The Volokh Conspiracy

is just superb — and an excellent example of the value added by the Internet. Take several top scholars and legal thinkers on the subject; have them engage each other (and outside opinion) thoughtfully, in detail, and politely, reaching far deeper than the usual sloganeering yet remaining largely acceptable for educated laypeople; present it starting hours after the decision is handed down, for free, to all interested Internet-connected readers — show me a medium that can beat that.

John Tabin criticizes the proposed amendment in The American Spectator; here are my favorite lines:

Do we really feel threatened by those so moronic that they burn the American flag, call ours a fascist state, face no consequences, and completely miss the irony? . . .

[T]he flag-protection effort ought to be scotched for the simple reason that America doesn't get rattled by some stupid little punk with a Che Guevara T-shirt and a Zippo. . . .

A comment in the Brian Leiter/anonymity thread referred to "Brian Leiter contacting Eugene Volokh as an 'anonymous law prof' to attack a law student who outdid his law school rankings."

This turns out to be not entirely accurate. Prof. Leiter e-mailed me and asked me to post a comment pointing out the inaccuracy, but I thought it was worth noting as a separate post.

The original e-mail from Prof. Leiter to me, which I quoted and attributed to "another lawprof," was not strictly speaking anonymous: He certainly signed the message to me. The message pointed out various posts at xoxohth, and argued that the operators of the site deserved to be blamed for not removing those posts. It then said that if I wanted to publicly shame the xoxohth operator — a decision on which Prof. Leiter expressed some ambivalence, since he wasn't sure whether it was better to shame the operator, or to avoid calling more attention to what Prof. Leiter thought was a bad site — I shouldn't refer to Prof. Leiter in the process.

I found myself disagreeing with Prof. Leiter's criticism of the xoxohth operator, sent Prof. Leiter my explanation, invited him to go public with his criticisms, so that his and my views would provide an interesting contrast, but said that "[i]f you prefer, I could post your message with my response, and just label you as an anonymous lawprof." He agreed to that latter approach, and that led to the post that I link to in the preceding paragraph.

So Prof. Leiter did not precisely contact me "as an 'anonymous law prof' to attack a law student . . . ." Rather, he contacted me nonanonymously (or onymously, reader BillB points out) with a criticism of the law student, and suggested that if I did criticize the student, I should do so without referring to him (Prof. Leiter).

UPDATE: Prof. Leiter points out that, at the time he e-mailed me, he didn't yet know the site was run by a law student. I'm not sure how much of a difference this makes, but I'm happy to note it for the record.

The core debate in Kelo, as I mentioned yesterday, is over whether the "public use" requirement of the Takings Clause means (1) "the taken property must be owned by the government, or sold by the government to a common carrier that has the legal obligation to serve everyone" or (2) "the taken property must be used by the government as a means of benefiting the public, even if the government benefits the public by selling the property to a private property owner."

I argued that, if one is focusing on the practical merits, requirement 1 seems to fit uneasily with a pro-private-enterprise/pro-market philosophy: In those cases where the government is trying to accomplish some goal using the eminent domain power — an inherently somewhat unlibertarian power, but one that the Constitution does reserve to the government in some measure — there are strong pro-private-enterprise/pro-market arguments in favor of letting the government do this using private businesses, rather than doing it itself or imposing a common carrier obligation. For more details, please read that post.

Let me use the same approach to consider three other arguments I've heard many people make:

1. These redevelopment takings, people say, primarily benefit private businesses, and benefit the public only indirectly. But so what? A key argument for private enterprise is that private benefits may yield public benefits — perhaps indirectly, but much more reliably than attempts to produce the public benefits through more direct government action. A plant may benefit from getting property that it otherwise couldn't get; but this benefit will also help plant employees, nearby businesses, and others. That this is something of a "trickle-down" effect doesn't keep it from being a real effect.

2. Others point out that the redevelopment plans often don't require the private enterprise to which the condemned land is sold to keep using the land for publicly beneficial reasons. If GM ends up getting the property, on the theory that it will build a plant that would provide jobs for employees, more income for local businesses, and so on, then it could turn around tomorrow and just build a private golf course for GM executives instead.

Well, it could, but is that really likely? I suspect not, in part because (for better or worse) GM as a landowner would itself be subject to the power of local authorities. If it decides to build that golf course, it might find that the zoning on the land will get changed, or even that the property will be taken back (and likely without any more compensation than what they had to pay for the land in the first place). The city may well conclude that such an informally understood possibility of sanctions is much more effective than contractual requirements that might unduly tie up the new landowner's flexibility. (For instance, if there's a contractual requirement that GM keep the plant open for 20 years, GM might either not accept it, or might end up underinvesting in the property because it knows that it has less flexibility to pull out of the property if something should go wrong.)

The city would be taking a bet that selling the property to the plant owners unencumbered (except with the inevitable possibility of retaliation if the owners go back on the understood deal) will provide more economic benefit than selling it to them with various strings attached. That may or may not be wise, but I don't see why this judgment should make the city's decision unconstitutional.

3. Still others say that economic development just isn't a permissible public use. But the reason the government has taken property to build railroads, roads, dams, and the like -- uses that are quintessentially constitutionally permitted (even if a libertarian might argue that they shouldn't be permitted) -- is economic development.

It may be that transportation channels are more likely to be much more valuable than just new plants; "creating jobs" is a great slogan, but merely creating jobs for the sake of creating jobs ends up being financially inefficient. I'm actually pretty sympathetic to this argument as a policy matter, and perhaps, since we're talking about practical arguments, it could also be used to justify a constitutional line. Still, I'm not sure that this is so; and I think the economic question is hard enough that courts ought not make the constitutional "public use" requirement to turn it.

I should stress that these are only some of the matters that should be considered, and they may well not be dispositive. One may well think that the original meaning of the "public use" requirement in 1791 (or in 1868, or throughout the 1800s if one sees those timeframes as relevant) mandates option 1, notwithstanding the practical questions. One may also make natural rights arguments in favor of adopting the least property-rights-restrictive option, when the historical evidence makes the choice between the options into a close call. And one may think that for public-choice reasons, allowing redevelopment takings that use public-private partnerships will do much more harm than good because the private entities will pressure, bribe, or dupe the government authorities into taking property too often. My goal here isn't to say that all the Kelo critics are wrong, but only to cast doubt on some particular arguments that I've heard made.

Kelo was litigated by the Institute of Justice, a first-rate libertarian public interest law firm; I think it's much to their credit that they could get even 4 votes -- the last case that squarely considered this issue, Hawaii Housing Authority v. Midkiff (1984), was unanimous, and Justice O'Connor and Chief Justice Rehnquist were on the side of the government there. I don't agree with them entirely as to Kelo, but I still very much respect their work, in this case and in others.

IJ has also been very successful fighting battles in lower courts, either under state constitutions or getting policies struck down under the "rational basis" test, the same test that now applies in the eminent domain "public use" analysis. Constitutional scholars may tell you that rational basis cases are virtually impossible to win (at least unless the courts conclude that the law improperly discriminates against some group, almost never an economically defined group). But IJ somehow manages to win them.

Finally, the IJ people are masters at using their cases to marshal public opinion. That often helps them pressure the government to change its policy even without a final decision in litigation. And it also helps them use cases, whether they win them or lose them, to build pro-economic-liberty sentiment generally; they're especially good at showing how economic liberty helps the little guy.

They're trying to do this with Kelo (and to incidentally raise money to fund their future work). Here's their new campaign:

Stop Eminent Domain Abuse

The Supreme Court put an UP FOR GRABS sign on your home. It said it’s OK to take your property and give it to a politically connected private developer because that developer might be able to produce more taxes and jobs off your land.

Fight back! Join the Castle Coalition!

I'm probably off substantive blogging for the rest of the day -- some stuff needs doing in my real job -- so I doubt I'll be able to comment in a timely fashion (or even read it until tomorrow), but there are a bunch of first-rate people commenting (and, I'm told, disagreeing with my post below).

People ask me for such advice, but I have little to say beyond the unhelpful "Have gotten good grades."

My one potentially valuable bit of advice is Apply Broadly; even if you don't want to live some place for decades, you can handle a year, and even enjoy it. Applying only in the fun places puts you in constant competition with everyone else who is applying in the fun places. Also, applying only in the Ninth Circuit, as some people here out West actually do, strikes me as quite irrational: Why would you be willing to live in Idaho, Montana, Nevada, and Arizona, but not in Wyoming, Colorado, or New Mexico? If you are going to limit yourself geographically, at least limit yourself in ways that make sense.

Still, that's not a lot of help -- which is why I turn to all of you, and ask you to provide your advice in the comments. Please identify your source of knowledge (even in general terms, if you prefer to remain anonymous), though, so readers could have a sense of how generalizable the advice would be, how limited it might be to certain states or areas, and so on.

Setting aside who's right, I thought the majority and the two dissents were really very well-crafted -- readable and persuasive arguments in favor of the positions they were defending. The same was true of all the opinions in Raich v. Ashcroft; fine examples of legal writing.

For many years, people who generally lean pro-free-market and small-government have argued that when the government does things, it should usually do them through private entities. Don't have the government run utilities; have them be run by private companies. Don't fund solely government-run schools; even given a public commitment to government-funded education, it's better to have much (in the view of some, all) of that education be conducted by private schools. If you're going to pay for housing for the poor, do it through vouchers, not through government-run housing projects.

Moreover, you generally shouldn't burden the private organizations with common-carrier-like "you must serve everyone" requirements, at least unless they're monopolies. Better leave landlords and educators, for instance, free (or mostly free) to decide whom to let in, and on balance their economic self-interest will generally yield optimal results. (I set aside here the debates about bans on discrimination based on race, religion, sex, and so on; the common carrier model would ban all discrimination, or all discrimination found to be "unreasonable" by some government decisionmaker, and not just discrimination based on certain proscribed categories.)

My sense is that this is indeed generally a very good policy: Once you decide that the government should be funding or assisting some services, you should nonetheless prefer that they be privately provided (better yet, competitively provided), of course with some exceptions. There are costs to this approach, but they are less than the costs of inefficient government operations. "The public end may be as well or better served through an agency of private enterprise than through a department of government." Berman v. Parker, 348 U.S. 26, 33-34 (1954).

The funny thing is that, in Kelo v. City of New London, it is the (mostly liberal) majority's test that would give the government flexibility to serve public goals by taking property and selling it to private parties, when the government thinks the private parties will be better positioned to provide the public benefit. And it is the conservative dissenters' test that would give the government a strong incentive to own and operate various enterprises itself, or insist that whoever owns and operates them labor under the burdens of being a "common carrier."

Under the dissenters' view, if the City of New London wants to take property to run a shopping mall, which would presumably provide more jobs and government revenue, it's free to do so. But if it wants to take property and resell it to a private shopping mall owner, it may not. True, the latter solution isn't the pure free market: The mall owner would be getting a government benefit in the form of property taken from the original owners (albeit with compensation), just as school choice programs get a government benefit in the form of money taken from taxpayers. Still, it seems better than the City running retail stores — yet the dissenters' approach would give the City an incentive to do that, rather than lining up more efficient private businesses to do it.

Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.

Nonetheless, if we're evaluating the practical benefits of either approach, we might want to be skeptical of an approach that favors government ownership or operation of publicly useful enterprises over private (albeit government-assisted) ownership or operation.

UPDATE: I should stress, by the way, that my point isn't just that a "government ownership and operation is OK, private ownership and operation is not" rule creates perverse incentives. The question is also whether a rule that disfavors privatized but government-assisted enterprises compared to purely government-run enterprises makes sense, given that we generally think privatized enterprises are better.

The House has yet again approved an amendment to ban flagburning, so I figure it's time to yet again link to my criticism of the amendment. Here's an excerpt:

"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that's not exactly how the proposed flag protection amendment reads — I've added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn't be protected by the First Amendment because it isn't "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I'm wrong, then both should be unprotected. . . .

Thanks to reader Spencer Macdonald for the pointer.

Some people have recently faulted others for commenting on only a small part of a piece -- whether a blog post, a newspaper article, a book, or what have you. But it seems that such narrow commentary is often perfectly apt.

Say that you read an article or a post, and find something in it that's mistaken. There are several reasons why you might not want to comment on the article or post as a whole, but only on the mistaken item:

1. You may agree with the rest of the piece, and have nothing much to add to it.

2. You may not know enough to have an informed opinion about the rest of the piece.

3. You may think that your criticisms of the rest of the piece would be banal, too long, or otherwise boring for you or your readers, while the criticism of the one particular item is helpful and interesting.

4. You may think that this particular mistake is emblematic of a broader kind of error, and thus use it in a post that's about this error.

In such situations, it seems to me quite proper to focus only on the one mistaken item. If you're right in your criticisms, then you've helped correct a mistake, even if only a small mistake. If you're wrong in those criticisms, then you should be faulted for being wrong, not for choosing to criticize a small part of a post.

The author of the original item may soundly point out that some criticism goes only to a tangential part of the item. The argument wouldn't be "X is wrong to focus on only a small part of my post"; it would be "X argues that this part of my post is wrong, but readers should recognize that even if X were right, this wouldn't undermine my key point." But that just means that the comment on the small portion is of limited utility -- not that such commentary on small portions is improper.

Prof. Leiter also says something about the tenure process that struck me as quite odd:

Mr. Non-Volokh gives as the reason for anonymity concerns about getting tenure. I confess I wonder about the prudence of that rationale: I would think a tenure process deprived of the information that the candidate had been writing about legal matters for years on a very public website would be invalidated once that information became known.

I only know first-hand the tenure process as it operates at UCLA, but I had thought the UCLA model was representative of the legal academy: Junior faculty -- who, at most law schools, were generally hired with something of a presumption that they would indeed be tenured -- are judged on (1) scholarship, (2) teaching, and (3) service to the university, profession, and community. One's nonscholarly writings, such as columns in a local alternative newspaper, blog posts, and the like might be seen as a form of community service; but they are not a major factor, and if a candidate didn't want them to be considered, they wouldn't be (at least in the absence of unusual misconduct such as plagiarism).

And this makes perfect sense. Evaluating a law review article is evaluating what should generally be a thoughtful, thorough, carefully footnoted work that pays close attention to counterarguments. Even so, ideological prejudice will inevitably color the evaluation; even if we try hard to be objective, we'll naturally think (all else being equal) that articles that come to views with which we agree are better reasoned than those that come to views which we have rejected. But at least we'll see the many pages that carefully engage our preferred arguments, the close discussion of ambiguities in the sources, and the product of many months or years of thinking; and we may therefore often accept the article as meritorious even if we disagree with its bottom line -- which is often only a small part of the article's value.

Evaluating quickly written and necessarily highly incomplete op-eds or blog posts will necessarily prove to be a much more partisan process. Such pieces tell us relatively little about the author's qualities as a scholar, and pose a relatively large risk of ideological bias in the evaluation. Of course some people on the Right are sometimes impressed by some blog posts coming from the Left, and vice versa; yet this will often not be so -- and more often than with scholarly articles -- for reasons that have to do with ideological disagreement rather than any objective failings on the poster's part. Considering such nonscholarly writing is not irrational; one can argue that they do shed some light on the author's qualities of mind. But since the important qualities for a scholar are the ones that he exhibits in his scholarship and teaching, and the tenure process already thoroughly evaluates those qualities, it makes little sense to also focus on material that has much less bearing on the subject, and poses more of a risk of unfair evaluation.

In any event, I am pretty sure that at UCLA people (1) would barely even read a person's blog posts, newspaper columns, op-eds, and the like, (2) if the person asks, would entirely exclude them from the analysis, and (3) certainly wouldn't go back over a tenure case because they had learned that the person had been writing newspaper columns or blog posts on the subject.

Am I mistaken? Do other law schools carefully follow a person's nonscholarly ideological writing in deciding whether to give the person tenure? Does Prof. Leiter's own University of Texas Law School do that?

Prof. Leiter criticizes Juan's criticism of one of Leiter's posts, and proceeds to say:

So who is Juan Non-Volokh? I intend to find out and to post that information here in due course. I welcome your help ... and I promise to keep my sources secret!

I will let you folks be the judges of whether this is good behavior on Prof. Leiter's part. In my view, the nicer thing to do is to respect people's preference for anonymity, at least unless there are some unusual circumstances (more than just disagreement with their views) that are absent here.

UPDATE: Brian Leiter says here that he won't publicly identify Juan, though in this update to his original post he says that "perhaps" he won't do it. If the fir