The Volokh Conspiracy

Lawyers Flee Megafirms: The National Law Journal has an interesting piece about lawyers leaving large law firms because they are, well, too large. It's not my area of expertise, so I'll open comments and see what better-informed readers have to say.

Journal of Law and Social Parody: They say it's easy to start a new law review, but Anthony Rickey is finding that it's even easier than you might have thought.

Good Thing Our Italophone Is Working:

Chris Newman (Dagger in Hand) posts the Italian penal code provisions under which author Oriana Fallaci is threatened with jail. Her crime, of course, is saying "the 18 things you can't say about Muslims in Italy".

Related Posts (on one page):

Good Thing Our Italophone Is Working:
"The 18 Things You Can't Say About Muslims in Italy":
Europe and Free Speech:

Huh?

According to an AP story,

American Gold Star Mothers Inc. [which apparently accepts for membership American citizens who are mothers of American soldiers who died in action] has rejected [Ligaya] Lagman, a Filipino, for membership because -— though a permanent resident and a taxpayer -— she is not a U.S. citizen.

"There's nothing we can do because that's what our organization says: You have to be an American citizen," national President Ann Herd said Thursday. "We can't go changing the rules every time the wind blows." . . .

Rules are rules! They were obviously handed down at Mt. Sinai. Or by the Founding Fathers. Or by Congress. Or, wait, maybe they're just something that our predecessors came up with, and that we are entitled to change. (My understanding is that nearly all such organizations indeed have the power to change their bylaws.)

So forget about the rules are rules, and explain why this is a good rule. It's not an obviously ridiculous rule: Citizenship says something about a person, and a group that's set up in part to foster patriotic love of the U.S. may understandably want to limit its membership to U.S. citizens. Plus of course it's not like denying Lagman membership would be a vast harm to her.

Yet it strikes me as something of a mean-spirited rule nonetheless. This is a mother of someone who died fighting for the U.S.; she lives in the U.S.; she wants to join an organization that honors soldiers who died fighting for the U.S. (the story suggests that the person who nominated her may be more interested in getting the organization to change its rules, but I have no reason to doubt that the mother sincerely sympathizes with the views of the organization). It's not like changing the rules will let some horde of furriners will overwhelm the organization and turn it to nefarious purposes. Would it kill them to include women like Ms. Lagman, women with whom they have far more in common than they have differences?

But in any event, if they want to defend their position, it seems to me that they should defend it on the merits, rather than appealing to The Rules.

UPDATE: A couple of readers argue that the group is a private group (which it is, despite its federal charter, which really doesn't give it much by way of special benefits beyond what other nonprofit corporations have), and should be free to set whatever rules it wants, and also free to decline to defend them substantively. I agree entirely; and the rest of us are free to criticize them.

Geof Stone and I Discuss Religious Reasons for Lawmaking,

on the Huffington Post; Geof's post is here and mine is here. An excerpt from Geof:

George Bush appears to have no idea whatever of the difference between faith and morality. He acts arrogantly on the premise that cell-stem research, gay marriage and abortion are immoral, when in fact his views are based entirely on his own sectarian religious beliefs. His opposition to cell-stem research is no different, and no more legitimate, than a Muslim's opposition to Bush eating pork. Such a policy is merely faith masquerading as morality. As such, it is profoundly, blindly, and disturbingly incompatible with a basic premise of a well-functioning democratic society.

And one from me:

[I]t shouldn't matter whether someone supports [laws banning -- or allowing -- abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound] because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

Related Posts (on one page):

Pigs, Horses, Religion, and Morality:
President Bush's Stem Cell Veto and Separation of Chruch and State:
Willingness to Reconsider Religious Arguments:
Religious Arguments and the Possibility of Changing Minds:
More on Religious Arguments:
Pork and Horsemeat:
Religion, Forcing Moral Views on Others, and Abortion:
Geof Stone and I Discuss Religious Reasons for Lawmaking,

Justice Brandeis Stealing from Yoda:

Brandeis, in Whitney v. California (1927):

[F]ear breeds repression; . . . repression breeds hate; . . . hate menaces stable government . . . .

Yoda, a long, long time ago:

Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.

Note that, like Brandeis and Yoda, great minds think alike: After I thought of this, I noticed that Jewish Buddha got there earlier.

More on Citations to Foreign Law: Professor Michael Kelly has responded to my post on the fact that Justice Scalia and Justice Thomas are opposed to discussing foreign law in the course of interpreting the U.S. Constitution. As I noted in my earlier post, Professor Kelly's initial essay suggested that Justice Thomas doesn't cite foreign law because he lacks intellectual curiosity, and that Justice Scalia refuses to do so because he is afraid that citing foreign law will make it hard for him to defend originalism.

Professor Kelly offers a more complete explanation in his new post. Here is his explanation of why he thinks lack of intellectual curiosity explains Justice Thomas's failure to cite foreign law:

The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers. Even Rehnquist demonstrated this natural compunction in Glucksberg when he noted the experience of The Netherlands as he was rejecting a right to euthenasia.
I have not had as many conversations with Justice Thomas as Prof. Kerr has to refute his claim of first-hand knowledge to the contrary. All I have is Thomas' writing to form my opinion, which I have done. And his resistance to citation of foreign court judgements appears not be based on anything other than not wanting to deal with it.

I'm not sure I follow the reasoning here. By what theory does judicial citation serve as an indicator of "intellectual curiosity" and "innate hunger for more knowledge"? Citing foreign law is easy; you just pick up a brief and cut and paste some citations. As far I can discern, that neither requires nor correlates with "innate hunger for more knowledge." And why is comparative international practice the relevant metric for intellectual curiosity? Why not use discussions of American legal history instead? If you pick legal history as the guide, then you will conclude that the more originalist Justices are the only intellectually curious Justices on the Court. More generally, what about Justice Thomas's opinions leads Professor Kelly to conclude that he in particular lacks intellectual curiosity? For the second post in a row, he does not say.

In his explanation for Justice Scalia's refusal to cite foreign law, Professor Kelly acknowledges that Justice Scalia "has a philosophical reason for resistance." Justice Scalia does not cite foreign law because in his view it is irrelevant. Professor Kelly continues:

[That] is why I posed the question of what he may be afraid of (again, I don’t know the answer), although I suspect it could be that originalism is not used widely by foreign courts. If it were, perhaps he would have occasion to cite them. However, his bigger fear (again guessing here) may be that a slippery slope exists. If judges begin citing foreign law as non-mandatory, how long will it be before they begin using it to decide cases?

  Again, I'm not sure I follow. Justice Scalia sees foreign law as irrelevant because foreign decisions do not even claim to be interpretaions of the U.S. Constitution. The foreign decisions are interpretations of foreign law, not U.S. law. Why would we think it odd — or, in this case, a sign of fear — not to discuss something that doesn't even claim to be relevant to the case? It seems to me that the normal judicial practice is to not cite that which is deemed irrelevant; I'm not sure why that doesn't fully explain Justice Scalia's practices. Justice Scalia doesn't discuss the Bible in his opinions on constitutional law, either. Should we conclude that he is afraid of religion?

  In any event, I hope I'm not being unfair in my response. I have enabled comments just in case; I am confident that VC readers will set me straight. As always — you knew this was coming, didn't you? — civil and respectful comments only.

  UPDATE: I have deleted two comments already because they were neither civil nor respectful. Sorry to police things like that, but I don't open up comments so commenters can hurl insults.

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Workers of Japan, Cast Off Your Ties!

Laurie David comments on Japan's decision to adopt "casual summer" in order to fight global warming:

The very next day, the New York Times ran an article about the chairman of Toyota Motor, Japan’s largest company, bucking tradition in the name of reducing global warming -- announcing that all Toyota employees are to leave their business suits and ties at home this summer in anticipation of rising temperatures. No suits = less air conditioning = less energy burned = reduced global warming gases. The Japanese government has also adopted "no necktie, no jacket" summertime policy.

It's simple, ingenious, brave, and practical.

"Brave"?

American Rhetoric:

A friend just put me onto American Rhetoric, a nifty website which contains audio of many important speeches in American history (and discussions of rhetoric more generally). The site lists the Top 100 American speeches here (with audio provided for most of them).

Bill Patry Has

more on copyright and the Constitution, this time in the context of bringing certain works from the public domain back within copyright protection.

The Myth of Crypto As A Crime: A story is circulating around the blogosphere that using encryption is now considered evidence of criminal activity, at least according to a recent court decision. I think the misunderstanding started with this piece by Declan McCullagh, was then picked up by Bruce Schneier's widely read blog, and spread from there to many other blogs (see, e.g., here, here, and here). Obviously, the idea that using encryption necessarily reflects criminal activity is rather silly; Internet users use encryption all the time for all sorts of legitimate reasons. As many critics of the new decision have noted, it makes no sense to see encryption as inherently linked to crime. But contrary to the blogospheric common wisdom, no court ever said it was.

  Here is what happened in the case, State v. Levie, decided by the Minnesota Court of Appeals. (Warning: graphic, disturbing, and lengthy facts of the case ahead.) The defendant in the Levie case was charged with soliciting his young niece to take nude pictures of her for money. The niece testified that her uncle, the defendant, had asked to take nude pictures of her starting when she was 8 years old, and that when she was nine she agreed to let him do so on several occassions. The defendant took digital photographs of her and transfered them on to his computer. At one point, in late 2002, the defendant asked his niece to take a particularly vulgar photograph. The girl refused, and eventually the case was reported to the police. The defendant had been accused of child sex-related offenses before, and was known for hosting sleepover parties with 8-to-10 year-old girls.

  The police seized the defendant's computer pursuant to a search warrant and analyzed it using EnCase forensic software, a tool for analyzing hard drives that is commonly used by state and federal law enforcement. Presumably the goal was to recover the pictures of the victim that the defendant had taken before, as well as any other evidence that might verify the truth of her story. The EnCase software produces a report that explains the contents of the hard drive, and a detective created such a report in the case using the software.

  Surprisingly, however, the report did not reveal the discovery of any nude photographs of the victim, or any other child pornography. The only evidence the report recovered was that someone had entered child-sex related search terms such as "lolita" into a web browser found on the hard drive, and that there was a folder in the computer labeled "research" that contained the text of the state statutes on child pornography. The report also found that the computer contained a copy of the encryption program PGP (pretty good privacy). The trial judge ended up excluding part of the report at trial, but admitted the portion of the report that disclosed the use of child-sex related search terms and the existence of PGP.

  The niece's testimony was the key evidence at trial. The contents of the computer was an issue only to the extent it corroborated or disproved her story. Although the opinion is not clear on this, it's not hard to imagine why the contents of the computer were relevant. The girl had testified that the defendant had put nude pictures of her on his computer, but no pictures were recovered. The defense presumably argued that the lack of pictures showed the niece was lying. The government pointed to the Internet search terms as corroboration, and argued that the lack of photos on the defendant's computer only reflected the fact that he was savvy enough to get rid of the images, hide them, or encrypt them because he knew the police were coming. The evidence of the defendant's careful effort to hide the files and evade law enforcement was the downloaded text of the state statute and the copy of PGP. Not slam-dunk evidence, obviously, but not entirely irrelevant.

  And that's all that the Minnesota Court of Appeals held. Here is the analysis:

Appellant first argues that he is entitled to a new trial because the district court erred in admitting irrelevant evidence of his internet usage and the existence of an encryption program on his computer. Rulings involving the relevancy of evidence are generally left to the sound discretion of the district court. State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978). And rulings on relevancy will only be reversed when that discretion has been clearly abused. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994). "The party claiming error has the burden of showing both the error and the prejudice." State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995).
Appellant argues that his "internet use had nothing to do with the issues in this case;" "there was no evidence that there was anything encrypted on the computer;" and that he "was prejudiced because the court specifically used this evidence in its findings of fact and in reaching its verdict." We are not persuaded by appellant’s arguments. The record shows that appellant took a large number of pictures of S.M. with a digital camera, and that he would upload those pictures onto his computer soon after taking them. We find that evidence of appellant’s internet use and the existence of an encryption program on his computer was at least somewhat relevant to the state’s case against him. See Minn. R. Evid. 401.

In sum, the court did not hold that encryption is a signal of criminal activity. All it did was say that in one case, where a crucial witness testified about the presence of a computer file on a computer, that the presence of encryption software on the computer in early 2003 was "at least somewhat relevant" to the question of whether the defendant was a skilled computer user who had intentionally removed any traces of that file from the hard drive.

UPDATE: I have sanitized the facts a bit more in reponse to a reader's request. My apologies if the earlier version was more graphic than it needed to be.

Banning Kitchen Knives:

An editorial in the May 28 issue of the prestigious British Medical Journal calls for banning the sale of kitchen knives, in order to reduce fatal stabbings. My 1999 article All the Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America details some of the U.K.'s prior knife controls, including the ban on carrying any bladed instrument of defensive purposes (such carrying makes the knife an "offensive weapon" under the law), and the criminal prison term imposed on a man who carried a small knife for his job cutting newspaper bundles.

UPDATE: This seems a good opportunity to tout Bernard Levine's excellent website on U.S. knife laws. He offers the full text of all state and federal laws, plus many articles on knife history and policy. The laws of many states are much more severe than many people realize, and include bans on the possession of some types of knives, as well as bans on carrying.

Can We Talk?

Crooked Timber's Eszter Hargittai reports on some interesting research on cross-ideological conversation on the internet. Cass Sunstein, among others, suggested that the web would produce (or enhance) ideological balkanization over time. The preliminary empirical data, measuring the extent to which right-leaning blogs link to left-leaning blogs (does this count?) and vice-versa, does not (yet) bear that out. It's an interesting post (with more interesting stuff in the comments).

A Foolish Consistency

is apparently the hobgoblin of large minds, too. Todd Seavey, no small mind he, discourses on the vital importance of fantasy universe continuity. Very amusing.

A Blast from the Past:

North Korea's "Korean Central News Agency", always a good surrealistic read, is partying like it's Moscow 1949:

Kim Il Sung Is Eternal Sun of Humankind: Guinean Figure

Pyongyang, May 21 (KCNA) — Banou Keita, director general of the Kim Il Sung Institute of Agricultural Science in Guinea and chairman of the Guinean Society for the Study of the Juche Farming Method who is on a visit to the DPRK, said in an interview with KCNA that President Kim Il Sung is the eternal sun of humankind. He said that visiting the International Friendship Exhibition he was struck with admiration at the great traits of Kim Il Sung and leader Kim Jong Il. Paying deep concern to the development of agriculture in African countries, the President indicated the concrete ways of development and the Kim Il Sung Institute of Agricultural Science was established in Guinea under his deep care, he said.

Noting that he was deeply moved to see the Korean people waging a vigorous struggle to build a great prosperous powerful nation, united close around Kim Jong Il, he went on to say:

Korea has wrought world-startling miracles and innovations thanks to the invincible might of the Songun politics pursued by Kim Jong Il and the strength of the Korean people single-mindedly united around him.

The revolutionary history of Kim Il Sung will shine long as the Korean people hold Kim Jong Il in high esteem as the great leader.

What Peace Means to the Egyptian Government:

This Egyptian government website, which my wife stumbled upon by chance, tells an amazingly distorted story of the Israeli-Palestinian conflict in general, and the history of Jerusalem in particular. Of particular note is this page on the "history" of Jerusalem. It starts with the assertion that "[a]ll along human history, Jerusalem has always been an Arab Palestinian city"--quite a feat given that Palestine didn't exist as a geographic entity until Roman times, and then only briefly until the 20th century, and, as the page itself later notes, the Arabs didn't invade Jerusalem until the 7th century--and goes downhill from there (e.g., "[in] 600 years BC, the political history of the Jews had ended in Palestine"--guess that Hasmonean dynasty was just Josephus's imagination). Egypt, remember, is at "peace" with Israel. I'd hate to see what lies and distortions the government's website would come up with if they were still at war.

UPDATE: Jim Davila at PaleoJudaica discusses some of the Jerusalem's site's other inaccuracies.

Erica Jong and Me, on Embryos and President Bush:

Erica Jong's post is here; my response here.

"The 18 Things You Can't Say About Muslims in Italy":

Chris Newman posts a translation of the 18 passages that have led writer Oriana Fallaci to be criminally prosecuted in Italy for libeling Muslims. Important reading, if you're interested in international free speech issues — or in what might happen in the U.S. if those who support European-style "hate speech" bans prevail here.

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Justice Scalia is Afraid, Justice Thomas Is Not Smart Enough: Maybe I'm missing something, but that seems to be law professor Michael J. Kelly's suggested answer to the question of why Justices Scalia and Thomas object to citing foreign law in the course of interpreting the U.S. Constitution. In a guest post over at ACSBlog, Kelly describes Thomas and Scalia as "isolationists," with a "rigid preference for judicial isolationism" that blinds them to the benefits of looking abroad for new solutions. Kelly contrasts Thomas and Scalia with Justice Breyer, who seems interested in foreign law because he thinks we might learn something from the experience. Reflecting on Breyer's curiosity about foreign law, Kelly concludes:

Perhaps this intellectual curiosity is exactly what Scalia and Thomas rail against [when they object to citing foreign law]. Scalia because he is afraid of the weaknesses it could reveal in his originalist philosophy; Thomas because he has no intellectual curiosity.

So let me get this straight. Justice Scalia won't cite international law because he is afraid of defending his views of originalism? Given that Justice Scalia has been touring around the country giving lectures defending his philosophy and engaging in extensive Q-and-A sessions, often before before quite hostile audiences, that seems a rather strange suggestion. The claim that Justice Thomas "has no intellectual curiosity" is just lame, offered (of course) with no evidence or explanation. Any one who has ever had a conversation with Justice Thomas would recognize the suggestion as absurd. You can agree or disagree with Thomas's deeply-held views, of course, but to interpret profound disagreement as lack of curiosity seems a bit out-of-bounds.

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Reliance on Foreign Law -- from a Republican Louisiana State Court Judge:
Sharia! Men Oppressing Women! American Courts and Foreign Law!
What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?:...
More on Citations to Foreign Law:
Justice Scalia is Afraid, Justice Thomas Is Not Smart Enough:
Foreign Law and the Culture Wars:...
Justice Scalia endorses reliance on foreign legal practices.
Should U.S. Courts Look to Foreign Legal Decisions?
Should U.S. Courts Look to Foreign Legal Decisions?

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More on Stem Cells:
Therapeutic Cloning, Moral Principle, Gut Reactions, and Nationalism:

Reports of Blogger Troubles

remind me to again recommend PowerBlogs, the service that we now use. I've found it to be convenient and reliable, with lots of nice features and excellent technical support.

Appalling, if Accurate:

The Indianapolis Star reports:

An Indianapolis father is appealing a Marion County judge's unusual order that prohibits him and his ex-wife from exposing their child to "non-mainstream religious beliefs and rituals."

The parents practice Wicca, a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth.

Cale J. Bradford, chief judge of the Marion Superior Court, kept the unusual provision in the couple's divorce decree last year over their fierce objections, court records show. The order does not define a mainstream religion. . . .

"There is a discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages," the bureau said in its report. . . .

If the order is as reported, then it's a blatant violation of the Free Speech Clause (because it's a speech restriction), the Free Exercise Clause (because it singles out religion for special restriction), the Establishment Clause (because it prefers some religions over others, and requires the court to decide what's a "mainstream" religion), and likely the Equal Protection Clause (because the order discriminates based on religion) and the Due Process Clause (because of the order's vagueness) as well.

Courts sometimes do issue these sorts of orders when there's a battle between the parents; as I argue in this article, I think even those orders are generally unconstitutional, and especially when it comes to religious teachings, most courts have concluded that they can't be issued unless there's some evidence of likely harm to the children (rather than just abstract speculation, as seems to be the case here). But orders restricting what both parents can say to the child, issued on the court's own initiative and without either parent's support, are nearly unheard of, and would seem to be even harder to justify constitutionally.

Finally, the "avoid confusion to the child" argument is bad enough -- if accepted, then presumably it would mean that parents who are sending their child to a very liberal school (public or private) could be ordered not to teach conservative beliefs that are in tension with the liberal school's views on environmentalism, evolution, and the like. But even if restrictions genuinely and impartially aimed at avoiding confusion to the child were permissible, it's hard to see this order as applying such an evenhanded standard: Judaism and other "mainstream religions" would be quite different from what's taught at the parochial school, but they're allowed; only "non-mainstream religions" are forbidden.

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I Was Pleased To See This:
Appalling, if Accurate:

The [2004] HNN rating of presidents.--

The History News Network has published the results of an informal survey of historians and found George Bush to be a failure (tip to Instapundit) [ — a 2004 study that Instapundit recently linked, but did not say was newly published].

With Steve Calabresi, in 2000 I wrote up the results of a survey of politically balanced panels of historians, political scientists, and law professors for the Wall Street Journal, an article in Constitutional Commentary, and a chapter in Presidential Leadership (a Wall Street Journal book edited by James Taranto and Leonard Leo).

One thing became clear to me: for recent presidents, such as Bill Clinton, any ratings reflect more the political makeup of the rating panel than judgments about the president being rated.

I replicated this study this year for a revised version of Presidential Leadership due out this fall (we added economists this time).

The political split I find in rating recent presidents means that it is likely that the HNN study merely tells us what the political orientation of their pool is.

This is a measurement issue. You may think you are measuring GW Bush, but you are really measuring the politics of the panel surveyed. I am not saying that, if someone were to do a representative study of historians, they wouldn't find Bush a failure (given the political makeup of the profession, they probably would); what I am saying is that this result would be determined by the politics of the raters, not GW Bush's successes or failures.

In rating presidents, one should either politically balance panels or measure the politics of the raters and assess their impact on the ratings — or both (the informal HNN survey does neither). Otherwise, you are not measuring what you think you are measuring.

Our new 2005 study should be released in the early fall as part of a revised version of Presidential Leadership. Sorry, I can't release the results. You'll have to wait another few months to learn how a politically balanced panel of historians [and politics, economics, and law scholars] rate GW Bush.

UPDATE: Jonathan Dresner emailed me to point out that the study was published on HNN in 2004. When I first looked at the HNN report yesterday, I saw the large print that said "May 25, 2005" at the top of the HNN page and missed the smaller print that said "5-17-04" right below it. I just corrected the title of this post and also added the year to the first sentence.

More on Professays.com: I was intrigued by Eugene's post yesterday about Professays, an online service that will custom-write essays for students for a steep fee, so I went to their customer service page and submitted the following question using my university e-mail address:

I need to write a paper for school. But is it cheating if I submit a paper you guys wrote but put my name on it? Or is that okay?

Thanks!
Orin

(My factual claim was true, I should point out; I do need to write a paper for school this summer.) A few minutes later, I received the following response:

Dear Orin,

Thank you for your question. We'll be happy to work on your paper. No, it's not cheating because it's our job to help you in your studies.

Best regards,
The Professays Team

Phew, that's a relief. Not only is there no plagiarism when you use Professays, as Eugene noted, but there's no cheating when you submit their paper with your name. After all, it's their job. (Why it being their job keeps you from cheating when you submit a paper you didn't write is left as an exercise for the reader.)

Incidentally, I followed up that exchange by asking the people at Professays if I had permission to post their response on my blog. They responded:

hi,

Yes, you can post our response. Please, also, add that every student is free to choose whether he/she wants to use this service or not. There is no force or manipulation.

Best regards,
The Professays Team

Duly noted. Not only is there no plagiarism and no cheating, there is also freedom to choose. And how can anyone possibly object to that?

I have enabled comments. As always, civil and respectful comments only.

Related Posts (on one page):

More on Professays.com:
"No Plagiarism":

Wine, Baptists, and Bootleggers:

Enlightening article today on NRO by my former (at the FTC) and current (at GMU) colleague, Jerry Ellig, on the strange political bedfellows involved in the wine case (an observation that I made here awhile back as well).

The Onion on Filibusters:

The Onion weighs in.

Mazel Tov: Congrats are in order to Dan Markel of Prawfsblawg in honor of his engagement. Winning the lottery, indeed.

Oh, That's What Loving Your Country Means:

Here's a line from a Republican Party press release about the latest national security legislation:

Sixty-eight senators proved late Monday that they love their country more than they love the ideological extremists who increasingly drive the opposition to a sound national defense.

Pretty outrageous, no, that people would suggest that those who disagree with them on national defense don't adequately "love their country"? Shame on the Republicans for that one.

Or it would be a shame, if the Republicans had issued such a press release. As it happens, they didn't; the "love their country" phrase is at the start of a Boston Globe editorial:

Fourteen Senators proved late Monday that they love their country and their institution more than they love the ideological extremists who increasingly drive the national debate.

Oh, that must be OK, then -- after all, if you oppose the filibuster compromise, you must just not love your country enough.

Thanks to OpinionJournal's Best of the Web for the pointer.

Europe and Free Speech:

The European approach to speech that conveys disfavored viewpoints — often defended by many Europeans and some Americans as more "reasonable" and "flexible" than the American "absolutist" approach — is apparently on display in the criminal prosecution of Oriana Fallaci for allegedly libeling Islam. I hope Chris Newman, who has blogged a good deal about Fallaci in the past, will have more on the subject soon.

By the way, the story says "Grasso's ruling homed in on 18 sentences in the book, saying some of Fallaci's words were 'without doubt offensive to Islam and to those who practice that religious faith.'" Is there a list somewhere of those 18 sentences?

UPDATE: Chris Newman is looking for the 18 sentences, but in the meantime posts a translation of a likely relevant passage from Fallaci's book.

Related Posts (on one page):

Good Thing Our Italophone Is Working:
"The 18 Things You Can't Say About Muslims in Italy":
Europe and Free Speech:

The Innocent and the Guilty:

Slate's Human Nature says, under the subhead "Bush's hypocrisy on stem cells and the death penalty":

President Bush said he would veto [legislation to expand federal funding of human embryonic stem-cell research] because it "violates the clear standard I set four years ago. This bill would take us across a critical ethical line by creating new incentives for the ongoing destruction of emerging human life."

The standard Bush set four years ago and repeated last week is that we shouldn't take one life -- even an embryonic life -- in order to save others. Cost-benefit analysis is never sufficient grounds for the premeditated killing of civilians -- except when it comes to the death penalty. When the discussion shifts from embryos to murderers, Bush and his spokesmen routinely argue that killing is justified not because murderers deserve it, but because it's moral to take one life in order to save others. He doesn't say that Person A should be executed because Person A is a danger to society. He says that Person A should be executed because the execution will deter Person B from killing Person C.

Before Bush vetoes the stem-cell bill, maybe he should explain how his comments about stem cells in the left column below square with his comments about capital punishment in the right column [giving examples].

Well, that's interesting -- let's have a look at a speech that Slate quotes as an example of the President's comments on capital punishment:

"I happen to believe that the death penalty, when properly applied, saves lives of others. And so I'm comfortable with my beliefs that there's no contradiction between the two."

Here's a funny thing: If we start the quote a few sentences before, here's what we get (emphasis added):

Q Can you please talk about a little bit about your view of the death penalty and how that fits into your vision of a culture of life?

THE PRESIDENT: Sure. Thanks. I have been supportive of the death penalty, both as governor and President. And the difference between the case of Terry Schiavo and the case of a convicted killer is the difference between guilt and innocence. And I happen to believe that the death penalty, when properly applied, saves lives of others. And so I'm comfortable with my beliefs that there's no contradiction between the two.

Say, isn't that President Bush "explain[ing] how his comments about stem cells . . . square with his comments about capital punishment"? Maybe you aren't persuaded by it, but doesn't it absolve him of the charges of "hypocrisy" (though not of the charges of error, if you think he's mistaken)? And might it have been worthwhile to quote that sentence as well as the two afterwards, if one's complaint about the President is that he's supposedly not reconciling his supposedly inconsistent views?

Or, if you'd like, here are Scott McClellan's comments on April 4, 2005:

Q Scott, you mentioned the culture of life. When Pope John Paul II wrote about the culture of life in 1995, he described it also in terms of the death penalty, not just abortion and euthanasia. He said that in these modern times, cases where the death penalty is warranted are rare, if not nonexistent. Now, knowing that the president fully supports the death penalty, use of the death penalty, does he see it as a contradiction to use that phrase, "culture of life," and still support the death penalty, which the pope expressed . . . .

MR. MCCLELLAN: No. Let's separate out -- I mean because I spoke about this issue last week and why the president's view is the way it is, and that's because we're talking about the difference between innocent life and someone who is guilty of horrific crimes.

So why don't President Bush and his spokespeople mention this every time they discuss the death penalty? Because it's such a commonplace in our death penalty debate that it goes without saying. Virtually every American -- including, I'd wager, the author of the Human Nature column -- is well aware that this is a key argument of those who support the death penalty but not (say) infanticide or abortion. A public speaker may reasonably conclude that there's no reason to repeat such a well-understood proviso every time he makes an argument.

One can of course disagree with this position, and conclude that cost-benefit-based killings are never proper, even as to the guilty -- or that they're always proper, even as to the innocent. But one should recognize that most people (not all, I suppose, but most) who talk the talk of deterrence as to the death penalty are implicitly making the guilty-innocent distinction. One can call them wrong, if one thinks the guilty-innocent distinction doesn't suffice to justify their position. But don't call them hypocrites on the grounds that they have supposedly failed to articulate a distinction, when this distinction is widely understood to be implicit in most death penalty supporter's arguments.

And certainly don't say that "Before Bush vetoes the stem-cell bill, maybe he should explain how his comments about stem cells in the left column below square with his comments about capital punishment in the right column" when President Bush gave such an explanation in one of the very statements that you quote in the right column, immediately before the material that you quote -- and you failed to quote that explanation.

Where's The Beef?: Overt at SCOTUSBlog, occasional co-blogger Erik Jaffe is debating Hogan & Hartson partner Greg Garre on the merits of Johanns v. Livestock Marketing Association, Monday's First Amendment decision on beef promotions.

"No Plagiarism":

You're paying to plagiarize from us, of course -- but no plagiarism! So goes the slogan of ProfEssays.com, which advertises "Custom essays and book reports written exactly to your needs within 8 hours."

(Of course, what "no plagiarism" really means is "we claim that we ourselves wrote the stuff for you to plagiarize, so you won't get caught" -- an important claim for consumers of the service.)

Related Posts (on one page):

More on Professays.com:
"No Plagiarism":

Gun Prohibition One Country at a Time:

In 1924, after Lenin's death, the Communist Party of the Soviet Union introduced the concept of "socialism in one country." Recognizing that the hoped-for Communist revolutions elsewhere in Europe would not take place, the Soviet Communists set about building their version of "socialism," and then adding other nations to their "socialist" sphere of hegemony whenever possible. Today, many international gun prohibition advocates have recognized that, even though world-wide gun prohibition is not achievable in the near future, gun prohibition can be advanced in individual nations.

Single-country (or single-region) gun prohibition is called "micro-disarmament." Success stories of micro-disarmament are a very important part of international gun prohibition advocacy. In Microdisarmament: The Consequences for Public Safety and Human Rights, my co-authors Paul Gallant, Joanne Eisen, and I examine six case studies of microdisarmament. In three of those cases--Albania, Bougainville, and Cambodia--microdisarmament has seriously harmed human rights. Limited disarmament in rural Guatemala was followed by a crime wave, but it is not clear that the former caused the latter. In San Miguelito, Panamana, there was a successful program to convince youthful gangsters to surrender their guns, in exchange for participation in a government jobs program. In Mali, northern tribes rebelled against the corrupt central government which starved and oppressed them. After the central kleptocarcy was replaced with a democratic government, the new government recognized that the northern rebellion could not be violently defeated; when the new government agreed to respect the rights of the northern tribes, the northern tribes laid down their arms. In Mali, disarmament was not the cause of peace, but rather the result of a successful war for indigenous self-determination.

The Microdisarmament article will appear in a forthcoming symposium on firearms policy in the UMKC Law Review. The PDF version available on the web is nearly final, except for some cross-references in footnotes, and a few other small items.

UPDATE: Over at Prawfblawg, Kaimi Wenger objects to my introducing the above entry with the Soviet analogy. Wenger writes, "every political group on the face of the planet uses incrementalist strategies at various times." Thus, my introduction "is the equivalent of saying 'Lenin used pen and paper, and so does Handgun Control, Inc.'" Wenger argues that I had no good "justification for tying together these two entities — one of which invokes strong negative connotations."

Here's why I think the comparison is apt. It’s true that the large majority of cases of trying to change people’s conditions of living proceed incrementally. So it would be possible to say that “Fabian socialist tactics” are used by the Brady Campaign, by the NRA, and by lots and lots of interest groups, in very diverse settings.

The unusual case is trying to accomplish a radical change in a very short period of time, without going through the long evolutionary process of gradual intermediate steps. For example, the Bolsheviks tried to move Russia from a quasi-feudal economy to a socialist economy almost instantly—without going through the long intermediate phases of capitalist growth and then capitalist degeneration which Marx had argued was necessary before the emergenge of socialism.

Trying to achieve a massive change in social conditions, in one quantum step, is notable for its rarity. The early U.S.S.R. attempted to achieve in a few years a transition from feudalism to capitalism which Marx had believed would take decades. Similarly, microdisarmament campaigns attempt to change--in a few months--a society which is awash in firearms into a society with no (non-goverment) firearms. Microdisarmament--by attempting a rapid quantum change--uses a strategy opposite to the strategy typically employed by gun control advocates in western democracies. For example, it took the United Kingdom nearly a century to change from a society where there were no gun controls to a society which is fairly close to de facto prohibition. Had the British disarmament strategists attempted in 1911 to make sure that Britain was "gun-free" by 1912, they would have been attempting a transformation as bold as what the microdisarmament campaigners are attempting in the Third World.

The second parallel--and the main reason I chose the quote in the introduction--was that the Russian leadership, before settling on the policy of "socialism in one country", had a vigorous internal debate about whether socialism could survive in a single country. Before 1924, the mainstream Soviet Communist view was that if the rest of Europe did not go Communist, then the U.S.S.R. would not be able to survive as a Communist nation. The "socialism in one country" advocates stood for the contrarian position that the U.S.S.R. could survive as a socialist state even if there were no other socialist countries in the world.

Similarly, some gun prohibition advocates believe that gun prohibition in one country is futile, as long as other countries have lax gun laws. This is a worldwide version of the common U.S. argument that states with strict gun laws have their laws undermined by loose gun laws in other states.

Microdisarmament takes the contrarian view--that gun prohibition can succeed in a single country, despite the absence of worldwide gun controls.

Hence, I think there are useful comparisons between the idea of socialisn in one country and gun prohibition in one country; both involve quantum changes in social conditions in one nation, accomplished notwithstanding the significant risk that conditions in other countries could defeat the attempted change. That said, I should also state the obvious: the supporters of the international gun prohibition movement are a very diverse lot. Some of them, including almost all of their American supporters, sincerely believe in democracy and human rights. Others--such as the government of Iran--apparently see international gun prohibition as a method of shielding their totalitarian regimes from popular revolution.

Kmiec on the Deal:

Pepperdine law professor Douglas Kmiec doesn't like the judicial nominations deal. He thinks it lacks principle and betrays the constitutional design. The founders would have disapproved of judicial filibusters, he argues, noting that "the framers specifically considered and rejected in the 1787 convention a 2/3ds Senate concurrence for judicial appointments." Kmiec further writes:

Anyone critical of the filibuster for denying the entire Senate its constitutional role should also be honest. Democrats were the first to deploy the filibuster in a grand way against the judiciary, but both parties had a myriad of alternative ways in which presidential nominations were prevented from reaching the floor at all. All these practices should be condemned as constitutional defaults. The default comes at the sacrifice of accountability, or what is popularly termed transparency. Filibusters denying full-floor action or bottling up nominees in committee both dangerously, as Hamilton warned, "shut up in private [and make] impenetrable to the public eye..." the judicial-selection process. . . .
When a minority of the Senate can delay or obstruct a fully-capable nominee by reason of partisan or ideological disagreement, "factions," as Madison called them, have taken over and will erode the independence of the judiciary.

Related Posts (on one page):

Kmiec on the Deal:
Judicial Obstruction -- Three Different Kinds:

Owen not "Most Ideologically Extreme":

Today's 56-43 confirmation vote for Justice Priscilla Owen to the U.S. Court of Appeals for the Fifth Circuit provides further evidence that the oft-repeated claim that Senate Democrats only filibustered the "most ideologically extreme" of President Bush's judicial nominees is false. As Howard Bashman observes, two other Bush nominees — Dennis Shedd and Jeffrey Sutton — squeaked by on closer confirmation votes without ever being subject to a filibuster.

UPDATE: A reader comments that the comparison may not be valid. After all, there were more Democratics Senators when Shedd and Sutton were confirmed, and yet Owen received the same number of Democratic votes (2) as Jeffrey Sutton. In addition, Owen is only the second Bush judicial nominee to have a Republican Senator vote against her. Nonetheless, Justice Owen was supported by a greater percentage of the Democratic caucus than was Sutton, and she was supported by two Senators (Byrd and Landrieu) who voted against Sutton's confirmation. Then again, the two Dems who voted for Sutton (Feinstein and Nelson) voted against Owen.

Therapeutic Cloning, Moral Principle, Gut Reactions, and Nationalism:

I post on this warily, because I'm not an expert on the technology of therapeutic cloning. I can't, for instance, speak with any confidence about whether embryonic stem cells would end up being superior to adult stem cells that can be gotten without creating new embryos. Also, while I assume for the purposes of the post that the ban on federal funding of therapeutic cloning research would handicap such research (as I think it's intended to), I'm not positive that this is so (though I do think that it's likely perceived to be so, which is what's important for my political predictions below). Still, I thought I'd pass along some tentative thoughts I had about the subject, and particularly about what is likely to happen, rather than what should happen.

I understand people's misgivings about creating human embryos for the purpose of harvesting their cells and then destroying them. It's viscerally troubling (at least to me); and it may well change people's attitudes in a way that makes still more troubling things (e.g., creating clones to harvest organs, and the like) possible. And I understand why people wouldn't just find it troubling and potentially dangerous, but per se immoral (though I don't agree with this view).

But let's say that (1) the Koreans or someone else discover that (2) therapeutic cloning is indeed medically effective at curing many dangerous diseases, and (3) it is more effective than any alternatives that don't involve therapeutic cloning. This will of course change the moral calculus in some measure: There are moral costs to foregoing the technology as well as potential moral costs to using it.

And, perhaps as importantly, it seems to me that it will change the political calculus dramatically, for two reasons. First, my sense is that while some people feel very strongly about abstract principles and long-term consequences, most people are much more moved by the tangible and the visible. An ultrasound of a fetus that is 4 months past conception shows something that's visibly like a baby; I think that's part of why many people have misgivings about second-trimester abortions. But when most people look at a clump of cells, they don't have the same visceral reaction. Some or even many might have an intellectual reaction, based on their moral views or their concerns about slippery slopes. But I doubt most people feel an embryo's humanity in their gut the same way that most people feel a born child's — or even an ultrasound-visible mature fetus's — humanity in our guts.

Second is the nationalism. Americans like to lead the world, in science, in wealth, in influence. If people start flocking to Korea to get cured, if Koreans start getting the key patents and making billions from exploiting them (perhaps even in the U.S., but certainly in the rest of the world), and if other countries compete with Korea while the U.S. is left behind, will enough Americans really hold the line on their abstract moral principles to sustain an American funding ban? So while America's religious sensibilities may cut in favor of restrictions on therapeutic cloning (or at least restrictions on federally funding it), America's sense of its place in the world will cut against such restrictions.

And the two points reinforce each other, it seems to me. If therapeutic cloning were clearly, viscerally felt to be evil — for instance, if it involved the killing of born babies — then I think more people would hold the line on the moral issue. (They may also have less fear that the U.S. will be falling behind, because then there'll be more likelihood that the U.S. and other countries could stop this practice, even overseas.) But if I'm right that most people, even many who disapprove of therapeutic cloning, don't oppose it that deeply, then the nationalistic concerns may have much more of an effect.

As I mentioned at the outset, I'm not making a claim here about what should be done. Perhaps my post describes a bug in human moral thinking, not a feature. Perhaps we should feel abstract moral concerns as deeply as (or more deeply than) we feel our visceral reactions. And perhaps we should quite ignore nationalistic and economic concerns when it comes to matters such as this. But whatever should be the case, I think that — on the assumptions I give above — the political dynamic is very much on the side of the pro-therapeutic-cloning forces.

UPDATE: Just to make things clear, what I say above of course goes even more strongly for proposals to actually outlaw (rather than simply not fund) therapeutic cloning.

Related Posts (on one page):

More on Stem Cells:
Therapeutic Cloning, Moral Principle, Gut Reactions, and Nationalism:

Your Greatest Weakness: A standard question lots of employers use in job interviews asks the candidate, "What is your greatest weakness?" Candidates often opt for the strength-as-weakness non-answer, such as "I'm a perfectionist," or relatedly, "I work too hard." Few if any answer honestly ("I'll cut corners if you let me," "I treat people beneath me like dirt," etc.). Those that do probably don't get the job.

So here are my questions for employers out there. First, what is the purpose of asking job candidates to identify their greatest weakness? And second, what is the best kind of answer? I have enabled comments. As always, civil and respectful comments only.

Women, Plural and Singular:

Stephen Dubner and Steven Levitt have a very interesting short piece in Slate, which describes two interesting and intertwined stories, one from demography and one from psychology; I highly recommend it.

Proposed next project: Explaining why some Stephens are Stevens (or vice versa).

Linguistic Activism Organizations:

An occasional Volokh Conspiracy feature describing these important advocacy groups (or should-be groups), which tirelessly work to improve our language. Today's featured group:

Diaeresis Defense, an eleëmosynary reëducation coöperative.

Favorite artists: The Brontës.

Least favorite artists (winners of Diaeresis Defense's "Ersatz Dieresis Award"): Mötley Crüe.

Slogan: "Two vowels, two sounds, two dots."

Next week's feature: The Ligature League.

Blog Post Solves Murder: The details are here, and a media account is here. Hat tip: Instapundit.

Extra credit question for law students and litigators: Is a computer printout of the blog post admissible at trial? Comments enabled for your answers.

Timothy Flanigan Nominated for #2 Position At DOJ: Vanessa Blum has the scoop.

Opposition to Roberts:

I would add four additional points to the discussion of potential opposition to John Roberts:

1) Roberts is an outstanding lawyer, excellent judge, and impressive individual. He is the sort of person, irrespective of ideology, who President's should nominate to the High Court (and those who have worked with him generally feel this way, even when they disagree profoundly with his legal views).

2) Roberts was initially nominated to the D.C. Circuit by the first President Bush, and the Democratic Senate refused to move the nomination. Some believe this was due to concern for the overall "balance" of the D.C. Circuit, or perhaps it languished as nominations often due in the last year or so of a President's term. Either way, he was nominated back then, and never confirmed.

3) Activist groups have already begun to misrepresent John Roberts record on various cases. For instance, he has been accused of voting to overturn the Endangered Species Act. In actuality, Roberts dissented from a denial of en banc review because, he stated, the panel decision was in conflict with those of other circuits. His opinion did not challenge the panels conclusion. Rather, he argued that there were reasons to be concerened about the conflicting (indeed, incompatible) rationales adopted by different circuits, and that this merited en banc review.

4) Last, and most distressingly, the leaders of various liberal activist groups are already on record stating that they would urge a filibuster of Roberts, even if he were nominated to replace Rehnquist. While I doubt (hope) this would not derail his confirmation, I suspect it would sway at least a few Senators.

Related Posts (on one page):

Would John Roberts Be A Controversial Nominee?: My co-blogger Jim raises some excellent points about likely opposition to John Roberts. Perhaps he's right; I'm not enough of an expert in this stuff to know for sure. I do have two quick and hopefully not-too-amateurish thoughts in response, though:

  1) I'm not sure what to make of opposition from the Alliance for Justice and other interest groups, as my understanding is that such groups generally oppose most or all of a Republican President's appellate nominees as a matter of course. The question is, to what extent does opposition among advocacy groups such as the Alliance for Justice necessarily mean opposition in the Senate?

  2) My understanding is that Roberts was opposed more than some other nominees in 2001 partly because he was understood as a strong Supreme Court contender if he made it on to the Court of Appeals. Opposing parties often try to keep Supreme Court contenders off the Court of Appeals to shrink the President's farm team, as evidenced by Republican opposition to the elevation of Sonia Sotomayor to the Second Circuit in 1998. Given that, I'm not sure Roberts would encounter similar opposition if he were nominated to the Supreme Court (especially to replace Rehquist).

  In any event, I have waded in far beyond my expertise already. VC readers, what are your thoughts? As always, civil and respectful comments only.

Related Posts (on one page):

NBC and AP reporting that John Roberts is the nominee.--
Opposition to Roberts:
Would John Roberts Be A Controversial Nominee?:
More On 100-0 Nominees:
John Roberts and 100-0 Support.--
Can we trust the Senators to live up to THE DEAL?--
100-0 Nominees?:

More On 100-0 Nominees: While I'm on the topic of 100-0 nominees, another name they should be talking about over at the Debate Club is David F. Levi, Chief Judge of the Eastern District of California. Levi is a moderate Republican Bush I appointee who is brilliant and universally admired; it's a shame he's not at least on the list of nominees for the Ninth Circuit.

Related Posts (on one page):

John Roberts and 100-0 Support.--

My co-blogger Orin is floating John Roberts as someone who might be able to get consensus support in the Senate (if not the 100-0 support that is being debated at the Debate Club). As my last post indicated, I have a more pessimistic view of whether opposition to a Bush Supreme Court nominee could be avoided, no matter whom Bush appointed.

Roberts was nominated for the DC Circuit in 2001 and was blocked for two years in the Senate Judiciary Committee, finally getting voted out of committee in May 2003. His committee vote was strong (16-3), but not unanimous. The Senate confirmation was without a roll call vote.

One has only to read the Alliance for Justice reports and press releases on Roberts to realize that, like almost any other Bush nominee, he would face a buzzsaw if nominated to the Supreme Court.

On its website, the National Council of Jewish Women lists the following organizations as opposing Roberts for the federal judiciary in 2003:

Alliance for Justice
Americans for Democratic Action
Feminist Majority
Leadership Conference on Civil Rights
NARAL Pro-Choice America
National Family Planning and Reproductive Health Association
National Council of Jewish Women
National Organization for Women
NOW Legal Defense and Education Fund

Indeed, Roberts was blocked when the first President Bush tried to appoint Roberts. As the Alliance for Justice puts it:

President George H.W. Bush nominated Mr. Roberts to the D.C. Circuit, but he was considered by some on the Senate Judiciary Committee to be too extreme in his views, and his nomination lapsed. He was nominated by President George W. Bush to the same seat in May 2001.

Here is the opening of the Alliance's Report, suggesting how someone whom some reasonable people might view as uncontroversial can depicted as unfit for even the DC Circuit, let alone the Supreme Court:

John G. Roberts, nominated by President Bush to a seat on the United States Court of Appeals for the D.C. Circuit, has a record of hostility to the rights of women and minorities. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the role of federal courts in protecting the environment. The Alliance for Justice opposes his nomination to the D.C. Circuit.

Although Mr. Roberts is indisputably a very capable lawyer, that alone does not qualify him for such a prestigious and critical post. As a group of over 300 law professors stated in a 2001 letter to the Senate,1a lifetime appointment to the federal bench is a privilege that comes with great responsibility and requires much more. Every nominee bears the burden of showing that he or she respects and pledges to protect the progress made in the areas of civil rights and liberties, the environment, and Congress’ constitutional role in protecting the health and safety of all Americans. Mr. Roberts’ record, particularly his record as a political appointee, argues strongly that he would not do so.

While working under Presidents Reagan and Bush, Mr. Roberts supported a hard-line, anti-civil rights policy that opposed affirmative action, would have made it nearly impossible for minorities to prove a violation of the Voting Rights Act and would have “resegregated” America’s public schools. He also took strongly anti-choice positions in two Supreme Court cases, one that severely restricted the ability of poor women to gain information about abortion services, and another that took away a key means for women and clinics to combat anti-abortion zealots. [In rereading this post after posting it, I think that a personal disclosure might be advisable. I consulted pro bono for NOW on the case (Scheidler) that I think is being referred to here.]

Finally, Mr. Roberts is being considered for lifetime tenure on a court that is only one step below the U.S. Supreme Court and is acknowledged to be the second most important court in the country. His nomination must be considered in light of the special significance of that court. Moreover, Judiciary Committee Chairman Hatch’s insistence on scheduling three controversial Circuit Court nominees, including Mr. Roberts, for confirmationhearings on a single day ensured that senators had no meaningful opportunity to question Mr. Roberts about his views on a number of critical issues. The Alliance for Justice urges the Senate to reject his confirmation.

This is what I was talking about in my last post. The 7 Democrats signing the deal on filibusters are in effect promising to stand up to what will be incredible pressure from organizations like those who opposed Roberts before, organizations such as the Leadership Conference on Civil Rights, the Alliance for Justice, the ADA, and NOW [for whom I have done work pro bono]. Can the senators live up to their promise?

Related Posts (on one page):

NBC and AP reporting that John Roberts is the nominee.--
Opposition to Roberts:
Would John Roberts Be A Controversial Nominee?:
More On 100-0 Nominees:
John Roberts and 100-0 Support.--
Can we trust the Senators to live up to THE DEAL?--
100-0 Nominees?:

Yogi the Pug: Is America a great country or what? Where else could a dog with a busted tongue become a cult hero with his own calendar? (Hat tip: Washington Socialites)

Request for Advice:

I'm creating a Religion Clauses textbook, of about 400-450 softbound pages, for Foundation Press. I'm starting with the Religion Clauses materials from my First Amendment textbook -- cases, statutes, problems (the book is organized to work with either the problem method or the case method), and policy argument discussions -- but I can also add some extra material that couldn't fit in the big all-First-Amendment book.

If you've taught a class on the Religion Clauses, or if you've taken such a class and have thought about what worked well in the class and what was missing, and you'd be kind enough to skim over my draft table of contents and recommend what material might be worth including, I'd be very much obliged. Just post your thoughts in the comments below, please. Thanks!

Can we trust the Senators to live up to THE DEAL?--

I share the common ambivalence to the new deal on filibusters.

Before the filibuster deal, I thought that some of the pro-Bush defenders of the filibuster were being unrealistic. The assumption seemed to be that, if Bush nominated a moderate or just an ordinary conservative for the Supreme Court, then there wouldn’t be a filibuster, but if he appointed an extremist, then there would be. Further, the thinking went that, if the Democrats in the Senate filibustered anyone but an extremist, they would pay for it with the public.

Since my politics are well to the left of anyone Bush would seriously consider for the Supreme Court, that scenario would be an attractive prospect to me — if it were true.

But — before THE DEAL — I thought that anyone that Bush could appoint would be filibustered, no matter how moderate. He or she could be a decent, reserved, open-minded, unprejudiced, intelligent conservative such as Judge Michael McConnell. Or he could even be a judge who was pro-affirmative action and (in his opinions, at least) pro-abortion such as Alberto Gonzales. Indeed, a high staffer with one of the major public interest groups that the Democrats rely on to evaluate judicial candidates told me to expect an attempt to filibuster Gonzales if he is appointed to the Court, even though she admitted that Gonzales was more liberal than anyone else that Bush could conceivably appoint. In other words, I expected that if Bush appointed someone closer to the political center than Clinton’s nomination of Ruth Bader Ginsburg, that nominee would nonetheless be filibustered as an extremist. (By the way, McConnell in particular would seem to be an almost ideal candidate for Chief Justice, with a calm, responsible, principled manner that should smooth over ideological differences on the Court. According to those who know John Roberts, he would be another.)

Further, once the TV ads would start running portraying Bush’s nominee as not only extreme, but also mean and corrupt, it would be the Republicans who would be under fire for supporting him or her, not the Democrats. And, unlike a political campaign, the nominee would be discouraged from making the rounds of talk shows to campaign for the office. (Imagine in the last election if we had only pro-Bush or only pro-Kerry ads! Getting a supermajority of 60% in Congress is difficult if you can’t get even get a majority of the public first.)

Of course, before THE DEAL, a Republican could still support the right to filibuster nominees without believing that Democratic senators would filibuster only an extremist, but I thought the factual basis of some principled pro-filibuster advocates (that a filibuster was not inevitable) was wrong, especially once a public smear campaign was in full force against any nominee that Bush put forward. (Of course, the strongest argument against repealing the 60-vote cloture rule is that the Senate’s rules themselves require a supermajority to change them — whether that rule must be followed if it obstructs the obligation to “advise and consent” is a closer question.)

So how does THE DEAL change all this? I don’t know, but it might. I no longer view a filibuster as a near certainty; it depends on the honesty and courage of the Democratic signatories.

If THE DEAL merely postpones a showdown until Bush nominates a new justice for the Supreme Court, then it is a big mistake for Republicans. It all depends on what “extraordinary circumstances” means. If the threshold is that Bush has nominated someone that People for the American Way and the Alliance for Justice say is an extremist, someone whom we are told is WAY OUT OF THE POLITICAL MAINSTREAM, then we can be virtually certain that the Democrats will have the “extraordinary circumstances” that they need to filibuster anyone Bush would appoint to the Supreme Court. Yet almost any judge that Bush would propose for the Court would probably be closer to the political center than the typical activist at People for the American Way or the Alliance for Justice.

But if the Democratic senators signing THE DEAL will really agree to cut off a filibuster if Bush nominates someone like most of the names that have been floated so far, then THE DEAL will have accomplished its purpose. The 7 Democrats are saying in effect: “Trust us. If you won’t abolish the filibuster, we can stand up to the demagoguery coming from our friends and allies on particular nominees for the federal courts.”

If those Democratic senators break their promises and give in to the pressure to filibuster ordinary conservatives, they may not pay a price with their constituents (the smear campaign will give them cover), but commentators, press pundits, bloggers, and fellow senators — indeed, most of us in the intellectual chattering class — will know that the solemn word of these men and women can’t be trusted. And the senators themselves will have to look themselves in the mirror every morning. For all of our sakes, let’s hope they value clear consciences. (Yes, I know that Robert Byrd is a signatory, but I will leave his personal characteristics aside in this post, trying to focus mainly on the other 6 Democrats.)

Based on recent behavior in the Senate, I’m pessimistic, but not entirely devoid of hope.

By the way, the 7 Democratic senators are Robert Byrd, Daniel Inouye, Mary Landrieu, Joseph Lieberman, Ben Nelson, Mark Pryor, and Ken Salazar. The 7 Republican senators are Lincoln Chafee, Susan Collins, Mike DeWine, Lindsey Graham, John McCain, Olympia Snowe, and John Warner.

Related Posts (on one page):

NBC and AP reporting that John Roberts is the nominee.--
Opposition to Roberts:
Would John Roberts Be A Controversial Nominee?:
More On 100-0 Nominees:
John Roberts and 100-0 Support.--
Can we trust the Senators to live up to THE DEAL?--
100-0 Nominees?:

100-0 Nominees?: Over at Legal Affairs, the Debate Club is considering whether there are any nominees to the U.S. Supreme Court who are so outstanding that they would receive a 100-0 vote in the Senate. The goal is to find someone who is "approved by conservatives, lauded by moderates, and acceptable to liberals." The name that comes to mind to me is John Roberts of the D.C. Circuit. I am repeatedly struck by how people from across the political spectrum are tremendously impressed by him and his work. Especially as a replacement for a conservative Chief, Roberts seems like the best shot at a consensus candidate. Unfortunately, neither of the two participants to the Debate Club exchange have mentioned Roberts; Arkadi Gerney is only offering names that conservatives would obviously reject, and Carl Tobias so far has only mentioned judges who are dead.

Related Posts (on one page):

Cautionary Thoughts About Legalizing Assisted Suicide:

Neil Gorsuch, who's a very smart and thoughtful fellow, has a very interesting article on the subject; I read it and very much liked it, and he and the Wisconsin Law Review kindly agreed to let me post it here I'm not an expert on the subject, nor do I have a definite view on the proper result. But I've done a bit of reading on the subject, and Neil's piece strikes me as much worth reading and considering: Though it doesn't prove (or purport to prove) that assisting suicide ought to remain illegal, the concerns that it raises strike me as quite important.

Do We Expect Foreign Judges to Follow the U.S. Supreme Court?: In a recent speech, Justice Stevens made an interesting point about the question of whether U.S. judges should consider foreign law when interpreting the United States Constitution:

Judges in this country are right to consider the practices in other countries, [Stevens contended].
"If we expect them to listen to us, we should at least be willing to listen to what they have to say to us," he said.

I wonder, who exactly is "us"? And who said that "we" are expecting other countries — and by other countries, I gather Stevens means the judges of other countries — to listen to "us"? I'm intrigued. The Supreme Court's website has not posted the full text of the speech, and it's hard to tell exactly what Stevens had in mind from this snippet alone. But it's interesting to ponder the possibility that Stevens may be concerned with whether foreign judges are following his decisions in their own countries — and that he may think it appropriate to cite foreign law to increase the U.S. Supreme Court's influence (and, by extension, his own) abroad.

Thanks to ACSBlog for the link.

Morality and Law: There is a very interesting new project at the University of Chicago called the Carceral Notebooks. The project is interesting not only because of its general topic—the intersection of law and morality—but also because it is student authored and being published electronically and printed without a commercial publisher. Of particular interest to me is the essay on Harm and Morality Revisited by Mark D. Davis. This paragraph from the introductory essay by U of C law professor Bernard Harcourt seems to describe the scope of the project:

Where do we stake the boundary of the criminal law—or, more importantly, how? How do we decide what to punish? Do we distribute these vices, these recreations, these conducts—what do we even call these things?—into two categories, the passable and the penal, and then carve some limiting principle to distinguish the two? Are we, in the very process, merely concocting some permeable line—a Maginot line—to police the criminal frontier? Or do we formulate the limiting principle first and then deploy it to parse these things? Or do we do a little of both, going back and forth, and back again, from moral intuition to principled ideal? Do we lean more towards one or the other? Do we peak behind the curtain, every once in a while, to make sure that our product is coherent, aesthetically pleasing, perhaps convincing? And how is it exactly that the boundaries change over time? What is it that pushes one of these things, previously criminalized—fornication, perhaps, or prostitution, or state lotteries—from the penal category to the permissible? How is it that the edifice that our parents constructed—and their parents and grandparents before them—shifts, settles, collapses in some places, is fortified in others?

The line between morality (which should be a matter of both individual choice and social reprobation) and justice (which should be a matter of legal coercion) is a difficult one to draw, but all but totalitarian political philosophies must do so. While many just punt, the attraction of this project is its willingness to address the topic straight on. (I have offered my views on this topic in The Structure of Liberty: Justice and the Rule of Law and, most recently, in The Moral Foundations of Modern Libertarianism.)

Academic Navel-Gazing, or, Why I Write: Inspired by a recent symposium published in the San Diego Law Review on why law professors often write much more scholarship than they need for tenure, promotion and the like, a few blogging law profs are taking a crack at the question of why they write. Paul Horwitz started things off with a thoughtful post and a solicitation for responses, Michael Froomkin joined in with an excellent take, and Eric Muller has promised something soon.

  I'm probably too new at legal academia to have a very good answer to this question, but I thought I would give it a try. Two motivations for writing come to mind, at least to the extent I'm self-aware enough to understand my own motivations. The first and probably primary motivation is the simple enjoyment of playing with and working through a tough problem. I often come across a murky question or area that I think is getting in the way of clear thinking about a legal issue, and I use the excuse of article-writing as a way of making myself confront and attempt to address or resolve it (or at least articulate why it can't be easily addressed or resolved).

  Specifically, I often use the first half of the article to make myself identify and articulate the problem, and then use the second half to ponder and ultimately identify my own best solution. One corollary to this is that usually I don't know where I'm going when I start an article; I usually write the first half that sets up the problem before I have any idea of what conclusion or normative proposal I might offer. (When I'm writing, I often have conversations like this: Q: "What are you working on?" A: "An article about x." Q: "What's your take on it?" A: "It's only half written. I don't know yet.") My favorite part of the writing process is when I finally figure out my take and can imagine how the rest of the article will unfold.

  Other articles seem to come about for different reasons. Sometimes I write when I'm convinced that everyone else is misunderstanding something important. I write out of a delusional sense that I have reached some insight others are missing; that I can share that insight with others in an article; that others will be persuaded; and that somehow in some way the world will be a better place because of it. These articles are more goal-oriented. I start out wanting to make a particular argument, and look for evidence in support of that argument. I'm not sure if readers can sense the difference between the two, or which on average is better. (If you're curious, here is a work-through-while-writing article, and here is a goal-oriented article.) But it feels different when I'm writing the goal-oriented pieces. It's more like brief-writing than just exploring. I suppose both types of writing have their place.

  Finally, stepping back a bit I'm reminded of some favorite quips from Justice Holmes's letters about why he enjoyed his work. None of us are Holmes, obviously, but I think his take captures something important. Or at least something that reasonates with me. Here are two among many, taken from the Posner-edited book The Essential Holmes: "Why? Why do I desire to win my game of solitaire? A foolish question, to which the only answer is that you are up against it. Accept the inevitable and do your damndest." (p44, from a 1927 letter to Harold Laski) And my favorite, a remark on living: "I mean to do as much of it as I can. What a divine gift is fire." (p9, from a 1922 letter to Frederick Pollock).

Alphecca's Excellent News Round-up:

Alphecca, a self-described "gay gun nut in Vermont" compiles a weekly news collection of stories on firearms rights and media bias thereon. Today's compilation is especially interesting. It includes:

An Illinois bill, which may become law over the Governor's veto, that would close the so-called "gun show loophole" and abolish state police record-keeping on firearms transactions by law-abiding gun owners.
The Stonewall Second Amendment Society, a Utah gay gun rights groups which is fighting some anti-diversity bigots who want to keep the group from marching in Salt Lake City's gay rights parade.
The full text of Secretary Rice's recent explanation of her adamant support for the Second Amendment--and NPR's analysis thereof.

And there's much, much more. If you're interested in lively blogging on Second Amendment issues, Alphecca is an outstanding site.

New York Times Columnist Comes out In Favor of Blogs, at least when they're in China. A fascinating essay, actually.

The Supreme Court's International Treaty / Habeas Corpus Case (Medellin):

Julian Ku (Opinion Juris) discusses it.

Related Posts (on one page):

The Supreme Court's International Treaty / Habeas Corpus Case (Medellin):
Medellin v. Dretke:

VC Happy Hour Set For June 9th: Many thanks to readers who responded to my query about a Volokh Conspiracy Happy Hour. I received something like 50 or 60 e-mails, each representing anywhere from 1 to 11 attendees. Sounds like it should be a pretty fun event.

  As of right now, I've settled on a date but not a place. The date of the 1st official VC happy hour will be Thursday, June 9. The place is not yet set, but will be somewhere in downtown DC in the Metro Center/Foggy Bottom area. (Oh, and my apologies to readers who would like to attend but don't live anywhere near DC; physical space being what it is, our options are limited.)

  I've also decided that we'll be hosting not just one happy hour, but two. A bunch of friends of the VC are coming to DC later in the summer (cough, cough), and to accomodate as many people as possible we're going to have a second DC happy hour in late July or early August.

  Hope to see you all — okay, not all, as there isn't a bar big enough to fit everyone, but lots of you — on the 9th. I'll post about the place and time as soon as I know the details.

Wisdom from the Old Country:

My father passed it along; I don't know the source:

We die as we are born: without hair, without teeth, and without illusions.

Odd Language Choice:

At a McDonald's in Detroit, where he was traveling for business, my father got a drink cup with "I'm lovin' it" written in five languages -- English, Spanish, French, German, and Ukrainian ("ya tse l'ubl'u," to give the transliteration). Does anyone know, or suspect based on substantial evidence (rather than just sheer guesswork), why Ukrainian was the language chosen to be included?

Public Trust in the Judicial System:

Orin points to a Boston Globe article that starts with:

The chief justice of the [Massachusetts] Supreme Judicial Court said yesterday that rhetoric about judges destroying the country and the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.

Justice Margaret H. Marshall, who has been widely criticized as a judicial activist since writing the court's 2003 decision allowing same-sex marriage, spoke before a crowd of 7,000 at Brandeis University's 54th commencement. . . .

[Marshall] said she is not concerned about criticism of individual judges or decisions, but about "attacks leveled at the very foundation of our legal system — the principle that judges should decide each case on its merits . . . independent of outside influence."

"I worry when people of influence use vague, loaded terms like 'judicial activism' to skew public debate or to intimidate judges," Marshall said. "I worry when judicial independence is seen as a problem to be solved and not a value to be cherished."

Well, I'm not wild about "vague, loaded terms" like "judicial activism," either; I think complains about "activism" are often quite imprecise, and conceal more than they reveal. Yet "judicial independence" is often a "vague, loaded term," too. Judges should surely be independent of some things — for instance, the risk that they'll be fired by political figures — but not from other things, such as public criticism, and decisions being overturned by constitutional amendment. Other questions, such as whether judges should be independent of voter reaction, through recalls or other means of removal through the ballotbox, are more complex, but they can hardly be resolved either through slogans such as "judicial activism" or "judicial independence."

Nor am I particularly moved simply by claims that criticism is "threatening public trust in the judicial system." It seems to me that many judicial decisions — such as the Massachusetts Supreme Judicial Court's same-sex marriage decision — are threatening public trust in the judicial system, too. That itself doesn't make the decisions wrong: Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system.

But the same applies to public criticism; that criticism undermines public trust in the judicial system doesn't make it wrong. And while "gratuitious attacks on judges" (which the chief justice particularly criticized) are by definition unsound (in this context, I take it that "gratuitious" means "unfounded"), an argument based on this claim is assuming the conclusion: Surely critics of the courts would say their criticisms are quite well-founded, and not gratuitous. Now I suspect that the chief justice's full argument was more sophisticated and thorough than that, but the Boston Globe's seemingly quite friendly rendition of the argument struck me as unpersuasive.

Finally, one item that particularly stood out (emphasis mine):

Marshall began with a joke about the blue and white balloons suspended from the Gosman Sports Center ceiling. She said she liked the colors, which included "no red states" — winning a big laugh.

Yes, I realize that it's a joke; but as with many jokes, I take it has an element of truth to it. Do you suppose that when a chief justice of a nominally nonpartisan state court jokes at a commencement that she's pleased that Massachusetts votes Democratic, that too might help undermine "Americans' 'trust in the integrity of our judicial system"?

Blog Seminar: Crooked Timber is hosting a blog seminar on Freakonomics. The regular Timberites are joined by Steven Levitt himself, plus Tim Harford and our occasional co-blogger Tyler Cowen. The initial posts are up; let the commenting begin!

Humor From An Unexpected Source: Check out this attorney recuiting page from the website of the Office of General Counsel at the Central Intelligence Agency. Not bad.

Teenage Boys Beware:

In Indiana and Tennessee, the crime of public nudity is defined to include (emphasis added)

the showing of the human male or female genitals, pubic area, or [Indiana only:] buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

So if you're in a public place and find yourself with an erection, you are legally obligated to sit down until it goes away.

The statutes are Indiana Code 35-45-4-1 and Tennessee Code Ann. 7-51-1114. Mississippi law (Miss. Code 19-5-103) also authorizes some counties to enact a similar prohibition; there's currently a bill pending in the legislature (House Bill No. 1480) that would extend the authorization to all counties.

It's a Crime for Cable Companies to Offer HBO in Michigan,

and HBO executives are themselves criminals; many actors probably are, too.

Pretty strange, but that's the law, unless a Michigan Court of Appeals decision handed down last week is overturned. Here's why.

Timothy Huffman produced a TV show for a Grand Rapids public access cable channel; the show included a comedy routine (or perhaps an attempt at a comedy routine) in which the "star" was a "flaccid penis and testicles marked with facial features." Huffman was then prosecuted — but not for obscenity, since there's no reason to think the presentation was in any way erotic (which is generally a requirement for obscenity prosecutions; not all erotic material is unprotected obscenity, but to be unprotected obscenity material must be erotic).

Rather, he was prosecuted for public nudity, under a statute that outlaws "knowingly mak[ing] any open or indecent exposure of [one's] person or of the person of another." This statute, the court concluded, covered not just physically appearing naked in public, but also "televising" such a naked image, so long as one has reason to "expect someone [to] observe the [material] and be offended by it." And the court held that there's no First Amendment problem with it — the court reasoned that state law is allowed to bar the conduct of public nudity, and in the process also cover televised nudity as well as in-person nudity:

[D]efendant would have been properly subject to conviction for indecent exposure had he staged the . . . segment in a traditional public square. He becomes entitled to no greater First Amendment protection and cannot inoculate himself from criminal liability by channeling his exposure through a cable television network.

This, it seems to me, would apply equally to any cable company that carries HBO, or any other channel that sometimes carries nudity. Under the court's logic, the company — corporations are generally treated as "persons" — and those working for it are making "open or indecent exposure . . . of the person of another." Likewise, HBO executives, who surely must know that their material would be carried in Michigan, would probably be committing a crime. And it seems to me that the actors who are openly exposing their bodies, doubtless knowing that the material will one day be seen on cable in Michigan, would be criminals, too. (I suspect Michigan courts would have jurisdiction over such offenses, especially if the HBO executives or the actors one day set foot in Michigan; but they certainly have jurisdiction over the local cable company that chooses to carry HBO.)

It's not clear whether the Michigan statute applies to exposure of the female breast or only to exposure of the genitalia, but in either case any cable channel that has carried an unedited Basic Instinct would surely be covered. Moreover, under the logic of the court's opinion, the Michigan legislature could easily amend the statute to make clear that it does cover exposure of women's breasts, and the law would be perfectly constitutionally applicable to women's breasts shown on cable.

What possible defenses could the HBO people raise? They couldn't distinguish themselves from Huffman on the grounds that their movies have more artistic value — serious artistic value is a defense to an obscenity charge, but not to an indecent exposure charge.

Of course, HBO is a premium service, and people usually deliberately buy it. Most subscribers probably won't be offended if they're channel-surfing and hit an HBO channel that contains nudity. But most viewers probably weren't offended by Huffman's program; and the test is whether the defendant could reasonably "expect [that] someone would observe the . . . segment and be offended by it" (italics added).

That surely applies to HBO: A hotel guest who's unaware that HBO is available and who accidentally runs across a nude scene may well be offended. Likewise with a guest (or a visiting family member) who doesn't realize that his hosts have HBO. Surely the HBO people must know that someone would be offended by nudity on HBO programs. And if some channels that carry unedited Basic Instinct are parts of basic cable, then they would even more clearly be likely to offend someone on some occasion.

I suspect the same may apply to video stores that rent movies containing nudity, or bookstores that sell books that contain nudity — no matter how educational or unpornographic (remember that the law applies to all nudity that may offend someone, with no requirements of sexual explicitness or lack of serious value) — at least if the movies or books don't have prominent labels saying "Warning: This material contains nudity." But cable companies, which really are (as a legal matter) no different from Mr. Huffman, are the clearest example.

As you might gather, I think this is a bad decision, and I hope it will be promptly reversed. The Supreme Court has made clear that material doesn't lose constitutional protection merely because it contains nudity that might offend someone. And I think this is correct; if you don't like what you see, a click of the remote control — coupled with remembering what channels tend to carry such material, so you can avoid it in the future — will solve the problem for you. Nor am I much worried about children here; whatever harm may flow from children being exposed to sexually themed material, let me stress again that the law as interpreted by the court isn't limited to the erotic.

It turns out that there are interesting conceptual questions about how First Amendment law should treat nudity, and about what distinctions there may be between live nudity and televised (or for that matter painted or computer generated) nudity. Nonetheless, I don't think a court needs to be detained by these theoretical issues here; the First Amendment precedents are pretty clear, and they're in Huffman's favor.

UPDATE: Here's one item I forgot to mention. The Michigan court's constitutional reasoning was two-fold: (A) Bans on public nudity are constitutional conduct restrictions, because of the government's interest in banning such immoral conduct; for this the court relied on Barnes v. Glen Theatre, which upheld an Indiana ban on public nudity, as applied to nude dancing in a strip club. (B) Bans on public nudity may constitutionally extend to video (and presumably still photographic) distributions of nudity to the public, and not just to live nudity. Then, as a statutory matter, the court held that (C) the Michigan statute indeed extended to video nudity, (D) so long as the nudity was offensive to some viewers.

But Barnes upheld a law that barred public nudity even when no viewers were likely to be offended. (Recall that Barnes involved nude dancing at a strip club, where the audience is typically eager to see nudity, rather than reluctant to do so.) As it happens, the Michigan law was narrower than the Indiana law (that's item D in the above paragraph); but it doesn't have to be. A state legislature could well enact a law that, like Indiana's law, bars public nudity even when it doesn't offend any viewers.

Then element D would be absent, but the Michigan court's constitutional logic would still hold. And then (assuming this slight change in the Michigan statute) distribution of material that depicts nudity would be outlawed in Michigan even if it's distributed to entirely willing consumers. So it would be a crime in Michigan not just to sell Playboy, but to rent any video, sell any art book, or distribute anything else that depicts nudity — after all, public nudity may constitutionally be banned, and video or photographic nudity is the same as in-person nudity. Thus, under the Michigan court's logic, all distribution to the public of material that depicts nudity, no matter how artistically, scientifically, or educationally valuable, would be constitutionally unprotected (again, so long as the Michigan legislature enacts an Indiana-like ban on public nudity). That further shows, I think, that the Michigan court's reasoning is unsound, and inconsistent with the Supreme Court's First Amendment precedents.

Guess the Authoring Justice: In an opinion handed down this morning, Deck v. Missouri, the Supreme Court considered when it is constitutional for a capital defendant to appear before the sentencing jury in shackles. There was a majority opinion and a dissenting opinion; one was written by Justice Thomas, the other by Justice Breyer. Here is an excerpt from the majority opinion:

  We first consider whether, as a general matter, the Constitution permits a State to use visible shackles routinely in the guilt phase of a criminal trial. The answer is clear: The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.
  This rule has deep roots in the common law. In the 18th century, Blackstone wrote that “it is laid down in our antient books, that, though under an indictment of the highest nature,” a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 (“If felons come in judgement to answer, . . . they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will”). Blackstone and other English authorities recognized that the rule did not apply at “the time of arraignment,” or like proceedings before the judge. Blackstone, supra, at 317; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K. B. 1722). It was meant to protect defendants appearing at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) (“[B]eing put upon his trial, the Court immediately ordered [the defendant’s] fetters to be knocked off”).
  American courts have traditionally followed Black-stone’s “ancient” English rule, while making clear that “in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, the manacles may be retained.” 1 J. Bishop, New Criminal Procedure §955, p. 573 (4th ed. 1895) . . . .

Now here is an excerpt from the dissenting opinion:

[A]lthough the English common law had a rule against trying a defendant in irons, the basis for the rule makes clear that it should not be extended by rote to modern restraints, which are dissimilar in certain essential respects to the irons that gave rise to the rule. Despite the existence of a rule at common law, state courts did not even begin to address the use of physical restraints until the 1870’s, and the vast majority of state courts would not take up this issue until the 20th century, well after the ratification of the Fourteenth Amendment. Neither the earliest case nor the more modern cases reflect a consensus that would inform our understanding of the requirements of due process. therefore find this evidence inconclusive.

Okay, so here's the question: which Justice wrote the majority opinion, and which wrote the dissenting opinion?

(Click here for the answer.)

Judges on Judging Judges: If I'm not mistaken, this is an example of a judge criticizing people for being anti-democratic because they have the nerve to criticize judges for being anti-democratic. (Link: Howard)

Medellin v. Dretke: This morning, the Supreme Court DIG'ed (dismissed as improvidently granted) Medellin v. Dretke, a closely watched case about international law and the death penalty. A DIG basically just takes the case off the Court's docket without issuing an opinion. The Court's decision to DIG this case isn't a big surprise; I attended the oral argument, and that certainly sounded like the direction the Justices were heading in at the time. Lyle Denniston's March 28th post following the oral argument offers some details.

UPDATE: It turns out that there was a lot more drama involved than I thought. The DIG was accompanied by 40 pages of writing in the case. A 5-Justice majority issued a short per curiam opinion; Justice Ginsburg concurred, joined by Scalia; O'Connor dissented, joined by Stevens, Souter and Breyer; Souter filed a solo dissent; and Breyer filed a dissent joined by Stevens. What to make of all of this? Julian Ku offers his thoughts over at Opinio Juris.

Related Posts (on one page):

The Supreme Court's International Treaty / Habeas Corpus Case (Medellin):
Medellin v. Dretke:

Unsolicited Raves for Chess Tactics:

I blogged about Chess Tactics, aka Predator at the Chessboard -- put together by my friend and fellow lawprof Ward Farnsworth -- a few days ago. Pejmanesque links, and calls it his "dream site." Mind Poison writes:

Today I discovered a book online that I absolutely love. It's called (I think) Ward Farnsworth's Predator at the Chessboard (linked to from Volokh).

There's two things I take from this. The first is that this is probably the best book on Chess that I've ever read for beginners (I am obviously not qualified to comment on more advanced books, being a beginner). I've long known all the rules of the game, but I've never had any idea what I was doing at all. . . .

This book talks about chess like a human being, explaining the elements of tactics, and how you should be looking at the board, then provides many examples of the same ideas over and over. . . . [F]or the first time I felt like I was able to read the board positions provided and figure out a decent picture of what was going on. Well-written, and highly recommended.

The other thing I'll say about this book is that "My God, this is a fantastic way to present a book." If you dig in, you'll find that the book is done in small chunks, with a frame on the left for the board illustration. This is such a fantastic way to present the materials in a book, because when you need to scroll down, you can keep the relevant illustration in sight. I often read math books or economics papers, and find myself having to stick most of the fingers on one hand between different pages to keep an easy reference to the equations or diagrams referenced throughout the text. Imagine if people adopted this sort of organization for math books, easily presenting everything that each chunk of the text refers to while you read. Brilliant.

High praise, and well-deserved.

Kopel on the Media:

My latest media column for the Rocky Mountain News points out the flaws in Newsweek's ranking of the top 100 American high schools. I also look at an error-filled retrospective on Colorado's 1992 Amendment 2 anti-gay rights ballot initiative. And I bemoan the decision of newspapers to cover Israeli Independence Day with a biased story that whitewashes Arab responsibility for the suffering caused by the war that Arab governments started in 1948.

What Incoming Law Students Want and Need To Know: I've been thinking it might be helpful to write up a guide for incoming law students that answers some of the common questions shared by new law students about law school and legal education. There's a cottage industry specializing in such advice, I realize. Incoming law students are famously obsessed with getting any edge they can, and authors and book publishers are happy to exploit those fears with all sorts of advice books (some of which are moderately helpful; others of which are pretty lame).

  My sense is that I could do better than the current offerings in three ways. First, I think I can capture the best sense of things from the collective knowledge of actual law professors and practicing lawyers, instead of from the sometimes idiosyncratic perspective of individual authors. A number of the books reflect a I-made-law-review-when-I-did-this-in-1972 mentality, and it's hard for incoming students to know whether the approach will work for them, too. Second, I think I would have a distinct advantage on price: my plan is to keep the guide short and put it on the web for free, probably pursuant to a creative commons license. Finally, while far brighter minds than mine have tried their hand at this genre, the best product is rather outdated and a bit hard for today's law students to use effectively.

  So here's where I need your help: What do incoming law students want to know? What are your questions? I assume one big question is how to do well academically, and that you also want to know how to prepare for class, how to study for exams, how (if at all) to prepare the summer before law school, and the like. But what else is there? Please leave comments, and I'll leave the comment thread open for a while. Thanks for participating.

  UPDATE: Just to be clear, I am seeking input on the questions students want answered, rather than advice on what readers think the answers are. Sorry for the confusion.

Okrent Finishes Up: Daniel Okrent has ended his stint as the New York Times public editor, and offers his final thoughts in a column, "13 Things I Meant to Write About but Never Did."

Professor Tribe and the Constitutional Moment: Laurence Tribe has announced that he will no longer be updating his one-volume constitutional law treatise, American Constitutional Law. Although I haven't used Tribe's treatise since law school, it has a well-established reputation for having been quite influential among judges over the last twenty-five years. As a result, Tribe's decision is a bit of an event (at least in geeky con law circles).

  Professor Tribe certainly didn't need to explain why he is no longer updating his work — treatises are not life sentences — but he did so in a long letter to his readers. The explanation is quite fascinating. As I read it, the gist is that treatises are historically contingent products. Tribe started writing his treatise in the 1970s to try to justify and rationalize the Warren and Burger Court's work, including Roe v. Wade. At the time, writing a treatise made sense. But these days there is no recent revolution to have to analyze and explain. Further, if I understand him correctly, Tribe also reasons that the kinds of debates that are likely to shape constitutional doctrine in the next few years aren't ones he is likely to be able to influence. (At least I think that's what Tribe is saying; I wasn't entirely sure whether he was arguing that many people today have views that simply can't be reasoned with by anyone, or whether he was recognizing that he is viewed by many on the ascendant political right as too partisan to have his arguments taken at face value.)

  It's a fascinating letter, and anyone interested in the state of constitutional law today should read it. It's got lots of interesting tidbits, ranging from skepticism about claims of a "constitution in exile" movement (see p. 4) to questioning his 1991 position that the Courts should interpret the Constitution in light of technological change by simply "translating" the old doctrines to new ones (see footnote on p. 9).

  Thanks to SCOTUSblog for the news, and for hosting a copy of the Tribe letter forthcoming in The Green Bag.

Saturday, May 28, 2005

Friday, May 27, 2005

Thursday, May 26, 2005

Wednesday, May 25, 2005

Tuesday, May 24, 2005

Monday, May 23, 2005

Sunday, May 22, 2005