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Saturday, May 21, 2005
Professor Ratings:
Via Prawfsblog, I've discovered RateMyProfessors.com. This site is probably no more reliable than student evaluations, but it's interesting nonetheless.
UPDATE: A perceptive reader observed that the study cited in the link for "student evaluations" was itself based on data collected from RateMyProfessors.com. For those interested in independent assessments of student evaluations, I recommend this survey by Michael Huemer of the University of Colorado. See also here and here.
Another reader noted that most of the Volokh conspirators are not rated on RateMyProfessors.com. Hmmmmm.
Judicial Obstruction -- Three Different Kinds:
Some defenders of the judicial filibuster suggest this is simple payback for Republican mistreatment of Clinton nominees from 1995-2000. Others argue Senate Democrats have no choice because other, more traditional means, of blocking nominees (e.g. blue slips) have been curtailed. Implicit in some of these arguments is the view that blocking a judge is blocking a judge, no matter how it is done. Matthew Yglesias, for instance, argues that “If we're talking about blocking judges, we should be talking about all the ways (blue slips, failure to schedule hearings, etc.) that nominees have been blocked from getting floor votes.”
While I agree with the principle that all nominees should get hearings and a floor vote within a reasonable period of time – and that it was wrong for both Republicans and Democrats to block action on Clinton, Bush, and Reagan nominees in years past – I am not convinced that all forms of delay are equivalent, or that principled opposition to one suggests principled opposition to them all. It seems to me that there are significant differences between the majority’s control of the Senate agenda, the traditional use of blue slips by home state Senators, and a minority filibuster, and that it is reasonable to oppose the obstruction or delay of nominees through some of these methods but not others.
Majority control of the Senate entails certain prerogatives. Among them are the control of committees and the Senate’s agenda. The party in control of the Senate decides what business to conduct and when to conduct it. As a general matter, it is not “obstruction” when the Senate majority refuses to take up issues supported by the President, as the Senate is entitled to have its own priorities. Thus, one should expect that a Senate majority will consider nominees it likes more rapidly than those it does not, and that nominees from a President of the same party will be confirmed more rapidly than those of a President of the opposition. Again, this sort of agenda control is the prerogative of the party in control.
I believe the Senate majority should make a reasonable effort to consider the President’s nominees to the judicial or executive branch without undue delay, but the majority must enjoy some leeway here as it is the majority. The Senate majority may ignore the President’s legislative initiatives because it has other legislative priorities. That is the majority’s prerogative. Yet only the President can nominate. Therefore if the Senate delays positions necessarily remain unfilled, potentially impeding the operation of the other coordinate branches. So while its traditional for Senate majorities to treat their own party’s nominees with greater dispatch, I do not think they should be obstructionist. If a nominee is truly bad, the Senate majority should hold a vote and defeat him, not bottle up the nomination in committee while a seat remains unfilled.
The one way Senators of a minority party blocked undesirable judicial nominees in the past was through the blue slip, yet this was limited to home state Senators. As practiced for decades, the policy worked like this. When the President nominated someone, a blue slip would be sent to the Senators from the state in which the nominee was to sit. The Senator would return the blue slip with an indication whether he or she supported or opposed the nominee. Traditionally, if the Senator returned a negative blue slip, or refused to return the blue slip at all, the nominee would not be confirmed. The blue slip thus gave home state Senators of either party an effective veto of judicial nominees that would sit in their states, and encouraged Presidents to consider the views of home state Senators when picking judicial nominees. While there is some dispute as to how consistently the blue slip rule was enforced in the past, there is no question that Republicans tightened the rule under President Clinton, and have effectively eliminated it under President Bush.
The blue slip is incredibly undemocratic. It allows a single Senator to block a judicial nominee. The justification for it is that a home state Senator has a disproportionate interest in judicial nominees that will sit in his or her state. In the case of district court nominees, this interest is quite large. With circuit court nominees, the home state interest is somewhat less, but still substantial. The blue slip is a traditional recognition that Senators are representatives of their states, as such, and that they should have some say about the administration of justice in the states they represent. I don’t much like the blue slip, particularly for circuit court nominees, but it is a Senate tradition, some would say “Senatorial courtesy,” observed more often than not for many decades. As such, it has its defenders.
The filibuster is the newest means deployed to block judicial nominees, and effectively imposes a supermajority requirement for judicial confirmation. Prior to the election of President Bush, it had never been used by a Senate minority to prevent confirmation of a judicial nominee enjoying majority support. The one nominee ever filibustered before, Justice Abe Fortas, was opposed by Senators from both parties, lacked majority support, and eventually resigned from the bench under an ethical cloud. It is most certainly not a precedent for the filibusters we have seen for the past few years. Given its lack of any historical pedigree, I find it hard to justify the filibuster on anything but consequentialist grounds. Its use is not simple payback, insofar as it was not used before, and instead represents an escalation in the fight over judicial confirmations. Some believe it is warranted because judges have life tenure, but this was not the constitutional design. Judges have always been confirmed by a simple majority, and I see no reason to change. Indeed, I find it hard to view the current filibuster as anything more than sour grapes.
To recap, I believe all judicial nominees of whichever party should be considered within a reasonable period of time from their nomination – a principle both parties have violated time and again over the past twenty years. Senate majorities and home state Senators have blocked or delayed disfavored nominees for some time, though minority filibusters have not been used. I believe one could support the Senate majority’s agenda control or even blue slips without defending the filibuster, as they are not all the same. I, for one, oppose them all.
UPDATE: This post was not intended as an attack on or defense of either party. As I have written before, I think both parties have engaged in unjustified obstruction of the other’s nominees. As I detailed in my posts on the history of the confirmation fights, here and here, Senate Democrats began blocking Republican nominees in the mid-1980s. Senate Republicans responded with a greater level of obstruction once they retook the Senate in 1995, and Democrats have upped the ante since.
Kevin Drum thinks I should have paid greater attention to the Republicans’ rule changes, particularly with regard to blue slips. I acknowledged the changes above, and would also note that the blue slip rule changes have not been as hard and fast as Drum might suggest. For instance, while Senator Hatch said it would require opposition from both home-state Senators to block one of Bush’s appellate nominees, Senator Edwards was still able to block any action on Terrence Boyle’s nomination all by his lonesome. The Senate Judiciary Committee only began to consider Boyle once Edwards had left the Senate. I would also add that it’s not entirely clear how Senator Specter is approaching blue slips for appellate nominees now. Again, I do not like the use of blue slips by either party. Nonetheless, I recognize that they represent a longstanding “Senatorial courtesy” of respecting the particular interests of home state Senators, and thus believe that they can serve a different purpose than other means of obstruction.
To reiterate my position in case I have not been clear: I think all of this obstruction is wrong; I would like to have seen all nominees of each party receive up-or-down votes; I am not particularly fond of the “nuclear option”; and I would welcome a deal to ensure prompt consideration of all nominees to take effect after the next presidential election.
In the end, I think Senator Pat Leahy (D-VT) had it right in 1998: I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote.
I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. I wish more Senators of both parties had followed this example then, and I wish more Senators would follow it now.
Related Posts (on one page): - Kmiec on the Deal:
- Judicial Obstruction -- Three Different Kinds:
Friday, May 20, 2005
A Different Kind of Law Review Competition:
Over at PrawfsBlawg, Kaimi Wenger and several commenters (including me) are discussing the different strategies top journals use to try to win the competition for the best law review articles. Some journals give authors very tight deadlines to try to force authors to accept; others don't. The different practices among different journals raise lots of interesting normative and tactical questions. What we really need is for an enterprising person to conduct a survey of the top 50 journals to find out their typical practices. How long does an author typically have to decide on an offer? Are extensions granted? How long does an author have to to decide on an offer granted following expedited review? These things can vary year-to-year, but it would be particularly helpful for less-experienced authors to have some idea of current practices. If anyone wants to do this, let me know — I would be happy to post the results here at the VC or link to wherever they appear. UPDATE: I am reminded that Kaimi has a paper in the works on related topics that has some data collected: you can see early data on expedited review practices at The Conglomerate.
Can the FBI Legally Conduct Warrantless Home Searches?:
Here's a puzzle for any Fourth Amendment buffs, legal historians, or FBI agents out there. I was leafing through my federal criminal code book not long ago — what, are you saying you don't do that in your free time? — and I came across the following criminal statute: 18 U.S.C. 2236 Searches without warrant
Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search . . . shall be fined under this title for a first offense; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any person . . . making a search at the request or invitation or with the consent of the occupant of the premises.
Hmm, that's odd, isn't it? The statute seems to be saying that federal law enforcement officials can only conduct warrantless home searches with an occupant's consent. They can't conduct home searches pursuant to other standard exceptions to the warrant requirement, such as exigent circumstances. I'm wondering, can this be right? My very quick research suggests that this provision was passed in 1921, when the Fourth Amendment was in its infancy and before the modern exceptions to the warrant requirement (such as exigent circumstances) were recognized. The original text was part of a bill that was designed as a supplement to the National Prohibition Act, and was designed to limit the then-expanding powers of federal law enforcement agents. At that time, the law stated: [A]ny officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor. Can anyone shed light on this statute? Are FBI and other federal law enforcement agents taught to follow it? Or has it been forgotten? There is no suppression remedy if it is violated, so it's not a provision that a defendant can invoke if the feds to break this law in the course of searching his house. But it remains on the books 84 years after it was passed, and I'm wondering what effect it has today. I have enabled comments.
As Promised, the Answer to the Acquired Cities Problem:
Many times over the last two centuries, the United States has acquired land. A lot of the land was sparsely inhabited, but some contained cities. Name the city that was the most populous at the time of its acquisition.
(If the city became part of a Territory when it was acquired, and then part of a State, I'm counting the population at the time it became part of a Territory. Let's include for purposes of the question the land the U.S. "acquired" at the time it was created. And let's exclude land — such as Germany or Japan after World War II — that the U.S. merely ruled as a self-consciously temporary occupation. People who like to bring legal disputes even into geography problems should note that I'm assuming, together with Lincoln, that the seceding South never actually became foreign land, and thus wasn't reacquired in 1865.)
Here I don't have the precise statistics, but I'm pretty sure I know the right answer. I thought that, rather than just giving it, I'd ask people to post their thoughts on the Comments; naturally, if you have authoritative sources handy — or, better yet, linkable — you should post those. Later on (probably tomorrow), I'll post the right answer, together with an admission if it turns out that I got the answer wrong myself — though as it happens, I've already posted my guess.
See this comments thread for supporting evidence, and for other guesses. Naturally, it's easy to fall into the error of looking only at cities that have stayed part of the U.S., and that have been seen as really "American."
Should the FBI Have Administrative Subpoena Authority?:
Yesterday's papers reported that Senator Roberts of the Senate Intelligence Committee has a bill in the works that would give the FBI the administrative subpoena authority it has been seeking in terrorism cases. So you're wondering: what's administrative subpoena authority? And should the FBI have it? I wanted to offer a few thoughts to shed light on the first question and frame the second. (Warning: long and inconclusive post ahead.) First some background, taken largely from my recent testimony on the Patriot Act. At the most basic level, any modern legal regime that allows the government to investigate crime or terrorism must address a number of basic methods for acquiring information. In particular, the law must cover three basic types of authorities: 1) Authority to conduct physical searches to retrieve physical evidence or collect information.
2) Authority to compel third parties to produce physical evidence or disclose information.
3) Authority to conduct real-time monitoring over communications networks. In the case of criminal investigations, the legal regime that covers these authorities is well established. The first authority is governed by the traditional Fourth Amendment warrant requirement. The police must have a search warrant based on probable cause to enter a home or business unless a person with apparent or actual authority over the place consents, exigent circumstances exist, or another exception to the warrant requirement applies. The second authority is governed by the Fourth Amendment rules governing subpoenas. A subpoena is an order to compel: it requires the recipient to either report to testify or to disclose physical evifence at a particular time and place. Although many different types of subpoenas exist, the basic idea is that the subpoena authority is vested in some body, whether in the grand jury (which is really run by prosecutors, but at least in theory is just a groups of citizens) or a government agency. A subpoena can be issued under a wide range of circumstances: the information need only be relevant to the government’s investigation, and compliance with the subpoena cannot be overly burdensome to the subpoena recipient. No judge is consulted before the subpoena is issued; instead, the recipient of the subpoena can challenge it in court before complying. So much for the regime applicable in criminal cases. What about the law for intelligence investigations? In these cases, the government is not trying to deter and punish crime, but rather to collect intelligence ifnromation about threats to the Nation so it can defend itself. The law governing monitoring for intelligence purposes is somewhat different than the law governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear – and generally less strong – than in the routine criminal context. As a general matter, the few courts that have confronted how the Fourth Amendment applies to intelligence collection have held that the rules are somewhat similar to the rules for criminal investigations but also more flexible. When the Fourth Amendment applies, information and evidence collection must be reasonable in light of the countervailing demands and interest of intelligence collection. See United States v. United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This legal framework appears to place Congress in the primary role of generating the law governing intelligence collection, with the Fourth Amendment serving as a backstop that reviews Congress’s approach to ensure that it is constitutionally
reasonable. Congress has responded to the challenge by passing the Foreign Intelligence Surveillance Act, also known as “FISA.” FISA attempts to create a statutory regime for intelligence monitoring that largely parallels analogous rules for gathering evidence in criminal cases. First, 18 U.S.C. §§ 1821-29 covers the authority to conduct physical searches, a parallel to the provision of the Federal Rules of Criminal Procedure that allows investigators to obtain a search warrant in criminal cases. Second, 18 U.S.C. §§ 1861-62 and 18 U.S.C. § 2709 covers authority to compel third-parties to disclose records and physical evidence, a parallel to the provision of the Federal Rules of Criminal Procedure that allows the issuance of subpoenas in criminal investigations. Okay, enough background. The debates over the FISA-related provisions of the Patriot Act — and the current debate on whether the FBI should have administrative subpoena authority — focus primarily on the second type of authority: powers to compel third parties to produce physical evidence or disclose information. For the most part, such powers to compel are used to obtain business records from third parties, like the phone company, banks, Internet service providers, and the like that have records relating to what the suspect has been up to recently. (It generally doesn't work to serve an order to compel on a suspect directly, as that tips off the suspect to the surveillance and raises Fifth Amendment privilege issues.) Specifically, critics object to the weak privacy regulations found in provisions such as Section 215 of the Patriot Act that address the government’s power to compel third parties to produce physical evidence or disclose information in intelligence cases. And they object to vesting the power to issue such orders in an agency like the FBI. The general concern is that these orders to compel give the government too much power, as they allow the government to issue an order without getting careful judicial review of the order beforehand. So what standard should apply? The difficult part about this question is finding the right frame of reference. If your frame of reference is the grand jury subpoena power in the criminal context, then giving the FBI administrative subpoena power probably doesn't seem so objectionable — it raises some concerns, but isn't entirely objectionable. The reason is that the grand jury subpoena power is already tremendously broad. The Supreme Court has held that a grand jury subpoena can be issued if the order to compel seeks information that may be relevant to a criminal investigation. See United States v. R. Enterprises, Inc., 498 U.S. 292 (1991). This authority “paints with a broad brush” by design, permitting subpoenas to be issued ordering third parties to disclose physical evidence and information “merely on suspicion that the law is being violated, or even just because . . . assurance [is sought] that it is not.” Id. at 297 (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Court has justified this low standard on the ground that orders to compel evidence from third parties are preliminary investigative tools designed to determine if more invasive forms of surveillance are necessary. "[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." See R. Enterprises, Inc., 498 U.S. at 297. The question is, should the government have an analogous power in intelligence investigations, and if so, what is exactly is the intelligence analogy to traditional criminal grand jury subpoena authority? On one hand, it makes some sense to give the government that power: if the government has long had the power to issue subpoenas in minor crime cases, it seems a bit strange that they don't have this same power in terrorism cases. In that sense, giving the FBI administrative subpoena power simply recognizes the historically contingent limitations on the grand jury power. At the same time, it's not clear that FBI administrative subpoena power would really be analogous to the grand jury power. If an FBI agent wants a subpoena, he still needs to go to a prosecutor; the proseuctor issues the subpoena in the name of the grand jury. This introduces one important check on the system, as the investigative agency cannot issue the grand jury subpoena itself. If you want the FBI to be tempered in its efforts by the check of another agency, administrative subpoena authority can seem troublesome. But once again, this depends on your frame of reference. More civil libertarian readers will object to the subpoena power, and argue that we should judge orders to compel evidence (category #2) based on the legal standards that traditionally govern orders to conduct direct searches (category #1). There are reasons why the law regulates category #2 less strongly than category #1 — Judge Friendly had the classic explanation in a case called United States v. Horowitz, and lawprof Bill Stuntz has doen a lot of great work on this area — but many will find these arguments unpersuasive and want orders to compel to follow the traditional warrant requirement. The subpoena power will seem like an end-run around the usual protections. At the same time, other readers may take the opposite frame of reference, and note that many agencies have had administrative subpoena power already, as detailed in this very good report from the Congressional Research Service. If lots of agencies have this power already, they'll reason, why not give it to the FBI for the most important of investigations? As this inconclusive post suggests, I'm not sure of where I come out on the bottom line. On one hand, I do think that the regime of intelligence investigation needs some kind of subpoena equivalent. All successful regimes of evidence collection rely on a mix of low-threshold investigatory steps and higher-threshold investigatory steps; the idea is that investigators should be able to do the less-invasive low-threshold investigatory steps to get evidence to be able to rule out or reaffirm the need to conduct more-invasive higher-threshold investigatory steps. I don't see why intelligence investigations are different on that score. At the same time, I'm not sure that giving the FBI administrative subpoena authority is the way to go. While a number of agencies have such power, they tend to have more limited scope. My initial sense is that there must be ways of increasing oversight beyond that of administrative subpoenas without interfering with their effectiveness as investigative tools. I hope Congress takes a hard look at them before giving the FBI administrative subpoena authority. Hat tip: Phil Carter, who also has thoughts on this. Related Posts (on one page): - The Case for and Against Administrative Subpoenas:
- Should the FBI Have Administrative Subpoena Authority?:
Hate Speech from Eleanor Holmes Norton:
Rick Santorum's foolish analogy about the German conquest of Paris, which Master Conspirator Volokh recently denounced, was an early favorite for the Most Ridiculous Statement by a Congressperson for the Week for May 15-22. However, Senator Santorum must now take a distant second place to D.C. Representative Eleanor Holmes Norton. Opposing a NRA-backed bill to restore Second Amendment rights to the citizens of the District of Columbia, Norton claimed that the intended purpose of the bill was to kill children. Stop the Bleating supplies the citations, and notes the difference between the claim that the bill would have the unintended consequence of causing innocent deaths (a type of legitimate argument which is made in the context of many different legislative debates on different issues) and Rep. Norton's vicious claim that the bill's sponsors are deliberately trying to cause the deaths of innocents. Eleanor Holmes Norton should apologize for her despicable slander.
UPDATE: The weblog No Quarters contacted Rep. Norton's press secretary on Friday, and received a response on Monday. The secretary told No Quarters that Rep. Norton believes is was "not the intention of the sponsors" to kill children. It appears that either: 1. The Washington Times made a mistake about a brief Q&A with Rep. Norton (as her office claims), or Rep. Norton made an incideniary remark to a reporter, and upon reflection Rep. Norton does not want to be associated with that remark. In any case, it is good to know that, even though some gun prohibition lobbyists assert that Second Amendment advocates do not value the lives of children, Representative Norton does not make such a mean-spirited assertion.
Many Thanks
to our readers who responded to my questions about women changing (or not changing) their last names when they marry -- the comments were fascinating and enlightening.
Yeah, That's Right, Just Like Hitler:
According to RawStory.com, here's what Sen. Rick Santorum said in a Senate speech:
And we shouldn't go mucking around in this institution and changing the way we've done things, particularly when it comes to the balance of powers between the three branches of government. And the independence of one of those branches of the judiciary. We must tread very carefully before we go radically changing the way we do things that has served this country well, and we have radically changed the way we do things here. Some are suggesting we're trying to change the law, we're trying to break the rules. Remarkable. Remarkable hubris. I mean, imagine, the rule has been in place for 214 years that this is the way we confirm judges. Broken by the other side two years ago, and the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942 "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine." This is no more the rule of the senate than it was the rule of the senate before not to filibuster. It was an understanding and agreement, and it has been abused. . . .
A CNN story confirms at least part of the quote: "The audacity of some members to stand up and say 'How dare you break this rule' . . . . It's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.'"
The precise nature of the equivalence with Hitler, I regret to say, escapes me. And in the absence of such equivalence or at least a very close similarity, it seems to me to be both unfair and in bad taste to compare your adversaries to Hitler, even when the analogy — a rather weak analogy, as I mentioned — is simply to his hubris (or assertion of entitlement to supposedly ill-gotten gains) rather than to his atrocities.
Thanks to reader Victor Steinbok to the pointer, and to Mike Godwin for helping us understand all this.
UPDATE: Just to make clearer what I hoped was clear at the outset — of course I see the purported analogy, rather a strained one: It's that both groups insist on keeping what (in Santorum's view) they've acquired by fiat only recently, and that they're not entitled to. What eludes me is the supposed equivalence.
One can analogize anyone to Hitler. Some people wear mustaches. Others are charismatic political leaders. Others invade countries. Others disapprove of homosexuality. (I set aside here the debates about homosexuality among the Nazi elites; I refer here to the Nazi government's actions with regard to homosexuals.) But I take it that if a Democrat said about the invasion of Iraq — or for that matter of Afghanistan — "It's the equivalent of Adolf Hitler in 1939 saying 'I've got military power; I'll invade some countries,'" Santorum would rightly fault the speaker (as he apparently faulted Sen. Byrd for his Nazi analogies on the other side of the debate).
When you link someone to a person who is famous for mass murder, your argument will carry the rhetorical connection to mass murder (or at least to deadly megalomania) even if you purport to be drawing a much more limited analogy. (Compare the Judge Calabresi incident from last year.) I take it this must be the intention, since otherwise why analogize to Hitler, rather than to one of the many other people who have had more than their share of gall? And this, I think, is indeed unfair and in bad taste.
Thanks to reader Ken White for the Santorum/Byrd pointer.
FURTHER UPDATE: Sen. Santorum now says the statement was a "mistake." Indeed it was. (Thanks to Michelle Dulak Thomson for the pointer.)
Thursday, May 19, 2005
Ridiculous Comment of the Month:
I interrupt my blogging hiatus to bring you the following extreme example of inflated self-importance in the academy: President Bush is visiting Calvin College, an institution that has previously escaped my attention.
Says history professor Dale Van Kley, a 28 year veteran of Calvin College now teaching at Ohio State, "I can see that the Bush administration is gaining capital from this appearance, but I don't see what it does for Calvin."
Acquired Cities:
Many times over the last two centuries, the United States has acquired land. A lot of the land was sparsely inhabited, but some contained cities. Name the city that was the most populous at the time of its acquisition.
(If the city became part of a Territory when it was acquired, and then part of a State, I'm counting the population at the time it became part of a Territory. Let's include for purposes of the question the land the U.S. "acquired" at the time it was created. And let's exclude land — such as Germany or Japan after World War II — that the U.S. merely ruled as a self-consciously temporary occupation. People who like to bring legal disputes even into geography problems should note that I'm assuming, together with Lincoln, that the seceding South never actually became foreign land, and thus wasn't reacquired in 1865.)
Here I don't have the precise statistics, but I'm pretty sure I know the right answer. I thought that, rather than just giving it, I'd ask people to post their thoughts on the Comments; naturally, if you have authoritative sources handy — or, better yet, linkable — you should post those. Later on (probably tomorrow), I'll post the right answer, together with an admission if it turns out that I got the answer wrong myself -- though as it happens, I've already posted my guess.
More on Gender and the Harvard Law Review:
Over at The Conglomerate, Christine Hurt is looking into why recent Volumes of the Harvard Law Review have mostly published the works of male authors. One obvious trend in the HLR's publication track, Christine notes, is the very strong preference for articles in constitutional law: Given the roughly equal numbers of female to male assistant professors, I would suspect that law reviews receive an equal number of papers authored by men and women. So, does a ConLaw bias have gender effects? Or a bias toward well-known, established authors? These numbers roughly correlate with the percentage of female full professors. That raises an interesting question — do law reviews receive a roughly equal number of papers authored by men and women? Christine assumes so, but I am less sure. I remember my reaction when I first saw Brian Leiter's 2002 list of the most-cited law professors who entered teaching since 1992: to my surprise, every one of the top 20 most cited professors in that list is male. There are a number of possible explanations for that rather troubling (at least to me) result, but one might be a difference between the sheer number of submissions from men and women, either generally or in the smaller category of more prolific academics. VC readers, what are your thoughts? I would be particularly interested to hear from former or current articles editors who may remember (or remember the absence of) any such trend. As always, civil and respectful comments only. Related Posts (on one page): - More on Gender and the Harvard Law Review:
- Race, Gender, and the Harvard Law Review:
Florida's New Self-Defense Law:
Florida Governor Jeb Bush recently signed Senate Bill 436, which expands and clarifies Floridians’ self-defense rights against violent attackers. The bill was the creation of former NRA President Marion Hammer, who is also head of Unified Sportsmen of Florida, the state’s major pro-gun group. The NRA has announced that it plans to take SB 436 national, and urge other states to adopt similar measures.
Previous Florida programs created by Marion Hammer have done very well in other states. In 1988, her lobbying led Florida to enact “Shall Issue” concealed handgun licensing legislation—so that any law-abiding adult with a clean record and who passes a safety training class may obtain a permit to carry a handgun for lawful protection. Before 1988, only a handful of states had Shall Issue laws; now, only a little more than a dozen states do not have such laws.
Similarly, Hammer invented the “Eddie Eagle” gun safety program, which trains elementary school-age children not to touch a gun unless they are being supervised by a responsible adult. Eddie Eagle has been taught to millions of children, has won an award from the National Safety Council, and has been lauded by state legislature and city councils all over America.
So Florida-style self-defense rights may be coming to your state soon. Opponents of the law have made dire predictions about turning Florida into “the Wild West.” Similar predictions were made about the Shall Issue law, and those predictions did not come true. If you read the actual text of the Florida law, it becomes clear that the new law simply codifies common-sense principles of self-defense, including the principle that violent criminals, not innocent victims, should be the ones at risk during a violent crime.
Let’s start with the Preamble:
WHEREAS, the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others, and
WHEREAS, the castle doctrine is a common-law doctrine of ancient origins which declares that a person's home is his or her castle, and
WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves, and
WHEREAS, the persons residing in or visiting this state have a right to expect to remain unmolested within their homes or vehicles, and
WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Few people could disagree with the statements in the Preamble, which simply affirm existing rights, including the rights of innocent people not to be attacked.
The operative part of the law begins by setting forth the standard for use of deadly force against an attack in one’s home or one’s automobile:
Section 1. Section 776.013, Florida Statutes, is created to read:
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
In other words, a person may use deadly force against someone who unlawfully and forcefully enters a person’s home or vehicle. A victim may also use deadly force against a criminal who attempts to force a person out of her vehicle or home. Thus, if someone kicks down your front door in the middle of the night, or attempts to carjack you, you can use firearm or other deadly weapon to protect yourself. You do not have to worry that a prosecutor might second-guess your decision, and claim that you should have used lesser force against the violent intruder.
The bill makes several exceptions. The right to use deadly force does not apply against someone who has a right to be in the home or car (unless the person is the subject of domestic violence restraining order r a no-contact order). The right does not apply in child custody dispute. Of course the right does not apply if the person trying to enter the home or automobile is an identified police officer acting within the scope of his duties. Similarly, persons who are using the automobile or dwelling to commit a crime are not covered:
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
Prior Florida law about self-defense allowed defensive deadly force only when the victim believed that no lesser force would suffice. The principle remains in effect in all self-defense situations in Florida, except when the attack takes place in the home or automobile; the legislative judgment was that attacks in a home or vehicle are so outrageous, and so threatening to the social order, that victims should be guaranteed that they will be protected from having their defensive decisions second-guessed in court.
Outside of the home or vehicle, a victim may only use deadly force when it is reasonably believed to be necessary. (So the victim continues to face a risk of prosecutorial second-guessing). However, the new law specifies that victims are not legally obliged to retreat anywhere:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
So if a gang tries to mug you while you are walking down a dark street, and you draw a gun a shoot one of the gangsters, a prosecutor cannot argue that you should have tried to run away. The prosecutor still can, however, argue that use of deadly force was unnecessary, because the victim could have used lesser force in the particular situation.
The next section of the law makes explicit one of the presumptions of the law—that violent invaders of the home or automobile are presumed to be intending to commit violent crimes after they enter.
(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
The first section of Florida Act concludes by defining “dwelling” to include a porch which is attached to the dwelling, and to include temporary dwellings, such as camping tent:
(5) As used in this section, the term:
(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
The second and third sections of the bill amend existing statutes, to make explicit the absence of an obligation to retreat. (Italicized language is new; strike-through language has been repealed.):
Section 2. Section 776.012, Florida Statutes, is amended to read:
776.012 Use of force in defense of person.--A person is justified in using the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the such other's imminent use of unlawful force. However, a
the person is justified in the use of deadly force and does not have a duty to retreat only if:
(a) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or.
(b) Under those circumstances permitted pursuant to s. 776.013.
Section 3. Section 776.031, Florida Statutes, is amended to read:
776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
The final section of the bill prohibits tort lawsuits against persons who act in conformity with the law. A criminal who sues a crime victim will be liable for the victim’s legal expenses. Police officers are not allowed to arrest a victim who defended herself, unless the officers have probable cause to believe the victim violated the laws:
Section 4. Section 776.032, Florida Statutes, is created to read:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s.776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
Principled opponents of the Florida law can object to the bill because it allows deadly force against home invaders and carjackers, because crime victims are not required to retreat, or because criminals may not sue crime victims. In the United Kingdom, such objections would carry the day. Earlier this year, the Blair government defeated a move in Parliament to ease Britain’s severe restrictions on self-defense in the home, because, in the British government’s view, criminals also have a right to be protected against violence. Likewise, the British courts have allowed burglars to sue victims who used force against them.
But in the United States, social attitudes tend to favor the victim’s rights over those of the criminal. Most Americans would disagree with the idea that a mugging victim should be sent to prison because he didn’t try to flee, or that violent predators ought to be able to sue victims who shoot them.
As the Florida bill is introduced in other states, victims-rights opponents will probably be successful in getting newspapers and television to describe the proposal in very frightening terms. But when legislators and their aides read the actual text of the bill, many legislators will—like their Florida counterparts—conclude that bill is nothing more than some common-sense protections for crime victims.
Good Column From David Brooks Today:
It begins: Maybe it won't be so bad being cut off from the blogosphere. I look around the Web these days and find that Newsweek's retracted atrocity story has sent everybody into cloud-cuckoo-land. Every faction up and down the political spectrum has used the magazine's blunder as a chance to open fire on its favorite targets, turning this into a fevered hunting season for the straw men.
NR on Filibusters:
The NYT is not the only inconsistent publication. NR flipped too — and more quickly — and is called on it in house.
Can these positions be reconciled? Maybe. If I understand NR's editorial position, it is that the filibuster is worth preserving and eliminating the judicial filibuster could lead to the elimination of the legislative filibuster, so the nuclear option is imprudent. Now that the GOP is on the brink, however, NR believes they must follow through. In other words, this was the wrong fight to have, but it's a fight the Right cannot afford to lose.
UPDATE: NRO's Cornerites discuss this question here and here.
Law Reviews Online:
After praising the Virginia Law Review and the Duke Law Journal for posting their issues online -- and naively assuming that they were the first Top 20 journals to do that -- I got lots of e-mail from editors at other journals, saying they did the same: Columbia, NYU, Penn, and Yale, plus also American, Buffalo Criminal, Indiana, NYU J of Legislation & Public Policy, Wash U, and of course various tech law journals. News to me, and I expect news to many others.
Unfortunately, I couldn't find a comprehensive directory of all the journals that have online content; the Library of Congress list is underinclusive, the Jurist list is overinclusive, and the findlaw list isn't up-to-date. There's also no good search engine that I could find that just searches through law review articles, and does so comprehensively; google seems overinclusive, and findarticles.com seems underinclusive.
I suppose that's just a reminder that pay services which are in this business (WESTLAW, LEXIS, HeinOnline) do tend to be more comprehensive than amateur or free services, or ones that don't focus on law.
Service for Lloyd Cutler:
The Washington Post covers the memorial service for this most remarkable man here. Hat tip: Susan Crawford, who was there and offers a few thoughts of her own.
Wednesday, May 18, 2005
Which Are Better -- Blogs or the Traditional Media?
I've always been puzzled by this question, at least when asked at this level of generality. Let me offer some reasons.
1. Would we ask — which are better, books or magazines? Some books are better than some magazines, under most metrics of quality (accuracy, reliability, and the like). Some magazines are better than some books. It's pointless to compare one medium as a whole to the other. Each is too heterogeneous, ranging from utter shlock to very valuable stuff.
2. Ah, but can't we compare the average book against the average magazine, or the average blog to the average newspaper or TV program? Well, we practically can't — there are too many for us to meaningfully choose an average. And why would we want to? No-one reads the average book; the average book is probably boring, out-of-date, badly written, and not very accurate.
As Sturgeon's Law (or at least one version of it) puts it, "90% of everything is crud." The great thing about books is that we don't have to read the average book; we can read some of the best books in the field (especially with the help of reviewing mechanisms that tell us what's likely to be the best), and ignore the crud. Likewise for newspapers, or for blogs.
3. How about comparing the popular blogs to the popular newspapers? Again we'd fail. There are lots of popular blogs out there, some good and some bad; likewise for newspapers (the Weekly World News is a newspaper). What's the point of comparing one such mixed group against another? And when people avoid this by just selecting a particular subset, it's very easy to select whatever subset helps fit one's pet theories.
4. But surely on some things nearly every leading newspaper is better than nearly any blog — for instance, on original investigative journalism that involves many months of investigation. Uh, OK. But few blogs that I know of are trying to compete with newspapers on such stories. Most of the political blogs tend to provide opinion and news analysis. On this score, some are better than some newspapers, and some are worse than some newspapers.
5. Still, wouldn't you rather have only newspapers and no blogs than only blogs than no newspapers? But fortunately, that's not the choice, just as we don't need to choose between a world with books but without magazines and a world with magazines but without books.
A world in which we have both blogs and traditional media is better than a world that has only one or the other: It provides more viewpoints on many issues; it provides more coverage of a broader range of subject matters; it provides more checks and balances, in the form of some speakers critiquing others' work and pointing out errors in it.
The question, it seems to me, should be how blogs and newspapers — or, better yet, particular kinds of blogs and newspapers — can become more accurate, useful, and readable. A part of the answer, in fact, would be more criticism, criticism that has increased with the development of blogs. But in any event, such an inquiry is much more helpful than attempts to compare things that can't be compared or aren't worth comparing.
NYT on Filibusters -- Continued:
Stone Court thinks there is no inconsistency in the two NYT editorials I cite below. Certainly, one could oppose the filibuster on principle, but still object to changing the filibuster rule by a simple majority vote, but this is not the Times' position.
As the excerpts below should illustrate -- and the full text of the editorials makes clear -- the gray lady has indeed changed her editorial position on the merit of filibusters. In 1995, filibusters were "negative feats of endurance" and "the tool of the sore loser." Today, filibusters are "part of the Senate's time-honored deliberative role and of its protection of minority rights" and "a necessary weapon." So while one could be both anti-filibuster and anti-nuclear option, that is not the NYT's editorial position.
In a related vein, one reader wonders why the current NYT editorial board should be bound in perpetuity to prior editorial positions -- after all, it's not the St. Louis Post-Dispatch. Fair enough, the Times can change its mind. But we're not talking about some long ago position -- this was 1995. Moreover, insofar as the NYT seeks to be a voice of principle, rather than partisan political interest, I think it is reasonable to expect a reasonable amount of consistency and frank acknowledgement when its views change.
National Anthem Law:
Here's what the Michigan Penal Code says about the National Anthem:
Sec. 542. . . . The national hymn or anthem, “The Star Spangled Banner”, shall not be played, sung or otherwise rendered in this state in any public place nor at any public entertainment, nor in any theatre, motion picture hall, restaurant or cafe, except as an entire and separate composition or number and without embellishments of national or other melodies; nor shall “The Star Spangled Banner” or any part thereof or selection from the same, be played as a part or selection of a medley of any kind; nor shall “The Star Spangled Banner” be played at or in any of the places mentioned herein for dancing or as an exit march.
Sec. 541. . . .
No [operators] . . . of any theatre, motion picture hall, restaurant, cafe or other places in this state where the public gathers, shall permit or allow anyone who plays, sings or performs therein to play, sing or otherwise render “The Star Spangled Banner” in violation of the provisions of this chapter.
Sec. 543. . . . Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor.
Fortunately, it's pretty clear that the First Amendment bars Michigan from enforcing this. It's also pretty clear that musical law makes the ban on playing "The Star Spangled Banner" for dancing quite unnecessary.
And, of course, if the requirement that it be played as "an entire . . . composition" means that all the stanzas need to be sung, not just the first, then I'll bet that most ballparks are in violation.
Chess Tactics:
I've long enjoyed chess — my dad taught me when I was four or five, I think, since that's of course the duty of Russian Jewish dads. I've never been great at it, and I haven't had much time to play recently, but I really like the game.
In any event, my friend Ward Farnsworth — a lawprof at Boston University — just put together a great online guide to chess tactics should be an excellent resource for anyone who is learning to play the game. (The site is called "Predator at the Chessboard," which is especially amusing if you know Ward, who is among the least predatory-seeming people I know; maybe chess makes his alter ego come out.) Check it out.
Avian flu update: human-to-human transmission
Some of you may know that I have my hand in a new blog on Avian Flu. The purposes of the blog is to provide a clearinghouse for information on avian flu and its public policy implications. The very latest news concerns a forthcoming WHO report that human-to-human transmission may well be occurring in Vietnam, here is that story. This, of course, is very worrying news.
Copyright and the Constitution:
People interested in this subject -- especially as it applies to intellectual property laws that go beyond the supposedly limited-times framework of copyright law -- should read Bill Patry's take on this (read that post and also the following one). Bill is one of the leading copyright experts in the country, and a former draftsman of copyright legislation, when he worked on Capitol Hill.
Religiously:
People still often say how they read something or do something "religiously," presumably to mean "without fail" or "with dedication" -- for instance, "I read your blog religiously," or "I'll administer these medicines religiously" (to take two real examples I've run across recently). But shouldn't it, for most people, mean "reluctantly, twice a year"?
Stevens, Originalism, and the Wine Opinion:
I have chosen to remain rationally ignorant about the 21st Amendment — while it's one Amendment I am firmly behind, I can't say I know anything about the details — but I am not sure I share co-blogger Todd's reaction, also shared by Stephen Bainbridge, to Justice Stevens' dissenting opinion in the wine cases. Persuasiveness aside, the Stevens dissent strikes me as relatively standard originalist fare. The opinion attempts to contrast the original understanding of the 21st Amendment with the policy views of the present day, and argues that the policy views of the present day should not trump the original understanding of the 21st Amendment. Granted, the idea that Justice Stevens would suddenly embrace originalism is worth a chuckle. He is a rather late convert to the faith, and I suspect won't be found in church next Sunday. But the structure of his argument seems common enough. Consider his view that we should pay special deference to the views of those who were around at the time the 21st Amendment was passed. This seems similar to the view the Supreme Court expressed in Ogden v. Saunders, 25 U.S. 213 (1827), that there is a "presumption, that the cotemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them." More recently, this approach has appeared in a number of recent opinions that feature originalist modes of interpretation, among them Alden v. Maine, 527 U.S. 706 (1999), in which Justice Kennedy examines the views shared by "[t]he generation that designed and adopted our federal system" for evidence of the "original understanding of the States' constitutional immunity from suit" that can shed light on the meaning of the Eleventh Amendment. The basic idea seems to be that the views of those around at the time a constitutional provision was adopted can provide some insight into the original understanding of constitutional text. Of course, none of this means that Stevens was right or wrong, or that originalism is a good or bad tool for understanding the constitution. But it does leave me less persuaded that the Stevens opinion is somehow outside the mainstream of judicial craft. Related Posts (on one page): - Stevens, Originalism, and the Wine Opinion:
- Justice Abraham Simpson Stevens:
NYT on Filibusters -- Then and Now:
Today the NYT editorializes against elimination of the judicial filibuster. According to the Times' editorialists, the filibuster and other modes of obstruction are "all part of the Senate's time-honored deliberative role and of its protection of minority rights, which Republican leaders would now desecrate in overreaching from their majority perch."
In 1995, however, the NYT sang a different tune. In a January 1, 1995 editorial (posted on on NRO's Bench Memos here), the NYT hailed Senator Harkin's proposal to limit the filibuster. For years Senate filibusters — when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor — consisted mainly of negative feats of endurance. . . .
Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes. In 1995, the NYT endorsed a proposal for successively lower cloture-vote requirements to allow a determined majority to win the day, while still preserving the minority's right to prolong debate and voice its opposition. Senator Frist's 100-hours-of-debate proposal would produce the same effect, yet the NYT blasted this as a "No-Compromise Compromise" on May 3.
Senators of both parties have been inconsistent in their views of the filibuster. That's what one expects from politicians. Is it too much to expect greater consistency from the nation's one-time paper of record?
UPDATE: The LA Times, on the other hand, stands on principle and advocates eliminating the judicial filibuster even though it will allow the confirmation of judicial nominees it does not like.
South of the Border:
Amusing story about the (in)famous Pedro's South of the Border, an iconic stop on I-95.
Blawgs and the Populist Touch:
Lincoln Caplan, editor of Legal Affairs, has an essay on law-related blogs in the magazine's lastest issue. Caplan suggests that law-related blogs are unusual because they lack the populist touch: Most blawgers are law professors, lawyers, or law students and, reading what they post online, you realize that they're not the uncredentialed challenging credentialed journalists, but credentialed lawyers (or lawyers-in-the-making) endeavoring to take back their subject from journalists and talking heads. While much of their content is gossip, a lot is commentary geared toward legal experts and virtually impenetrable for anyone else. Rather than being a populist advance, blawgs are often outlets for rarefied material. Caplan continues: You can herald blawgs as providing analysis, information, and opinion in a new form. You can dismiss some as a way for people with tenure and a lofty opinion of themselves to have their say in yet another forum. However you slot them, the impulse to blog often seems to be the opposite of the effect of blawgs. The key ones are efforts by lawyers and academics to be public voices, to matter outside the legal world, to connect. Yet while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs. I wonder, though, who ever said that blogs are supposed to have the populist touch? What makes blogs blogs, I think, is that they have the touch of their individual (or in some cases collective) authors. While credentialed journalists have to speak to "the general public," bloggers are free to speak to whatever segment of the Internet audience they want. Bloggers get to pick their audience, and each blog can be as broad, narrow, specialized or general as its author wants. The fact that lots of legal bloggers have chosen to address a pretty sophisticated and well-informed audience is part of what makes blawgs blogs. UPDATE: Ernest Miller offers additional thoughts here.
Tuesday, May 17, 2005
Amazing Tribute to Star Trek:
By James Lilek. This how it begins, but it is NOT how it ends:
One of the good things about the End of Trek: I’ll never have to listen to the bitching of fans. The more I troll the message boards and forums and Usenet groups, the more I’m convinced that the entirety of Trek Fandom is made up of people devoted to proving the inadequacies of the thing they supposedly love. Oh, that episode was horrible. Worst season ever. That show wasn’t anything like the wonderful perfect original series – remember that show where the computer ran the entire planet? No, not the one where the planet looked like the backlot for an Old West movie. No, not the one where the planet was some sort of jungle with Caucasian Polynesians who shoveled fruit into the mouth of a big computer-god. No, not the one where the planet was actually an asteroid. Oh – wait, yeah, that one. No – wait, the one where the planet was full of Indians, and the computer saved them by pushing away an asteroid – a different one than the one where McCoy was dying and fell in love with the priestess, because it was turn to get some - and Kirk was like a big war brave chief or something. Miramanee! Man, he knocked some moccasins that one. Yes, the new Trek sucks, there’s nothing like that Nazi planet episode – well, except for the Nazi planet two-parter. (Which sucked!) There was nothing that had Q in it, like in Next Gen, when he would take them all back to Robin Hood times and it wasn’t even a holodeck because he used his Q powers. For that matter, where were the holodeck stories on “Enterprise”? Not one! Okay, in the last one, but you know what I mean. You want to talk Trek, you talk Next Generation, and that means Whoopi Goldberg in a cardboard hat and a warship with a daycare center.
Complaints and trekkier-than-thou nitpickery. Ye canna change the laws of fandom.
Justice Abraham Simpson Stevens:
One more point on the dissent of Justice Abraham Simpson Stevens in the wine case--his dissent is truly one of the more idiosyncratic opinions I recall reading.
Is that me and my colleagues at the FTC he has in mind in referring to those youngins engaged in this newfangled policy analysis?
Today many Americans, paricularly those members of the yonger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.
Oh these kids today with their fancy wines and "rock and roll" music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we drank Heilemann's and, by george, we liked it!
He goes on to add a canon of law with which I am not familiar:
The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State's right to discriminate in its regulation of out-of-state alcohol could not have been clearer.
Is this a real canon of law? He cites no authority for this novel "respect your elders" canon of construction, so I am not sure what to make of it. Does it apply to statutes as well? If a judge lived through the enactment of the Clean Air Act, does that mean he is entitled to greater deference because he remembers Pittsburgh in the 1950s?
But there is another, more important reason, why Brandeis's recollections of the 21st Amendment are largely irrelevant. In the same opinion that Stevens points to, the Young's Market case, Brandeis also expresses the view that the 21st Amendment also made the 14th Amendment's Equal Protection Clause inapplicable to alcohol regulations. Stevens notes that many of the state laws enacted after the 21st Amendment were discriminatory--but they also violated the 1st Amendment, Due Process Clause, and other assorted provisions of the Constitution. So unless Stevens is willing to say that states can permit sale of alcohol only to whites and not to blacks, or to prohibit the sale of only sacramental or kosher wine, it is hard to see that this particular argument gets him very far.
A very peculiar opinion.
Wine Case:
I don't really have much to add, except that the majority got it exactly right in this case in its analysis of the dormant Commerce Clause, 21st Amendment, and policy considerations. The reasoning seems virtually identical to the articles I have written on this, so I won't belabor it here.
As for Kennedy, I think the best explanation is that when push comes to shove, he decided this case (and perhaps others) on the basis of his own personal intuitions of what is right or wrong, or makes sense, and he plainly saw that these laws simply make no sense. I think the fact that he both opens and closes with a discussion of the FTC Report and stresses the complete lack of any empirical evidence submitted by the states suggests that in the end he simply cannot see that the Constitution would compel the preposterous result of permitting hundreds of in-state wineries to ship, but not out-of-state, especially with no evidence of anything but naked discrimination to support it. Not the most edifying constitutional theory, but I think that is what is animating his opinion. Bainbridge and Ribstein also offer realist takes on it.
As for O'Connor, Stevens, and Rehnquist--one should not be surprised by them. They have adhered to the same interpretation of the 21st Amendment, O'Connor even moreso than the others, for going on 20 years now, and have refused to change their minds.
Justice Stevens's "Abe Simpson" style of dissent is a new one though--who needs empirical evidence when you can just sit back and rely on personal reminiscences from your days as a child in Chicago. Of course, despite this, Stevens still missed the real point of the 21st Amendment and the demise of Prohibition--namely, that it was intended to withdraw the federal government from meddling in local regulation of alcohol, not to empower the states to engage in economic warfare against the products of other states.
Unlike others, I am not at all surprised by Scalia. He has long distinguished between the nondiscrimination prong of the dormant commerce clause versus the Pike balancing test. The former is clearly part of the structure and history of the Constitution. It is much less clear that the latter is part of the Constitution (except as a proxy for ferreting out discrimination). Scalia has long supported the former but not the latter.
Thomas seems much more conflicted about this. In Camps Newfound, he seems to support the nondiscrimination principle, rooting it in the Export-Import Clause. But he subsequently seems less sure. It is interesting that his opinion does not discuss the dormant commerce clause, but instead goes straight from the statutory grounds he would have used to decide the case (under the Webb-Kenyon Act), to the 21st Amendment, with little discussion of the dormant commerce clause.
This case also is important beyond wine. By dissing New York's "physical presence" argument, the Court thankfully reasserted the ancient principle that a law does not become nondiscriminatory against out-of-staters simply by permitting them an option to become in-staters. In so doing, the Court saved the entire fabric of e-commerce in the country.
Finally, the case is important in reasserting the need for states to come forward with actual evidence to support their discriminatory regulatory regimes. Hand-waving and posturing is not a substitute for evidence, and the evidence here plainly reinforced Kennedy's common sense as to the absurdity of these laws.
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