when it comes to searches and arrests. "Beyond a reasonable doubt" might mean something vaguely like "better that twenty guilty people go free than one innocent person go to jail." But the probable cause standard (probably more like 30-50% confidence than 95% confidence) is much more forgiving -- it might be more like "better that one, or even a few, innocent people get erroneously searched than one guilty person go free" (recognizing that such formulations are always highly imprecise).

     Again, if you think that marijuana growing shouldn't be a crime at all, then such searches are obviously unjustified on those grounds. Likewise, if you think that it's only a very minor offense, given the intrusiveness of this sort of search. But our legal system, reflecting what I suspect is the view of the majority, takes the view that marijuana cultivation is indeed a fairly serious crime. And if that's so, then these sorts of searches, even based on foreseeably imperfect evidence, are quite permissible.

UPDATE: Reader Curt Wilson asks a follow-up question:

[W]hat procedures police need to go through to look at utility bills? Are these just considered public domain, or are there privacy issues here? Wouldn't they need some kind of warrant just to get that information?

Under the Supreme Court's Fourth Amendment cases, the police may get such information just through a subpoena to a utility company (or perhaps even just by asking the utility company), with no need for a warrant or probable cause. The utility company is treated like any other witness who may have relevant information in his possession: The government may subpoena the witness to get this information whenever there's some reason to think that the subpoena will yield relevant (even indirectly relevant) information; it may also ask the witness to voluntarily turn over this information. Probable cause is not required.

This is very odd. In this week's Chronicle (subscription may be required, I'm not sure) Alan Wolfe documents the fascination of the contemporary intellectual left with the Nazi political philosopher Carl Schmitt. He notes, accurately, that in the wake of Communism's collapse some on the radical left "developed a fascination with neofascist thinkers and movements in Italy, as if to proclaim that anything would be better than Marx's contemporary, John Stuart Mill, and his contemporaries." He further notes, again accurately, that this widespread attraction to Schmitt's antiliberalism on the left is not mirrored on the right, that "right-wing Schmittians" are limited to some very marginal paleocons; "there are, I venture to say, no seminars on Schmitt taking place anywehere in the Republican Party and, even if any important conservative political activists have heard of Schmitt, which is unlikely, they would surely distance themselves from his totalitarian sympathies."

So far so good. We're at the bottom of column two of a six-column article, and I think everything so far has been just right.

And then the following four columns are about how the Republican right is Schmittian; "Conservatives have absorbed Schmitt's conception of politics much more thoroughly than liberals." Ann Coulter is exhibits a, b, c, and d; she and Bill O'Reilly are contrasted with "say, a hopeless liberal like Alan Wolfe," rather than with their genuine counterparts in the popular-press left.

The following is offered, with no evidence or support whatsoever.

Liberals think of politics as a means; conservatives as an end. Politics, for liberals, stops at the water's edge; for conservatives, politics never stops. Liberals think of conservatives as potential future allies; conservatives treat liberals as unworthy of recognition. Liberals believe that policies ought to be judged against an independent ideal such as human welfare or the greatest good for the greatest number; conservatives evaluate policies by whether they advance their conservative causes. Liberals instinctively want to dampen passions; conservatives are bent on inflaming them. Liberals think there is a third way between liberalism and conservatism; conservatives believe that anyone who is not a conservative is a liberal. Liberals want to put boundaries on the political by claiming that individuals have certain rights that no government can take away; conservatives argue that in cases of emergency -- conservatives always find cases of emergency -- the reach and capacity of the state cannot be challenged.

Other than Coulter and O'Reilly, exactly all of the examples from contemporary politics are in the following jaw-dropping passage:

From the 2000 presidential election to Congressional redistricting in Texas to the methods used to pass Medicare reform, conservatives like Tom DeLay and Karl Rove have indeed triumphed because they have left the impression that nothing will stop them. Liberals cannot do that. There is, for liberals, always something as important, if not more important, than victory, whether it be procedural integrity, historical precedent, or consequences for future generations.

Now, I loathe Rove's influence on politics as much as the next guy. And maybe, on balance, Rove and DeLay are worse than James Carville, Paul Begala, Bill Clinton at his worst "We'll just have to win, then" moments, Hillary "VRWC" Rodham Clinton, Ted "Robert Bork's America" Kennedy, George Mitchell, or Tom Daschle (to say nothing of the Al Sharptons or Michael Moores of the world). But Wolfe doesn't give us any reason to think so; he's named a few right-wingers, and on the liberal left... himself. He hasn't compared likes, or looked at the evidence for friend-enemy politics on the left, or asked whether any conservatives view anything as more important than victory ("I'd rather be right than be President"-- Calvin Coolidge [UPDATE: I'd always heard this attributed to Coolidge, but a couple of people have e-mailed to say that it was Henry Clay]), or asked whether there are left-liberals for whom that's not true.

There is an unfortunate selection effect in electoral politics: those who care about nothing else more than winning-- on both sides-- tend to have at least some competitive advantages (though these aren't boundless, because being principled is part of how one gets a highly-motivated base of support). There's a particular premium on victory-above-all consultants; consultants, like lawyers in an adversarial trial process, are hired for their skill in getting their side to win. But deciding whether "liberals" as such are less Schmittian, less prone to view political contests as apocalyptic and existential conflicts, than "conservatives" as such would presumably require comparing consultants to consultants, intellectuals to intellectuals, elected officials to elected officials, and popular demagogues to popular demagogues.

Wolfe closes with this:

No wonder the 2004 election has aroused so much interest. We will, if Schmitt is any guide, be deciding not only who wins, but whether we will treat pluralism as good, disagreement as virtuous, politics as rule bound, fairness as possible, opposition as necessary, and government as limited.

Surely this is friend-enemy politics posing as an opposition to it. It is Wolfe who sees this election as an apocalyptic contest between liberal democracy and its opponents rather than a competition between two legitimately opposed parties in an ongoing contestatory system.

No, not patent: An L.A. Times editorial says:

So Donald Trump wants to patent the expression "You're fired." . . . Maybe he's serious about the trademark so he can sell "You're Fired!" T-shirts and gambling machines; of course, not having such a patent wouldn't stop him either.

Maybe, just maybe (we're only suggesting here) the patent filing and word of it happening to slip out somehow late one recent week had something to do with "you're fired" being the unregistered trademark phrase of Trump's popular Thursday NBC television show, whose name escapes us at the moment. Trump couldn't buy -- well, maybe he could -- the publicity generated by such a dubious patent filing. . . .

It was no gamble to predict that a pioneer of patent patent publicity ploys would be what's-his-name on that what's-it-called NBC show.

A trademark is not a patent. Trademark protection is available for very different things, and provides a very different sort of protection than patent law. This doesn't affect the substance of the editorial, and only slightly affects its tone (since most readers probably also don't distinguish trademarks and patents, they're not going to see "patent" as carrying any different connotation from "trademark"). But it would be nice if newspapers were a bit more accurate in such matters. Thanks to intellectual property lawyer (and my former boss) Bruce Wessel for the pointer.

"Protective sweep" home search case: There's a helpful summary, with some criticism, by Ken Lammers (CrimLaw).

"Hostile Environment" Blowback: A few weeks ago, as part of a lecture on academic freedom at Emory University, I noted that censorious campus feminists have been the leading force behind campus speech restrictions masquerading as "hostile environment" rules, and stated the following:

One does not need much of an imagination to come up with examples of how antidiscrimination law could be used to silence left-wing academics....

Consider how the concept of "hostile educational environment" could be applied to Women's Studies classes taught by radical feminists. Students from traditional, white middle-American Christian backgrounds are often told that they are inherently racists, that the traditional religious values that they grew up on are reactionary principles that serve to support an oppressive patriarchy, and, that if they are men, that much of the sex that have or will engage in amounts to rape.

Just recently, a student at Univeristy of North Carolina expressed religious objections to homosexual conduct and criticized homosexuality as "disgusting" in class. His professor sent out an email to the entire class lambasting this student:
what we experienced, as unforunate as it is, is, however, a perfect example of privilege. that a white, heterosexual, christian male, one who vehemently denied his privilege last week insisting that he earned all he has, can feel entitled to make violent, heterosexist comments and not feel marked or threatened or vulnerable is what privilege makes possible.

The chairman of this professor's department was notified of this ill-tempered outburst, and under pressure from him, she apologized. That's all appropriate; professors shouldn't be singling out students in vituperative emails. But what if this student filed a "hostile environment" complaint against his professor for creating a hostile environment for him as a Christian, and perhaps as a white male? Isn't it clear he would have a good case? And wouldn't his winning such a case have a chilling effect on what other feminist professors say in class, even if they say it in a more moderate and appropriate way?

Even the weakest discrimination complaints can lead, at a minimum, to a mandatory investigation by the Department of Education. Internal university investigations and, most chillingly, lawsuits against both universities and feminist professors as individuals for promoting and tolerating hostile environments for Christian students are other things that one could look forward to if academic freedom is weakened. Conservative Christian groups seem to have not yet realized the weapon they have in their hands, but they undoubtedly will.

Now comes word, via John Rosenberg, that the University of North Carolina professor in question, Elyse Crystall, is, along with UNC, being investigated by the Department of Education for violating federal civil rights law by creating a hostile environment for white, male, Christian students. A conservative Republican Congressman, Rep. Walter Jones, helped instigate the investigation. I predict that this will not be the last we hear of hostile environment blowback. As I wrote in You Can't Say That!, the fact that radical feminists and criticical race theorists living "in a society that has long been, and continues to be, hostile to their ideology would want to weaken the principle that government may not suppress expression because of hostility to its viewpoint seems counterintuitive and shortsighted, to say the least."

Related Posts (on one page):

Department of Education letter to University of North Carolina:
Hostile Environment Blowback Update:
"Hostile Environment" Blowback:

Keeping Junk Science Out of the Asbestos Litigation: My paper with this title, part of a Pepperdine Law Review Symposium on asbestos litigation, has been posted at SSRN.

Further reading: Some months ago, Lawrence Solum's Legal Theory Bookworm recommendation was Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law.

This volume articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples", human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "the national interest". He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it.

This was a book I'd been waiting to see for a long time-- a book that started as a follow-up to Buchanan's renowned work on secession but grew into a broader statement about international law and normative theory. But I had to wait a while longer; Solum's recommendation preceded the release of the book to the general public.

Anyway, as of last week, it's finally out. I'm a couple of chapters in, and it's a very good, very important work, just as Solum said. Buchanan maintains the line between positive and normative, and that between philosophy and law, much more carefully defined than is often the case in works on international law, thereby allowing himself full use of the resources of normative philosophy to talk about international legal systems and institutions.

Corporate law aids: This is not my field, but I sent this set of blog references along to my lawyer wife. (Mainly I wanted to show her that blogging and reading blogs isn't a waste of time.) Why shouldn't you get the material too? The links help lawyers keep current with the field of corporate law and SEC decision-making. Here are some more general links on related topics. Thanks to ProfessorBainbridge for the pointer.

A friend of Kafka: Franz Kafka has a couple of nice short "stories" about the law. The most famous one, "Before the Law," which I may post one day, is from the novel The Trial, which of course is all about the law; but here's another one, called "The New Attorney."

We have a new attorney, Dr. Bucephalus. Little in his external appearance reminds one of the time when he was still Alexander of Macedon's battle steed. But those who are familiar with the circumstances notice certain things. Indeed, I recently saw, on the outside staircase, even a quite simple court employee admire the attorney with the professional look of a modest regular of the races as, lifting his thighs high, he went up from step to step, his footfalls ringing out on the marble.

In general the bar approves of the admission of Bucephalus. With amazing understanding they tell themselves that Bucephalus is in a difficult position in today's social order and that therefore, as well as because of his world-historical significance, he deserves some accommodation anyway. Today -- no one can deny it -- there is no great Alexander. Yes, many people try to murder; also there is no lack of people with the skill to strike their friend over the banquet table with a spear; and many find Macedonia too cramped, so that they curse Philip, the father -- but no one, no one can lead to India. Even back then, the gates to India were unreachable, but the king's sword showed the way. Today the gates are elsewhere entirely and further and higher; no one shows the way; many have swords, but only to wave them about; and the gaze that wants to follow them gets tangled up.

So maybe it's really best, as Bucephalus has done, to sink into law books. Free, his sides unvexed by the loins of the rider, by a quiet lamp, far from the racket of Alexander's battles, he reads and turns the pages of our old books.

(Here's another translation, and here's one in Russian!. I'm not the only lawyer to like this.)

As Usual, lots of inane (but often victorious) lawsuits to make your blood boil at Overlawyered.com.

Speech in government-owned stadiums: ESPN reports that UMD may ban "vulgarities" said by fans in its stadium. I think that would be constitutionally permissible, and here's why.

Vulgarities are generally protected by the First Amendment, unless they fit within the fighting words exception (which usually covers only face-to-face insults that have a tendency to start an immediate fight). You can't be sent to jail for them, or sued for them. The government can't use its sovereign power to punish you for them.

But when the government owns certain property, it may have extra power as landowner to restrict speech on that property, even if it lacks the power as sovereign to restrict the speech in other places. The key word here is "may"; sometimes the government has this extra power, and sometimes it doesn't. The exact rules depend on the nature of the government property. For these purposes, government property can be divided into four categories for First Amendment purposes (actually, there are more, such as K-12 schools, prisons, etc., but I set that aside for now):

Traditional public fora covers sidewalks, parks, and streets. In such fora, the government gets no extra power from its status as landowner. Either the speech is within one of the First Amendment exceptions (for instance, because it's incitement, false statement, etc.), in which case it can be punished; or, if it's outside the exceptions, then the government can't ban it from traditional public fora.

Designated public fora covers property that the government has opened up for members of the public (either all members or some subset) to express their own views (either on all subjects or on some subject). A classic example of this is university classrooms that aren't being used, and that many public universities open up for student groups to use. Here, the government can limit the use by subject matter, for instance to curriculum-related speech, or to speech only about science, or some such. But once the speech fits within the forum's designation -- for instance, it is indeed curriculum-related speech by a student group, which is what the forum was opened for -- then the rule is the same as in traditional public fora.

Nonpublic fora are other government property onto which members of the public can go, but which aren't intended by the government as places for the public to express itself. A classic example would be the hallways of a government building, or the passageways of a government-run airport. A government-run stadium would also qualify. Here the government may impose reasonable, viewpoint-neutral speech restrictions. Unlike in traditional public fora, the restrictions may be content-based, so long as they're viewpoint-neutral.

Government property that the government is using for its own speech -- for instance, a billboard being used to convey the government's message, or a government-run newspaper or TV station -- is not a forum at all. Here, the government may control the speech even based on its viewpoint, since the property is supposed to be used for the government's own views, not contrary views.

This is of course a huge oversimplification. I teach a 50-hour class on First Amendment law, and even that is an oversimplification -- don't ask me for a complete set of rules in several paragraphs. Still, I hope it captures the basic principles adequately for our purposes.

As I mentioned, it looks like a stadium is probably a nonpublic forum. That means that the government can impose a viewpoint-neutral ban on vulgarities (such a ban would, I think, easily pass the reasonableness requirement). Much depends on the details of how "vulgarity" is defined; but if it basically means profanities and personal insults, then it should probably be fine. And while any likely definition of vulgarity would necessarily be somewhat vague, I suspect that courts wouldn't find that to be too much of a problem, especially when the only thing that's at stake is eviction from a nonpublic forum, rather than criminal prosecution.

But if anyone can e-mail me the text of the proposed policy, I'd be glad to look at it more closely and see whether it indeed seems viewpoint-neutral.

Continental Airlines Participating in Israel Boycott: Continental Airlines has very good relations with Israel, flying direct from Newark to Tel Aviv. So I was pretty surprised to find out that Continental is agreeing to the demands of certain Arab countries that it prohibit flight attendants from working military charters if they have Israeli stamps on their passports, as detailed in the following memo, passed along by a friend:

Date: March 26, 2004
Subject: Select Military Charters Requiring U.S. Passport Holders Only
From: Inflight Policies and Procedures
To: All Flight Attendants

--------------------------------------------------------------------------------

All flight attendants operating military charters into select Middle Eastern and Central Asian countries must carry a valid U.S. passport. Additionally, U.S. passport holders with Israeli stamps in their passports are not permitted to operate these military charters. Non-compliance will result in crewmember removal.

The U.S. Military allows for any crewmember of Continental Airlines to operate a military charter, however each individual country has specific entry requirements to which we must adhere. Effective immediately, any crewmember operating a military charter to the below mentioned countries is required to be a U.S. passport holder with no Israeli stamp(s) in his/her passport. It is each crewmember's responsibility to know to which country a charter operates when picking up a charter pairing. Passports will be verified at check-in. Any flight attendant who does not meet the aforementioned requirements will be removed from the pairing.

Sample of an Israeli Passport Stamp

Current countries/regions affected include, but are not limited to:

Turkey

Kuwait

Saudi Arabia

Bahrain

Kyrgyzstan

Prior to operating any military charter, verify the following:

Your passport is valid and in your possession

Your APIS information is correct and current in CCS

You are a U.S. passport holder with no Israeli stamps in your passport, if your trip includes flights to any of the above countries

Compliance with the above guidelines is imperative in order to avoid delays, flight attendant removal, or possible flight attendant detainment in a foreign country.

--------------------------------------------------------------------------------------------------------
Does anyone with expertise in the area know if Continental is violating the law banning American companies from cooperating with the Arab boycott of Israel? And since these are military charter flights, is the U.S. government going to tolerate this policy?

UPDATE: Why is Turkey on this list? I don't know. Turkey certainly has warm military, commercial, and tourism-related ties to Israel. My guess is that Continental probably just has flight attendants sign up to do these flights, and then calls them when they need them, and wants whoever is "on call" to be available for any of these flights. Or it could just be incompetence on someone's part. And, for those who have inquired, yes, I'm sure this is not a hoax.

Rockin' Book Tour This Week: I really enjoyed my visit last week to Nebraska, Michigan, Indiana and St. Louis. I have really enjoyed meeting Volokh Conspiracy readers pretty much every where I have spoken, especially those who traveled way out of their way. Last Monday, an architect drove from Omaha to Lincoln and, on Thursday, a judge drove from Lafayette to Bloomington to hear the talk. It was a great pleasure to meet them and the others who have introduced themselves to me.

This week's Restoring the Lost Constitution book tour takes me to New Haven, Athens, Atlanta & Tallahassee:

New Haven
Monday 3/29: TODAY
Yale Law School (12:30pm, seminar room 109)
Athens, Georgia
Tuesday 3/30
Georgia (3:30pm, Room A on the first floor of the law school)
Atlanta, Georgia
Wednesday 3/31:
Georgia State law school(lunch)
Emory law school (3:15pm)
Tallahassee, Florida
Thursday 4/1:
Florida State University law school (12:30pm, D'Alemberte Rotunda)

NEXT WEEK: Phoenix, Arizona to speak at the Goldwater Institute and ASU.
Full tour schedule is here.

Don't buy too much art!

"Charles Saatchi, by far the most influential figure on the contemporary British art scene, has been reported to the Office of Fair Trading (OFT) for allegedly monopolising the art market.

Charles Thomson, a gallery owner who has made it his mission to burst the BritArt bubble, has now taken the extraordinary step of submitting a formal complaint to the OFT. He claims that Mr Saatchi's pre-eminent commercial position as the key patron of dozens of young artists is monopolistic and anti-competitive.

Mr Thomson's attack comes in the form of a five-page letter, delivered to the OFT late last week, in which he alleges that Mr Saatchi, the man who "made" conceptual artists such as Damien Hirst, Tracey Emin and Jake and Dinos Chapman, "abuses" his position "to the commercial detriment of smaller competitors"."

It is stories like this that might someday drive me to Ayn Rand. Do I even need to add that the activity "buying art" is open to anyone with the dollars? Here is the full story.

Digital restitution?

"One of the greatest artworks of all time is scattered in fragments across Europe. But there is now a way to view the surviving Parthenon sculptures together for the first time - a virtual reconstruction.

They're still magnificent nearly 2,500 years after being carved, but the sculptures of the Parthenon are a bit like sad ghosts - pale, battered, half-lost and spread far and wide.

The fragments are strewn across 10 museums in eight countries. The Greeks are keen to reunite these in a purpose-built museum within sight of the ruined temple the frieze once adorned.

But the British Museum, the guardian of the Elgin Marbles - which were cut from the Parthenon 200 years ago - is reluctant to let its prized possession go. Its argument goes that half the Parthenon sculptures are lost forever, and the rest are so scattered and damaged that it is no longer possible to recreate them in any real sense. A better solution is a computer reconstruction, which will give a more complete sense of how the whole might once have looked.

The University of Southern California's Institute for Creative Technologies is at work on just such as project. It has produced 152 high-resolution models of the sculptures, and produced images which show each in its original position."

Here is one relevant article, here is another. Here is a more general piece, from 2Blowhards.com, on the "digitification" of culture.

My view: No, I don't expect this to make the Greeks happy. But in reality this endeavor is more important than whether the Greeks ever get the Elgin marbles back. Many arguments for restitution in fact imply that the artwork itself, and its preservation, should be the priority. Other arguments for restitution toss art to the side in favor of naked political calculations. These arguments are rarely voiced in public, which suggests their unpalatibility. Still, when it comes to the marbles case, this is probably what is going on. By the way, it remains to be seen whether the Greek Ministry of Culture will cooperate with the digital endeavor. The Greeks are asking that the marbles be "lent" to them. The British, who understand the concept of a threat point in a game, are refusing.

I remain on the road, which limits my writing, reading, and thinking. I remain struck by how many used book and antique shops can survive in high-rent districts in Paris.

Iraqi book project: The estimable Tom Palmer, who used to do similar work in Eastern Europe, is working on providing both English and (later) Arabic copies of major works of liberal thought to Iraqi universities and libraries. It's an important enterprise and deserves lots of help; details are here.

"Protective sweep" searches of homes without warrants or probable cause: Here's the Fifth Circuit decision approving of such searches. A bunch of people e-mailed me about this -- it's worth a read, and laypeople should find it quite readable (though not short). I think the dissents are ultimately more persuasive than the majority, but I probably won't have a chance to blog more about the reasons: I'm swamped right now with a couple of writing projects; the legal issue is fairly complex and would thus take some time to explain well; and because it isn't my core area, I don't have the quick familiarity with all the issues that would let me comment quickly and clearly. Still, it is an important question, and worth watching. I think the Supreme Court ought to grant certiorari on this, but I'm not sure whether there's a circuit split on the question, and I doubt that the Justices will agree to hear the issue unless there is a split.

Partisan Blamemongering Over 9-11: Some perspective from Daniel Pipes, who notes that bipartisan official Washington ignored both warnings from terrorism experts about the danger of militant Islamicists, and, more ominously, scores of anti-American terrorism incidents abroad and a few at home committed by terrorists inspired by radical Islamic ideology. Worse yet, he notes signs that the government officials have still not been fully awakened from their torpor.

Sunday Song Lyric: I began the Sunday Song Lyrics with a song by one of America's greatest, if most short-lived, songwriters: Hank Williams. Though I enjoy posting more contemporary rock lyrics, it's about time I post a lyric from another one of America's greatest songwriters: Edward Kennedy Ellington -- better known as "Duke." As with Williams, there are many songs from which to choose. Ellington wrote, or co-wrote, some of my favorite songs, including Solitude and I Got It Bad (and That Ain't Good), many of which were popularized by the incomparable Ella Fitzgerald. This week, however, I've decided on another Duke Ellington classic, co-written with Irving Gordon and Irving Mills, Prelude to a Kiss:

If you hear
A song in blue
Like a flower crying
For the dew
That was my heart serenading you
My prelude to a kiss

If you hear a song that grows
From my tender sentimental woes
That was my heart trying to compose
A prelude to a kiss

Though it's just a simple melody
With nothing fancy
Nothing much
You could turn it to a symphony
A Shubert tune with a Gershwin touch

Oh how my love song gently cries
For the tenderness within your eyes
My love is a prelude that never dies
A prelude to a kiss

Sunday Song Lyric Index: Here's a quick reference for prior Sunday Song Lyrics:
- March 21 - Nine Inch Nails - The Fragile
- March 14 - Incubus - Megalomaniac
- March 7 - Rush - The Trees
- February 29 - Oingo Boingo - Only A Lad
- February 22 - Bob Mould - Heartbreak a Stranger
- Feb. 15 - Yaz, Ode to Boy
- Feb. 8 - Joe Jackson, Obvious Song
- Feb. 1 - The The, December Sunlight
- Jan. 25 - Hank Williams, I'm So Lonesome, I Could Cry

Wednesday, March 31, 2004

Tuesday, March 30, 2004

Monday, March 29, 2004

Sunday, March 28, 2004