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Saturday, March 4, 2006
This Will Surely Encourage New Home Sales:
With new home sales slumping, and many buyers backing out their contracts even at the cost of losing their deposits for fear of losing even more money as the bubble deflates, builder Brookfield Homes has a great idea: threaten not simply to keep cold-footed buyers' deposits, but to sue them for the difference between the price they contracted for and the price the house actualy sells for: "Some buyers could find themselves on the hook for more than their initial down payment. If a house is resold for less than the original purchase price, 'we are able to go back to the initial purchaser and recoup some of the losses we had there,' says Mr. Hughes of Brookfield Homes." Yep, that will inspire new buyers to put down new deposits [clarification: given that it's both terrible customer relations, and also that it implies that Brookfield's poobahs believe that the value of the homes they've sold on spec is rapidly plummeting, or soon will rapidly plummet].
UPDATE: Of course it's true that many real estate speculators treated nonrefundable earnest money like a call option on rising real estate prices, and I wouldn't feel much sympathy for such a speculator who failed to anticipate (either because he didn't know the law, or because he assumed prices would rise forever) that he could be liable for expectancy damages as well. But it's also hard to feel sympathy for builders facing mounting cancellations: the builders knew rampant speculation was going on in many markets, and could have avoided the problem by only selling homes at or near completion.
A Pause to Give Thanks that Robert Bork Didn't Make it to the Supreme Court:
Bork: "Liberty in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality. Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free." Judge Posner once wrote that the alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving "the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us." Posner meant that as a criticism of censorship, but it seems that Bork would think that's a good thing.
With his flaws, I'll take Anthony Kennedy any day (though I'd much prefer if Douglas Ginsburg had made it). In fairness (?) to Bork, he seemed a lot less extremist, and ornery, on a variety of margins before the trauma of his confirmation battle.
Hate Crime in North Carolina?
An attempted murder of nine people.
I'm not wild about special treatment for hate crimes (and, of course, if the story is accurate this is more than just a hate crime); but those who think hate crimes are a separate and important category should agree that this does indeed fall into that category.
UPDATE: I was on the run this morning, and didn't have time to go into details; and I also thought the reason this was a hate crime was pretty clear. Some of the comments question this, though, so let me elaborate.
Hate crime laws generally impose special penalties on criminals who select their targets because of (among other things) the targets' race, religion, or nationality. The attacker here was apparently motivated by his upset at the supposed mistreatment of Muslims. It thus seems no accident that he targeted for his attack a place that's frequented by members of other religious groups. I realize that most places in America are frequented by non-Muslims; if he hadn't told us his motives, we might assume that he was just choosing victims for reasons unrelated to religion. But he has told us his motives, which explain why he drove into a people at a university rather than people outside a mosque or people outside a local Muslim store -- he wanted to retaliate against non-Muslims, so he drove into a predominantly non-Muslim crowd.
Depending on how nationality is defined for purposes of hate crimes laws, an attack aimed at Americans because they are Americans may also be a hate crime on that score. But an attack aimed at a group largely consisting of non-Muslims (or non-Christians or non-Jews) because they aren't Muslims -- and we know this was its aim because it was motivated by the attackers' feeling that Muslims were being mistreated, presumably by non-Muslims -- is a hate crime.
By way of analogy, imagine that a Christian became upset by the supposed mistreatment of Christians (presumably by non-Christians), and rammed his car into a crowd of people who are predominantly non-Christian (or at least not observant Christians). It would seem to me pretty clear that his choice of targets was likely motivated by the targets' religion -- otherwise how would his attack be connected to his stated motive?
Naturally if it turns out that the attacker's motives were different, for instance if it turns out he just want to kill a random bunch of people, or because he was somehow upset at the mistreatment of Muslims by Muslims as well as by non-Muslims -- and decided to act on that by ramming his car into a crowd of predominantly non-Muslim Americans -- the analysis might be different. I'm writing, though, based on what the story reports.
Friday, March 3, 2006
"English-Speaking American":
Denver Post:
Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.
Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."
Gray has hired an attorney to fight the County on First Amendment grounds. Sorry, Mr. Gray, the government is your employer, and it may forbid speech at the workplace that it thinks is offensive to other workers, even if you think your boss is being hypersensitive (and personally, I don't see anything "harassing" about wearing a hat that says "U.S. Border Patrol," though I can see, in context, why some would find it offensive). What the government could not do is require you to cover your sign, or forbid you to wear your hat, outside the workplace.
On the other hand, the government may fire a prosecutor who attends racist meetings, given that having such a prosecutor on staff is likely to reduce public faith in the fairness of the justice system.
Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.
Cato and Palmer in Iraq:
I am old enough to remember when a very young Tom Palmer used to travel behind the Iron Curtain on behalf of the Cato Institute to plant seeds of liberty in the Eastern block countries. Since the fall of Saddam, he has been doing the same thing under even more dangerous conditions in Iraq, making several trips there with his own personal set of body armor. This story from the National Journal reports on some of the fruits that have grown from those seeds, and explains why Tom is one of my heros.
Last April, Palmer returned to Iraq to give talks on constitutional and free-market principles. At one such talk he met Kamil. Returning to Washington, Palmer connected with other liberal Arabs and, with their help, began commissioning translations: of Bastiat, Mises, Adam Smith, John Stuart Mill, Voltaire, David Hume, F.A. Hayek, and such influential contemporary writers as Mario Vargas Llosa and Hernando de Soto. Most of this stuff has either been unavailable in Arabic or available spottily, intermittently, and in poor translations.
In January, MisbahAlHurriyya.org made its Internet debut. Today it hosts about 40 texts; Palmer aims for more like 400, including a shelf of books. (It currently offers an abridged edition of Hayek's Road to Serfdom and Bastiat's The Law. The Norberg book is coming soon.) Sponsored by the Cato Institute, it joins a small but growing assortment of Arabic-language blogs and Web sites promulgating liberal ideas.
"The Internet is a historical opportunity for Arab liberalism," Pierre Akel, the Lebanese host of one such site, metransparent.com, said in a recent interview with Reason magazine. "In the Arab world, much more than in the West, we can genuinely talk of a blog revolution." The Internet provides Arab liberals with the platform and anonymity that they need; helpfully, Arabic-language blogware, developed by liberal bloggers, recently came online for free downloading. During the recent controversy over a Danish newspaper's publication of cartoons depicting the Prophet Mohammed, an Egyptian blog, EgyptianSandMonkey.blogspot.com, made a splash by pointing out that no one had protested when the same cartoons had previously been published on the front page of an Egyptian newspaper — and by calling, sardonically, for a Muslim boycott of Egypt. (The site boasts a "Buy Danish" sticker.) When Tom was making his trips to Eastern Europe, and IHS was bringing students from there to the U.S. for its summer seminars at which I taught, the situation in Europe and the USSR seemed far more hopeless than does our present position in Iraq. Let us hope for at least as successful an outcome.
Update: I closed comments after they took a nasty turn (NOT about Tom), especially given that I won't be able to monitor them consistently over the next day or so.
Applying the Fourth Amendment to Pranks:
On Tuesday, the Tenth Circuit handed down a very interesting decision applying the Fourth Amendmemt to a prank. The case is Fuerschbach v. Southwest Airlines, and was written by Judge Lucero (joined by McConnell and Brorby). From the introduction: Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the prank. She sued the officers and the City of Albuquerque under 42 U.S.C. 1983, alleging violations of her Fourth and Fourteenth Amendment rights. . . . We conclude that Fuerschbach's allegations are sufficient to survive the assertion of qualified immunity. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve. The case is interesting in part because Fourth Amendment "seizures" of persons are analyzed from the perspective of the person seized. The question is whether a reasonable person in that situation would have believed she wasn't free to go, not whether the officers believed that the individual was free to go. The difference is criticial in the case of a prank: the officers know it's all a joke but the person "seized" does not. A very interesting case. Hat tip: Decision of the Day.
All Blogspot Blogs Apparently Blocked in Pakistan,
presumably because of a Pakistan Supreme Court order requiring "[the Pakistan Telecommunication Authority] and other concerned organs of state to take all possible measures for blocking internet web-sites exhibiting the blasphemous caricatures." The source that reports on the blogspot blocking writes:
Update: The block is at the ISP level. Not all internet traffic is routed through the Pakistan Internet Exchange, so the govt. must have ordered local ISP's to block certain websites. All the major ISP's in Pakistan are blocking weblogs hosted at blogspot.com.
I say "presumably" because the sources I cite report as fact only (1) the blocking of blogspot, and (2) the Pakistan Supreme Court order; the remainder, as best I can tell, is still inference, though regrettably plausible inference.
Thanks to Manan Ahmend (Cliopatria) and InstaPundit for the pointer.
Some Oscar Trivia:
What two people won Oscars for portraying the same character in two different movies? What two people were nominated for Oscars for portraying the same character in the same movie? (There are two sets of answers to this one.)
How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths:
During this past week, I’ve offered a series of thoughts about why traditionalist Christian (specifically Catholic and Baptist) claimants in religious liberty cases now appear to be the disfavored parties in court. Several responses to my postings offered thoughtful questions about methodology or provocative arguments about religious liberty. Other comments, salted with pejorative labels (“pseudo-science,” “cartoonish”) or impugning the researcher’s motives or competence (“whining,” “right-winger,” “unscholarly”), were less analysis than sneering. To quote Martin Marty quoting William Paley: “Who can refute a sneer?”
The subject that received the greatest attention of course was whether traditionalist (or social-conservative) Christians are being treated unfairly in religious liberty litigation or instead are just getting what’s coming to them. Here there was more consensus than might appear. First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.
A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data.
In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself.
Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And ‘round we go.
Two weeks ago, in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2006 WL 386374 (U.S. 2006), the Supreme Court unanimously held that the Religious Freedom Restoration Act (FRFA) demands a “focused” and not a “categorical approach”: “[T]he compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Thus, when a religious sect makes sacramental use of a hallucinogenic substance, “mere invocation” by the government of a general prohibition on non-medical use of narcotics is insufficient to override it.
My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either “law and order” or “the equal opportunity society.” An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.
This vision fits comfortably with today’s Supreme Court under RFRA and with such liberal stalwarts for civil liberties as Justices Brennan and Marshall a generation ago under the Free Exercise Clause of the First Amendment. That many today characterize the case for a robust, vigorous, and broadly-applied judicial protection of religious liberty as but mere conservative special-pleading speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives.
In closing, whether you find my research and analysis to be commendable or damnable, I am transparent about what I’m doing. For anyone interested in digging into the dataset, it always has been publicly available.
More NSA Surveillance Programs?:
The Washington Post reports that AG Alberto Gonzales and White House Counsel Harriett Miers each denied in telephone calls to Rep. Jane Harman that there was "a broader program or an additional program out there involving surveillance of U.S. persons" beyond the known NSA surveillance program. This is an interesting development, although exactly what it means isn't clear to me. Given that the statements were made to Harman over the phone and reported by her from memory, we don't know precisely what was said. The details might matter. For example, a statement that there are no additional "surveillance" programs might be quite different from a statement that there are no additional "electronic surveillance" programs. "Surveillance" would seem to be a general term, but "electronic surveillance" is a term of art defined in FISA that is mostly limited to acquiring the contents of communications. See 50 U.S.C. 1801(f). So, for example, a datamining program that used non-content envelope information from Internet and telephone communications to try to look for patterns and links of communications might sound like a "surveillance" program in a popular sense. On the other hand, it technically would not be an "electronic surveillance" program as the term is used in FISA.
Thursday, March 2, 2006
Should Being an Active Member of a racist, anti-gay, anti-Semitic organization
disqualify someone from serving on a state hate crimes commission? You would think so, but, at least in Illinois, you'd be wrong: "On Wednesday, [Governor] Blagojevich expressed support for Claudette Marie Muhammad, director of community outreach for the Nation of Islam, a black Muslim group led by the Rev. Louis Farrakhan... Muhammad recently invited commission members to attend a Farrakhan speech in which he accused 'Hollywood Jews' of 'promoting lesbianism, homosexuality' and other 'filth.'"
UPDATE: In answer to readers' comments, racism is central to NOI ideology, not peripheral. Just do a Google search on "Nation of Islam" "racism" and "yacub" or "yakub." And I find the analogy to a Boy Scouts leader extremely imprecise. The Scouts ban gays (and atheists, and girls), certainly, but I have never seen an example of the Scouts preaching hate toward gays (or atheists, or girls). A governor could nevertheless use his discretion not to appoint a Scout leader to any civil rights-related position, of course.
Proposal to Forbid Law Schools from Relying on the LSAT:
Here are details of a proposal to prohibit law schools from relying on the LSAT, because of the "disparate impact" the test has on African American and Mexican law school applicants. This proposal will be brought to the relevant ABA committee in June. I wouldn't normally give this a snowball's chance of passing, but who would have thought that the relevant ABA committee would pass a proposal that blatantly misconstrues Grutter and requires law schools to disobey the law, all in pursuit of "diversity"?
There are three noteworthy oddities in the memo (by Prof. Vernellia Randall) accompanying the proposal. The first is that it states that the "LSAC recently reported that virtually no law school is implementing Grutter." Given that all Grutter did was allow (but not require) law schools to use racial prefernces to achieve racial diversity if they have determined that racial diversity is a compelling educational interest, it's not clear what "implementing Grutter" could possibly mean. My best guess is that Prof. Randall (who is webmaster of the bizarre "Whitest Law Schools" website) seems to associate Grutter with the idea that every law school should have a "critical mass" of Black and Latino students. Grutter certainly allows law schools to pursue a "critical mass" under the circumstances noted above, but doesn't require them to, and indeed forbids it for reasons other than the "diversity as a compelling educational interest" rationale.
Another oddity is the claim that law schools are relying too heavily on the LSATs at the expense of minority students to raise their ranking in U.S. News, which uses schools' LSATs in its ranking. (She writes: "Perhaps the most pervasive reason is that many schools are undertaking a crude attempt to increase their ranking in the U.S. News and World Report at the expense of admission of minorities.") I've heard this claim often, and I'm sure that part of what is motivating the ABA's recent aggressive actions against law schools without "enough" minorities is the view of some professors that law schools who aren't taking their "fair share" of African-American students are shirking, and are benefitting in the US News rankings at more "progressive" (what is progressive about admitting and then failing out Black students?) schools' expense.
This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.
The third oddity is the concern only with inputs (number of minority students being admitted to law schools) and not with outputs (how many actually graduate and pass the bar). As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?
ESPN on "The Spot":
After "The Shot" I think we can now say there is "The Spot"--the new Michael Jordan Nike commercial, "Second Generation," that brings chills to me and many other VC readers. Now ESPN has a lengthy story on the spot's creation here. Most interesting is the strong implication that all the spots were recreated live without help from computer generated graphics, including "The Dunk" from the foul line. An excerpt:
In order to film the spot, Wieden + Kennedy held casting calls around the United States looking for kids of various backgrounds and ages who could make the moves, ranging from Jordan's tongue wagging to his gum chewing to memorable moments like his foul line dunk from the 1987 Slam Dunk contest, the fist pump after "The Shot" over Cleveland Cavaliers guard Craig Ehlo in the first round of the 1989 playoffs and his fake out of Utah Jazz guard Bryon Russell that gave the Chicago Bulls the title in the 1998 Finals.
Although all the spots were filmed in Los Angeles, the goal was to show kids imitating Jordan in all parts of the world. Jordan's defensive stance is portrayed by a kid dressed in a jersey that is African inspired. Another scene is set on another continent, where an Asian boy famously palms the basketball like Jordan. Other moments are supposed to hint at play taking place in U.S. cities, like Chicago and New York.
The only attempt at reconstructing specific scenery is the point in the ad where a young player imitates Jordan's most famous dunk. Because the dunk is supposed to happen in the present, the producers didn't have onlookers wearing clothing from the late '80s, but Mark Adamson, Jordan account executive for W+K, said the crowd was spaced out to look like it appeared during Jordan's dunk with the colors matching those of the insides of old Chicago Stadium.
While one might think that the kids were shown the specific Jordan moves before they were performed, W+K execs maintain that was not the case. The kids did what they remembered as art director Jesse Coulter fine-tuned to make sure the moves were as technically accurate as possible.
Public High School Teacher Suspended for Left-Wing Political Rants:
Via Drudge, I learn that a high school teacher in Denver has been suspended pending an investigation into remarks he made during class that were recorded by one of his students. According to the Denver Post,
teacher Jay Bennish described capitalism as a system "at odds with human rights." He also said there were "eerie similarities" between what Bush said during his Jan. 28 State of the Union address and "things that Adolf Hitler used to say.
Can Bennish constitutionally be penalized for presenting one-sided political rants to his class? Yes, I believe he can, and, to the extent he was departing from the assigned curriculum, or violating school policy in presenting only one side of an issue, likely should.
It so happens I've recently written about a similar issue [in a forthcoming book review in the Northwestern University Law Review], whether public schools in the 1950s had the authority to exclude Communist teachers from teaching social studies.
An important background assumption is that the very existence of public schools means that the government will to some degree be inculcating values into minor students. Simply by choosing curriculum, textbooks, and engaging in other functions inherent in the education process, the government will inevitably be making value-laden choices that will dictate what students learn about various social, moral, and political issues....
It is hard to disagree with Redish’s conclusion that since public schools will inevitably inculcate values, the government has a right to ensure that the teachers it employs are "with the program." But perhaps one lesson of the McCarthy era controversy over employment of Communist public school teachers is that government-run schools create inherent First Amendment problems.
Any solution that leaves the government in charge of dictating curriculum, much less directly teaching values, seems second-best from a First Amendment perspective given that, as Redish acknowledges, "the public school educational system is an authoritarian operation." The government's subsidy of certain points of views by teaching them in public schools serves as the equivalent of an implicit tax on competing perspectives, a method for government to get around the prohibition on directly taxing ideas that the government wishes to discourage. To preserve a fair, non-statist, marketplace of ideas, the government, if it must fund education, should simply provide vouchers and let parents decide which values they wish their children to be exposed to. Redish argues that "there is little doubt that a democratic society cannot function effectively absent an effective system of public education," but he does not explain why such a system must be run by, as opposed to simply funded by, the government.
I go on to argue that so long as we live in a second-best world with public schools, government authorities have the right to dictate to teachers what to teach, and to punish those teachers who refuse to comply. I conclude, however, that teachers should only be excluded or punished based on what they actually say in class, not based on their background beliefs:
the implications of allowing school authorities to choose teachers based on how their personal beliefs may affect their teaching are too troubling: May libertarians be forbidden from teaching history courses, because they may be tempted to undermine the statist assumptions so often embedded in public school social studies and history curricula? Can fundamentalist Christians and Jews be prohibited from teaching biology, on the grounds that they may try to undermine the teaching of evolution? Can committed Catholics be prohibited from teaching “health” classes on the grounds that the may try to avoid discussing contraception and abortion, as required by the curriculum? Can conservative Christians be banned from teaching in general, because their views on the morality of homosexuality may lead them to discriminate against gay students?
In short, a public school teacher shouldn't be punished for his background beliefs, though arugably it's constitutional to deny someone a teaching job based on those beliefs (no Klan members teaching a race relations course). But a teacher can be punished for what he says in class.
UPDATE: I've listened to the recording of the class, and this guy is a serious left-wing cliche machine (including some comments on the Drug War I agree with!). If I didn't know better, I'd think it was a satire.
Blog Blocked?
Do any of you folks know (1) whether our blog is blocked by some filters, and (2) how, if at all, we can try to get it unblocked? A reader e-mails that a filter named Bess seems to have it in for us, which keeps up from being accessed on some high school computers. I'm not sure that we'd want to invest a great deal of effort in trying to get unblocked, but if we can quickly find out -- with your help -- who blocks us and just send a few e-mails that might help some high school students get hooked on that Volokh Conspiracy crack take advantage of the information and opinion that we provide, that would be nice.
By the way, I'm not terribly outraged or even upset that we might be blocked. While we don't consciously try to run a "family blog," my sense is that even the 1% of our stuff that may be slightly racy is mighty tame by modern high school standards; but if some filter manufacturer disagrees, I won't to be too upset. I just suspect that the blockage is more a matter of automated word searches than of deliberate and particularized judgment, and that a filter manufacturer who does look more closely at us would probably conclude that we're not really R-rated. (As to pre-high-school students, let's just say that one doesn't need a filter to keep a typical 11-year-old from reading a blog like ours; and if some 11-year-old does read us, I suspect that it'll have to be a generally pretty mature 11-year-old.)
The Expansion of the Supreme Court Bar:
Over at SCOTUSblog, Tom Goldstein has a post on the Supreme Court bar that is a must-read for folks interested in practice before the U.S. Supreme Court. Check it out.
Check the Spell-Check:
This is really funny. My favorite line from the brief: "It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense." Indeed. Thanks to Crime & Federalism for the link.
Law School Hiring, Both Entry-Level and Lateral:
Initial round-ups of faculty hiring at U.S. law schools came online today. Legal Theory Blog has the scoop on entry-level hires, and Concurring Opinions has posted the initial reports of law school faculty lateral moves. Some of the info at CO has appeared at Leiter's Law School Reports over the last few months, but some of it is new.
Do Traditionalist Christians Lose in Court Because They Present Marginal Religious Liberty Claims (Explanations Part Three)?
Could it be that Catholics and Baptists raising religious liberty claims in the federal courts lose more often simply because they deserve to lose, as they present weaker legal claims justly turned back by the courts?
Within the hour after my first posting on Monday, a few commentators moved with amazing alacrity toward the assumption of merit-deficit on the part of Catholic and Baptist claimants, well before any evidence had been examined and without any support in the literature. Others more deliberatively pointed to the small shares of Catholic and Baptist claimants in our study, compared to their proportion in the general population. From this they drew the plausible inference that most mainstream believers have little need for court-ordered accommodation and thus the few who file suit may be outliers making more extreme demands.
However, the Catholics and Baptists who resort to legal action just as likely may be located in discrete areas less hospitable to traditionalist Christians, as what counts as the mainstream varies enormously by geography. Moreover, these claimants were compared not only to minority religious groups whose claims might be seen as more likely to raise vital objections to repression by a hostile society, but also with others whose position on the religious spectrum falls closer to the middle. And remember some of these are defensive claims by involuntary (not self-selecting) parties to suit.
We also should inquire whether the design of the study and the evidence from the data shed any light. So I turn to what some have insisted is an endogeneity problem, or what social scientists describe as questions of omitted variable bias or inadequate specification of the model. However framed, the issue is whether the less-successful claims raised by Catholics and Baptists were comparable in merit to those raised by others. Social scientists have not yet found the Holy Grail of an objectively determined and replicable measure of legal merit. Nonetheless, our study included three different, admittedly crude, proxies for claim strength or validity.
First, we included case-type control variables to ensure that any relationship discovered was not an artifact of a correlation between a religious variable and a particular type of case. As Donald Songer and Susan Tabrizi well explain, “integrated models will be incompletely specified unless they include the particular case facts that are most relevant for the type of cases examined.”
Second, because freedom of speech is one of the most vigorously protected constitutional rights, claims involving religious expression ought to be among the strongest religious liberty claims. When we separated out religious expression claims, our results remained stable.
Third, and most importantly, focusing upon published decisions provides a rough measure of claim quality. By examining published decisions, we actually biased our database in favor of decisions that raise highly visible, controversial, landmark, or difficult questions of religious freedom. The set of published opinions is likely to be skewed toward those cases that raised viable, as opposed to frivolous, claims.
We also have the raw data so that we might see the types of claims that Catholics and Baptists bring into the courts. As addressed yesterday, the diminished success of Catholics and Baptists may be attributed to their greater tendency to resist application of various social welfare regulations and anti-discrimination laws to church-related institutions, because judges regard such regulatory measures and civil rights laws as serving especially compelling public interests.
Some commentators have seized upon precisely this point, which they characterize as going to the legal merits of the claim. Such an appraisal of merit, however, shades into little more than a subjective aversion to the cultural values expressed by traditional religionists and a subjective preference for the present-day priorities of secular liberalism.
Why should the welfarist, regulatory, and anti-discrimination agendas of the moment be regarded as more impervious to claims of religious conscience than the old-style governmental interests of law and order and loyalty to American democracy that were invoked in days past to suppress minority religious groups? Should we not be suspicious of the rather convenient (and downright dangerous) argument that the scope of religious liberty for others neatly dovetails with and is calibrated to our particular political preferences? More responses to comments tomorrow.
Levy Fellowships at George Mason Law School:
Some readers may be interested in applying for the Levy Fellowship program at George Mason Law School.
Eligibility requirements are as follows:
The Robert A. Levy Fellowships in Law & Liberty were created through the generosity of Dr. Robert A. Levy, a 1994 graduate of the law school. Through this fellowship program, Dr. Levy seeks to encourage young scholars to enter the academic field of law and economics by sponsoring their pursuit of a J.D. degree. Fellowship grants cover tuition and fees and provide a substantial stipend for up to three years.
To be eligible for a Levy Fellowship, an applicant must either (1) have earned a Ph.D. in economics, philosophy, political science, finance, or a related field from an accredited university or (2) have successfully completed all course work in one of the above fields and have passed a general exam for a Ph.D. in one of those fields from an accredited university. Additionally, each fellow must pledge that it is his or her intention to pursue a policy-related or an academic career with an interdisciplinary teaching and research specialization.
Two or more fellowships per year are granted to entering law students. Fellowship grants cover tuition and fees at the George Mason University School of Law and provide an average annual stipend of as much as $22,000 for up to three years.
Fellowships are granted for one academic year and are renewable, on evidence of satisfactory progress, for up to two additional years.
Additional information on how to apply is available here. The deadline for Applications is April 1, 2006.
In addition to the other benefits, Levy Fellows are participants in the Levy Fellows Workshop program at the law school, at which the Fellows present works in progress as well as inside and outside faculty. The Spring Levy Fellows workshop schedule is here.
Alumni of the Levy Fellows program include Professors Jonathan Klick of Florida State Law School and Moin Yahya of the University of Alberta School of Law as well as several lawyers at the Federal Trade Commission and elsewhere in the federal government.
Wednesday, March 1, 2006
More Details (and More Speculation) on the NSA Surveillance Program:
Attorney General Alberto Gonzales has sent a letter to the Senate Judiciary Committee following up on his testimony about the NSA domestic surveillance program. The new letter adds a few details and corrects a few potential misimpressions from the AG's live testimony. Among the more interesting tidbits: The NSA surveillance program was authorized by the President very soon after 9/11. Specifically, it had already been authorized by the time the President signed the Patriot Act into law on October 26, 2001. Also pretty interesting: The Gonzales letter gives a very strong hint that the initial legal justification for the NSA program within the Executive Branch was mostly a strong Article II claim of inherent power, and that the AUMF argument that the Administration is relying on now did not provide the primary legal basis for the program when it was enacted. See pages 5-6. Given that we now know the NSA program was approved by late October 2001, it seems at least possible (depending on how you read the letter) that the program may have been approved before the AUMF was even passed. That would have required really fast work, as the AUMF was passed about a week after 9/11, but it's at least a possibility. What changed that explains the current primary reliance on the AUMF argument? One plausible answer is the Supreme Court's June 2004 decision in Hamdi v. Rumsfeld. Most of the Hamdi opinions are hard to reconcile with the Administration's broader Article II claims. In addition, Justice O'Connor's plurality opinion offered a relatively broad interpretation of the AUMF, making the AUMF arguments more plausible (if, in my mind, ultimately unpersuasive). The shift in legal ground may also explain why the scope of the NSA program and the arguments being made in favor of it don't match very well: It seems that the Administration's arguments in recent weeks weren't the major arguments DOJ was relying on when the program was designed and approved. UPDATE: More on this from The Anonymous Liberal.
Cool in a different way:
Here is another basketball video from GoogleVideo (hat tip Club For Growth Blog), that is cool in an entirely different way than the Jordan commercial to which I linked yesterday (but you have to stay with it, it does not go where you think it is going at first). Apparently the embedding function--which I think is pretty cool in itself--is not available for this clip, so you have to click here.
I enabled comments for comments on this clip as well as on the Jordan video which still gives me chills after watching it 10 times. If you have not yet seen the Jordan clip use the chain link below to get to yesterday's post.
Would Journalists Lose Geneva Convention Protections If They Arm Themselves in Self-Defense?
Lawprof Kevin Heller (Opinio Juris) says no, despite the International News Safety Institute's contrary views. (Of course, the pragmatic costs-and-benefits question facing each journalist on this is separate from the legal question.)
Actors:
An easy one. What do these actors have in common?
Warren Beatty Kevin Costner Clint Eastwood Mel Gibson Robert Redford
The Simpsons v. The First Amendment:
Quick, without looking or reading on, how many of the liberties protected by the First Amendment can you name?
If you can name more than one, you're among the elite in constitutional literacy in the United States.
Says the AP:
Americans apparently know more about "The Simpsons" than they do about the First Amendment.
Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.
The study by the new McCormick Tribune Freedom Museum found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.
The survey also found that more Americans could name the three "American Idol" judges than could name three rights guaranteed by the First Amendment.
These results are amusing, perhaps disappointing, but not terribly surprising. I wonder how many lawyers could name the freedoms beyond speech and religion. And the survey doesn't really tell us much about the state of practical knowledge in the country. My sense is that most Americans know they have some sort of right to speak their minds and that even people who disagree with them do, too. They also probably understand that they and their neighbors can worship God or not, more or less in their own way. Their grasp of the Establishment Clause is probably less firm, but in that they are joined by the Supreme Court. The other three freedoms listed in the First Amendment (press, assembly, and petition) are historically important and could be valuable in theory, but have played little role independent of free speech in the Supreme Court's jurisprudence.
By the way, I count six (not five) freedoms explicitly listed in the First Amendment: no establishment of religion, free exercise, free speech, press, assembly, and petition. If we added the unenumerated freedom of association we'd get to seven. The survey designers lumped the Establishment Clause and the Free Exercise Clause together as "freedom of religion," but it seems to me the clauses serve distinct (yet complementary) roles in protecting religious freedom.
There is good news in the survey for advocates of the living Constitution:
About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.
I had thought the constitutional right to own a pet was found in the Ninth Amendment, or perhaps among the transcendental liberties protected by the Due Process Clause of the Fourteenth Amendment. Is there a more suitable constitutional home for the right to own a pet?
Explaining the Disadvantage in Court for Traditionalist Christians Making Religious Liberty Claims (Part Two):
In yesterday’s post, when exploring the reasons why traditionalist Christians are significantly less likely to succeed with religious liberty claims, compared to other religious groupings including members of minority religions, I turned aside the possibility of old-fashioned bigotry and questioned the assertion that supposedly mainstream believers do not need or deserve judicial protection for religious conscience.
In today’s post, I suggest that because Catholic and Baptist claimants tend to assert controversial claims of conscience that conflict directly with the social policy-initiatives of liberal secular governments, judges that are disproportionately drawn from the cultural elite may (at the margin) react more skeptically or hostilely to such claims, even aside from the legal merits (and there'll be much more on the merits issue tomorrow).
During the course of American history, both the political left and the right at different times and in different ways have posed threats to our most cherished liberties, whether freedom of speech, procedural protections against government action, or free exercise of religion. In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities.
What Catholics and evangelical Protestants tend to hold in common today is a general adherence to traditional or conservative social values that may conflict with the commands of liberal governments. Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country.
William Marshall has argued that “[a] court is more likely to find against a claimant ... when the religion is bizarre, relative to the cultural norm.” I submit that the opposite may be more common, given the natural human tendency to respond more vigorously to the perceived threat next door than to the peculiarity on the far side of town.
Thus, when we hear stories of strange (to us) religious beliefs and practices, our reaction tends to be one not of antipathy or disagreement, but of detached curiosity. Because such unconventional thinking or conduct is so distant from our own, we are less likely to compare those attitudes and actions against our own beliefs and practices.
By contrast, the typical American may be more threatened by that which is familiar and close at hand, but regarded as morally reprehensible, than by that which is foreign and remote (culturally if not geographically). We may react more defensively to the neighbor who is in almost all aspects similar to ourselves but who departs markedly on some essential point that is crucial to our own sense of values or identity. Consider our response toward someone who looks much like us, grew up in similar ways, lives in the same neighborhoods, attended the same schools, holds the same kinds of jobs, but who then holds what we see as peculiar and abhorrent views on human sexuality or abortion and reproduction or relations between the genders or responsibility for the community and social welfare.
Accordingly, when a judge encounters a religious practice that departs so radically from the conventional as to appear wholly other, the judge may be more willing to tolerate it as harmless for that very reason. However, when the follower of a traditional religious group presses a claim of conscience that folds into one of the conventional, if controversial, perspectives within American public life, a judge may pass the religious claim across the metric of his or her own worldview.
Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge’s own religious or political viewpoints. Accordingly, orthodox Christians who seek accommodations that reflect traditional religious values may not be at all well-positioned for litigative success in the modern era—especially before a judiciary that is drawn largely from the cultural elite.
Law Faculty Blogging.--
An article about law faculty blogging in the National Law Journal has received a lot of discussion in the legal blogosphere. Lawblogger extraordinaire Paul Caron has a nice roundup.
I wanted to comment further on a point highlighted by Ann Althouse:
[J]ust counting the numbers of bloggers is not very accurate. For example, Chicago has a high blogger count because it runs a group blog with a long list of faculty names. I'd like to see a weighted count — if you're going to get into counting — that reflects the actual amount of blogging that is going on. But then if you did that, you'd probably want to count the blogging that is specifically about law, as opposed to, say, "American Idol."
Indeed, the school-by-school counts of law professor bloggers are:
14 University of Chicago
7 University of California at Los Angeles
7 University of San Diego
5 George Washington
5 George Mason
4 Stanford
4 Northwestern
4 Ohio State
4 University of California, Davis
4 University of Cincinnati
The problem with this list is obvious: Can Chicago really be the leading blogging law school without a single major blogger on its full-time faculty? Dick Posner, who is a part-time senior lecturer there, runs an excellent and reasonably popular blog with Gary Becker that nonetheless gets in a month roughly as many visitors as Glenn Reynolds gets in a few peak hours in a single day.
Former dean and former provost Geoff Stone blogs at the extremely popular HuffingtonPost, but he contributed only one post to Huffington in the month of February.
Most of Chicago's bloggers post at the U. of Chicago Faculty Blog. Though also of high quality, it had barely more than a dozen posts during the entire month of February. It will probably evolve into a successful blog, but with 3-4 posts a week on average, there is not yet enough content to generate regular readers.
From skimming the list of the most popular blogs at The Truth Laid Bear on Tuesday night, it appears that the most popular blog run mostly or completely by full-time professors in any field is Instapundit (8th in traffic, 2d in links), followed perhaps by the Volokh Conspiracy (55th in traffic, 11th in links). Although the TruthLaidBear.com website doesn't track all blogs, it appears that we are a distant second to Glenn among all academic blogs, whether measured by links or by traffic, It is entirely possible that I've missed an academic blog in another field between Glenn's blog and Eugene's group blog.
In the number of links, Professor Bainbridge is 59th among all tracked blogs at TruthLaidBear (but 207th in traffic), and Althouse is 81st in links and 107th in traffic.
One of the problems in doing empirical research is the quantitative fallacy: the belief that what is easiest to count substantively counts the most. Although Chicago may develop into a significant blogging law school, it does not yet reach the influence in the blogosphere of UCLA, Tennessee, San Diego, GW, George Mason, or Wisconsin, among others.
Tuesday, February 28, 2006
Power Line Comments on the U.N. Conference on Islamic/Western Relations:
Much worth reading. Note particularly the criticisms of Archbishop Desmond Tutu's remarks, and the comparison between the Iranian President's pious remarks about how "We must respect the beliefs of other nations and religions whether we believe in them or not" and how Iran actually treats the beliefs of other religions within Iran.
Thanks to InstaPundit for the pointer.
Salman Rushdie, Ayaan Hirsi Ali, Bernard-Henri Lévy, and Others
publish a Manifesto, "Together facing the new totalitarianism": After having overcome fascism, Nazism, and Stalinism, the world now faces a new totalitarian global threat: Islamism.
We, writers, journalists, intellectuals, call for resistance to religious totalitarianism and for the promotion of freedom, equal opportunity and secular values for all.
The recent events, which occurred after the publication of drawings of Muhammed in European newspapers, have revealed the necessity of the struggle for these universal values. This struggle will not be won by arms, but in the ideological field. It is not a clash of civilisations nor an antagonism of West and East that we are witnessing, but a global struggle that confronts democrats and theocrats.
Like all totalitarianisms, Islamism is nurtured by fears and frustrations. The hate preachers bet on these feelings in order to form battalions destined to impose a liberticidal and unegalitarian world. But we clearly and firmly state: nothing, not even despair, justifies the choice of obscurantism, totalitarianism and hatred. Islamism is a reactionary ideology which kills equality, freedom and secularism wherever it is present. Its success can only lead to a world of domination: man's domination of woman, the Islamists' domination of all the others. To counter this, we must assure universal rights to oppressed or discriminated people.
We reject « cultural relativism », which consists in accepting that men and women of Muslim culture should be deprived of the right to equality, freedom and secular values in the name of respect for cultures and traditions. We refuse to renounce our critical spirit out of fear of being accused of "Islamophobia", an unfortunate concept which confuses criticism of Islam as a religion with stigmatisation of its believers.
We plead for the universality of freedom of expression, so that a critical spirit may be exercised on all continents, against all abuses and all dogmas.
We appeal to democrats and free spirits of all countries that our century should be one of Enlightenment, not of obscurantism.
12 signatures
Ayaan Hirsi Ali
Chahla Chafiq
Caroline Fourest
Bernard-Henri Lévy
Irshad Manji
Mehdi Mozaffari
Maryam Namazie
Taslima Nasreen
Salman Rushdie
Antoine Sfeir
Philippe Val
Ibn Warraq
Presentations:
Ayaan Hirsi Ali
Ayaan Hirsi Ali, from somilian origin, is member of Dutch parliement, member of the liberal party VVD. Writter of the film Submission which caused the assasination of Theo Van Gogh by an islamist in november 2004, she lives under police protection.
Chahla Chafiq
Chahla Chafiq, writer from iranian origin, exiled in France is a novelist and an essayist. She's the author of "Le nouvel homme islamiste , la prison politique en Iran " (2002). She also wrote novels such as "Chemins et brouillard" (2005).
Caroline Fourest
Essayist, editor in chief of Prochoix (a review who defend liberties against dogmatic and integrist ideologies), author of several reference books on « laicité » and fanatism : Tirs Croisés : la laïcité à l'épreuve des intégrismes juif, chrétien et musulman (with Fiammetta Venner), Frère Tariq : discours, stratégie et méthode de Tariq Ramadan, et la Tentation obscurantiste (Grasset, 2005). She receieved the National prize of laicité in 2005.
Bernard-Henri Lévy
French philosoph, born in Algeria, engaged against all the XXth century « ism » (Fascism, antisemitism, totalitarism, terrorism), he is the author of La Barbarie à visage humain, L'Idéologie française, La Pureté dangereuse, and more recently American Vertigo.
Irshad Manji
Irshad Manji is a Fellow at Yale University and the internationally best-selling author of "The Trouble with Islam Today: A Muslim's Call for Reform in Her Faith" (en francais: "Musulmane Mais Libre"). She speaks out for free expression based on the Koran itself. Née en Ouganda, elle a fui ce pays avec sa famille musulmane d'origine indienne à l'âge de quatre ans et vit maintenant au Canada, où ses émissions et ses livres connaissent un énorme succès.
Mehdi Mozaffari
Mehdi Mozaffari, professor from iranian origin and exiled in Denmark, is the author of several articles and books on islam and islamism such as : Authority in Islam: From Muhammad to Khomeini, Fatwa: Violence and Discourtesy and Glaobalization and Civilizations.
Maryam Namazie
Writer, TV International English producer; Director of the Worker-communist Party of Iran's International Relations; and 2005 winner of the National Secular Society's Secularist of the Year award.
Taslima Nasreen
Taslima Nasreen is born in Bangladesh. Doctor, her positions defending women and minorities brought her in trouble with a comittee of integrist called « Destroy Taslima » and to be persecuted as « apostate »
Salman Rushdie
Salman Rushdie is the author of nine novels, including Midnight's Children, The Satanic Verses and, most recently, Shalimar the Clown. He has received many literary awards, including the Booker Prize, the Whitbread Prize for Best Novel, Germany's Author of the Year Award, the European Union's Aristeion Prize, the Budapest Grand Prize for Literature, the Premio Mantova, and the Austrian State Prize for European Literature. He is a Commandeur of the Ordre des Arts et Lettres, an Honorary Professor in the Humanities at M.I.T., and the president of PEN American Center. His books have been translated into over 40 languages.
Philippe Val
Director of publication of Charlie Hebdo (Leftwing french newspaper who have republished the cartoons on the prophet Muhammad by solidarity with the danish citizens targeted by islamists).
Ibn Warraq
Ibn Warraq , author notably of Why I am Not a Muslim ; Leaving Islam : Apostates Speak Out ; and The Origins of the Koran , is at present Research Fellow at a New York Institute conducting philological and historical research into the Origins of Islam and its Holy Book.
Antoine Sfeir :
Born in Lebanon, christian, Antoine Sfeir choosed french nationality to live in an universalist and « laïc » (real secular) country. He is the director of Les cahiers de l'Orient and has published several reference books on islamism such as Les réseaux d'Allah (2001) et Liberté, égalité, Islam : la République face au communautarisme (2005).
Thanks to Agora and InstaPundit for the pointer.
Stuntz on the Future of Harvard:
Harvard lawprof Bill Stuntz has a very interesting (and very pessimistic) essay in The New Republic (free registration req'd) on the Lawrence Summers resignation and the future of Harvard. An excerpt: Harvard is the General Motors of American universities: rich, bureaucratic, and confident--a deadly combination. Fifty years from now, Larry Summers's resignation will be known as the moment when Harvard embraced GM's fate. From now on, the decline will likely be steep. And not only at Harvard: Among research universities as in the car market of generations past, other American institutions will follow the market leaders, straight to the bottom. The only question is who gets to play the role of Toyota in this metaphor.
I Love Dahlia Lithwick's Writing Style:
Check out these opening paragraphs about the Anna Nicole Smith case:
It's difficult to imagine two more different pieces of circuitry: The Supreme Court is hard-wired to suck out the drama from even the most emotionally charged conflicts. Bush v. Gore, the partial-birth-abortion case, the enemy-combatant cases -- each was briefed and argued like, well, like a bankruptcy case. Life, death, anthrax scares: The court somehow scatters its own unique brand of boringness and uptightness over every drama it touches.
Whereas Anna Nicole Smith exists exclusively for psychodrama. If she isn't wearing something sparkly or saying something filthy, she might not exist at all. Which is why this morning's collision between the two worlds is so compelling. It's probably well worth the hundreds of millions of dollars in question for Anna to rein in the jubblies, dress in sober black, and sit still for an hour. She doesn't give interviews or sign autographs as she enters or exits the marble tomb, although some reporters are mowed flat in the scrum. In the first dispute today -- the ethos of Anna Nicole versus the ethos of the Supreme Court -- the court is the clear winner....
Anna Nicole Smith Has Her Day in (the US Supreme) Court.--
I had been meaning to post a few days ago on today's Supreme Court argument in the Anna Nicole Smith case (since it overlaps with one of the areas I write in: Estates & Trusts). After the 9th Circuit reversed an 88.5 million dollar bankruptcy judgment in favor of Anna Nicole Smith, Anna--using her usual restraint--told a reporter: "The judges were so paid off."
Despite Anna's ridiculous claim about the 9th Circuit, Anna's lawyers sought certiorari in the US Supreme Court. Not only did the Court grant cert., but the Solicitor General filed a brief supporting her side of the case. So going into the oral arguments today, Anna Nicole Smith (aka Vickie Lynn Marshall) had 3 things going for her:
1. The Supreme Court reverses more cases than it affirms.
2. The 9th Circuit is known, rightly or wrongly, as the most reversed circuit.
3. One of the best predictors of winning in the Supreme Court is for a private citizen to have the Solicitor General join your side.
Then Anna had a fourth thing going for her: the 9th Circuit statement of the law is clearly wrong. Before I explain why, I reprint most of SCOTUSBlog's good account of the argument held today:
For all the media fascination with the second case argued Tuesday, Marshall v. Marshall (04-1544), the actual argument was a treat mainly for experts in civil procedure and the laws of bankruptcy and inheritance. The case involves what Judge Richard Posner once described as "one of the most mysterious and esoteric branches of the law of federal jurisdiction."
The single aspect of that issue that the Court was reviewing is whether the so-called "probate exception" to federal court jurisdiction bars federal bankruptcy courts from deciding a case that might implicate an estate that is simultaneously being administered in a state probate court. The tone was set for the argument when Vickie Lynn Marshall's attorney, Kent L. Richland of Los Angeles, began his presentation this way: "This is a bankruptcy case."
Vickie Lynn (who made fame under her performing name Anne Nicole Smith) was married for 14 months to billionaire Texan J. Howard Marshall. She has been seeking in federal bankruptcy court to recover more than $88.5 million in damages awarded her, against Marshall's son, Pierce. That sum is to compensate her for the son's attempt to undermine — allegedly by fraud — her claims that her husband intended to give her, while he was alive, a substantial gift.
Richland ultimately seemed to have most if not all of the Court with him, after overcoming a somewhat shaky start when he argued excessively that bankruptcy law allows no exceptions whatsoever for estate probate matters when those involves a disputed asset — here, Vickie Lynn's recovery in her tort lawsuit against Pierce. (Texas probate courts would later award Vickie Lynn nothing from the estate itself.)
Justice Antonin Scalia bluntly suggested that Richland back off of such a sweeping claim, and other Justices joined in. Essentially, Richland did. "It is not necessary to our case," he conceded. "Obviously, this case is miles away from probate...This case has nothing to do with probate jurisdiction." The attorney was not rigorously challenged after that, as the Justices explored the interrelationship between bankruptcy law and Texas probate law, seemingly inclined to favor the former.
Richland picked up some support from Deanne E. Maynard, an assistant to the U.S. solicitor general, who urged the Court to clear up the confusion among lower courts on the "probate exception" but to do so by giving it a very narrow scope, so that it applied only when specifically interpreting a will would be at stake. Justice Scalia, however, suggested that Maynard may have suggested taking away too much of a bankruptcy court's jurisdiction if will interpretation were completely beyond its reach.
A Yale law professor, G. Eric Brunstad, Jr., of New Haven, Conn., representing Pierce Marshall, made a thoroughly competent argument that Texas probate law should prevail — but it was an argument that attracted no significant support from the bench. His plea essentially boiled down to a claim that Vickie Lynn could bring her claim based on the tort verdict only by undermining the entire "estate plan" that had been probated in Texas court. "It is never appropriate," he argued, "for a federal court to invalidae a will or an estate plan," and that is what Vickie Lynn would have to do to prevail, he said. . . .
The problem with the 9th Circuit opinion is that it assigns to state probate courts jurisdiction over matters that determine the property subject to probate (often to the exclusion of federal courts), including specifically theories based on "tax liability, debt, gift, bequest, tort." This can't be right. State probate courts do not determine federal estate tax liability under the Internal Revenue Code, nor are they the main court source determining pensions and insurance governed by ERISA. So the 9th Circuit's statement of law can't stand.
Yet, even if the law announced by the 9th Circuit is overturned, as it almost certainly must be, there may be other ways that Anna could still lose her case eventually. For example, the District Court's opinion explicitly found that Texas law would recognize tortious interference with a lifetime gift, even though Texas had no authority on this one way or the other.
For those who are interested, the district court opinion (Marshall v. Marshall, 275 B.R. 5 (C.D. Cal. 2002), reversed by the 9th Circuit) has a fascinating account of Anna's courtship and marriage, as well as the court's staggering conclusions that Anna's stepson Pierce and/or his lawyer had committed repeated fraud by altering and backdating documents involved in the litigation. One surprising courtship fact: Anna met J. Howard Marshall because she was working the day shift at the strip club since she was too heavy to be assigned the better evening shift.
By the way, according to the Forbes list of the richest Americans, Pierce Marshall is worth 1.7 billion dollars, just behind Mark Cuban.
Wonkette, not surprisingly, is having a field day, with multiple posts, including this one.
UPDATE: The Bankruptcy Litigation Blog has a nice roundup of commentary on the Marshall (Smith) case.
C-Span Interview With Glenn Reynolds:
C-Span's Brian Lamb interviewed Glenn Reynolds recently for C-Span's new "Q-and-A" program. The goal of the Q-and-A program is to "introduce you to interesting people who are making things happen in politics, the media, education, and science & technology in hour-long conversations about their lives and their work." The video is here, and the transcript is here.
Chills:
I thought that videos involving Michael Jordan could not give me chills anymore. I was wrong.
Doctors and Guns:
Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:
A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:...
22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.
The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.
First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.
Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.
The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech isues, outside the context of advertising, regading professional regulation.
Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.
The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.
I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.
Let me address some of the arguments which commenters offered regarding the bill.
Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.
The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.
However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.
One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)
Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.
Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disamament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could. Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and would be less safe in their homes as a result. There is sufficient evidence for a reasonable legislator to conclude that physician anti-gun counseling is junk science at its worst. (Click here for one example.) Reasonable legislators can differ, of course; I am just pointing out what a reasonable legislator could vote for the bill.
Another issue raised by commenters was gun registration. Again, in the 1910 model of medical practice, records about patient gun ownership would be widely diffused among many independent physicians. The record-keeping by individual physicians would not amount to a widespread registration system.
In contrast, today there is a very powerful trend towards the centralization of medical data. As some commenters pointed out, the centralizing trends are encouraged by insurance companies, health care corporations, and the government. Physician questioning and about firearms usually takes place in the context of the physician filling out a survey which becomes part of the patient's permanent medical record. There are many circumstances under which health survey data by a physician may be centralized by entities other than the physician. Federal law makes patient records available to law enforcement authorities under some circumstances.
There is no denying the historical facts that in the United States and in other countries, gun registration records have sometimes been used for confiscation. A person who wants strong protection the right to arms would generally favor preventing the accumulation of data which might facilitate gun confiscation, even if the risk of gun confiscation at present is very low.
Putting the confiscation risk aside, registration is, in itself, harmful to the right to arms. Even if there were no possibility of confiscation, constitutionally-sensitive people would oppose the creation of centralized lists regarding any aspect of a person's exercise of her constitutional rights. You shouldn't be put on a government list--or on the list of a big corporation which is heavily funded by the government and whose records are readily subject to government inspection--just because you exercised a constitutional right. That is one reason that Congress in 2003, and in 1986, 1968, and during World War II enacted legislation to block federal gun registration.
Again, I'm not saying that a legislator must be so constitutionally conscientious that she vigilantly blocks every form of gun registration. I'm saying that a reasonable legislator can be so conscientious, just as another legislator could be so conscientious about free speech as to oppose even constitutionally-valid regulation of licensed professionals.
Finally, there is the broader social question of whether legislatures or medical licensing boards should attempt to impose any controls about physician counseling (including counseling in a coercive context) about the exercise of other lifestyle choices. If there is some evidence that religious people are healthier and live longer, is there anything wrong with physicians encouraging patients to go to church? If the weight of evidence suggests that moderate drinking is healthier than abstention, then would we object if a physicians group working with a pro-drinking lobby (just as the American Academy of Pediatrics works with gun prohibition groups) succeeds in encouraging family practitioners to tell their patients "Drink up! It's good for you."
Persons who place free speech values first in their legislative priorities would oppose almost all restrictions on physician counseling--even if the athiest patient in Alabama feels oppressed when her HMO doctor tells her "You ought to start going to church. It's healthy."
I respect the speech-protective values of opponents of the Virginia bill. And I also see that proponents of the bill had good arguments about other constitutional values, public safety, and medical ethics. Perhaps the Virginia medical ethics bill is an occassion where both sides should agree that there were reasonable arguments for both positions.
"Although":
Since I'm usage-blogging, I thought I'd repost my remarks from last year about this, especially now that we have comments enabled. My verdict on "Although": It's perfectly permissible English, but I hate it, to a degree irrationally disproportionate to its (slight) inferiority to "though."
I know reasonable minds may differ, but there it is. "'Though,' not 'although'; 'on,' not 'upon'"; that's my motto (though one that may admit of occasional exceptions as to "upon").
Etymology vs. Meaning:
A commenter on the prescribe/proscribe thread writes, "To decimate is to kill one in ten," strongly suggesting that this is the only proper meaning for the term.
This is incorrect. To decimate originally meant to kill one in ten, though I wouldn't be surprised if even some ancient Romans used it loosely or figuratively. Today, the term is considerably broader. You may be annoyed by this usage; you may counsel cautious writers against it (as I do in my Academic Legal Writing book); but I know of no sensible definition of "incorrect" under which the usage is incorrect, and of no sensible definition of "is" under which "To decimate" is only "to kill one in ten."
Of course, the same applies in lots of other cases. Journal comes from the word for "day," but today also means "periodical," including periodicals published at much longer intervals (e.g., the Yale Law Journal). Vaccine comes from "vaccinia," the name for cowpox (which was used to inoculate people against smallpox), but today you can have vaccines against other diseases that are made from things other than cowpox. Etymology is interesting -- but it's not the same as meaning.
"Lead Articles" in Law Reviews:
Every once in a while, I come across a c.v. boasting that the author published the "lead article" in a particular law review. I've also had young colleagues ask me whether they should publish in a higher-ranked law review, or a slightly lower-ranked one that offered them "lead article" status.
My own view is that "lead article" status is completely irrelevant. First, no one actually sits down and reads an entire issue of a law review, but instead read either reprints, Hein-online printouts, or Westlaw or Lexis versions. So what's the difference if the article is the "lead" or not? No one's ever going to see it in that format, which is why no one (should) care. Second, the best law reviews seem to have a policy of publishing multiple articles in one issue alphabetically by author. I've had the "lead article" several times in major law reviews simply because my last name begins with "B." To me, at least, bragging about one's "lead article" smacks of an attempt to upgrade the status of a mediocre placement, or bespeaks a naivete about the law review market (one law review editors take advantage of, in my experience, when trying to get articles from junior faculty).
In short, in my opinion, never turn down a better placement for lead article status. And, if you want to look savvy to other law professors, never put (lead article) next to a publication on your c.v.
If others have a different opinion, or I'm missing some great insight about lead articles, feel free to comment.
UPDATE: Geoff Manne posted similar thoughts at The Conglomerate last November.
The Market for Law Review Submissions:
Over at Concurring Opinions, Dave Hoffman offers a very interesting post on the market for law review submissions.
Court Takes Narrow View of Hobbs Act in Abortion Clinic Case:
The Supreme Court has handed down a unanimous opinion in Scheidler v. National Organization for Women, a case involving legal remedies to block abortion clinic protests. Here is the introduction of the opinion, authored by Justice Breyer: A section of Title 18 of the United States Code (called the Hobbs Act) says that an individual commits a federal crime if he or she "obstructs, delays, or affects commerce" by (1) "robbery," (2) "extortion," or (3) "commit[ting] or threaten[ing] physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section." §1951(a) (emphasis added). The dispute in these cases concerns the meaning of the underscored words, in particular the words, "in furtherance of a plan or purpose to do anything in violation of this section." Does this phrase refer to (violence committed pursuant to) those plans or purposes that affect interstate commerce through robbery or extortion? Or does it refer to (violence committed pursuant to) those plans or purposes that affect interstate commerce, plain and simple? If the former, the statute governs only a limited subset of violent behavior, namely, behavior connected with robbery and extortion. If the latter, the statute governs a far broader range of human activity, namely, all violent actions (against persons or property) that affect interstate commerce. In our view, the former, more restrictive reading of the Act is the correct interpretation.
Explaining Why Traditionalist Christians are at a Disadvantage in Making Religious Liberty Claims in Court (Part One):
In yesterday’s guest post, based upon our empirical study of a religious liberty cases in the federal courts, I reported that the conventional wisdom that members of minority religions are significantly less likely to secure a favorable hearing from judges in the modern era was found to be without support. Just as importantly, the myth that members of outsider faiths fail at a disproportionate rate proves to be only half of the story. In fact, adherents to traditionalist Christian faiths, specifically Roman Catholics and Baptists, are the ones who enter the courthouse doors at a distinct disadvantage.
So why would those whose religious views are within the mainstream of American society be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices? That question provoked a plethora of vigorous comments yesterday, many of which suggested preferred answers or registered objections to the study. I am much comforted that these comments raised little that I had not already anticipated and planned to address in the coming days. Please be patient as the discussion unfolds a little more each day, eventually addressing most of these points in turn.
The simplest, if the most disturbing, explanation for the impaired litigation success of Catholics and Baptists would be that old-fashioned religious bigotry remains at work. To be sure, as several scholars have documented in recent years (Philip Hamburger, Thomas Berg, John Jeffries, James Ryan, Richard Garnett), the evolution of church-state doctrine in the courts historically was substantially influenced by cultural prejudices against the Catholic Church as an institution and Catholics as religious minorities in American society. At earlier points in American history, Baptists too suffered persecution in certain regions for their enthusiastic and evangelical religious practices.
However, despite the sobering lessons of history, the skeptical judicial audience encountered by Catholic and Baptist claimants in our study need not be understood in terms of ordinary bias. As common as it may be these days to assume malice on the part of others, I regard a charge of unthinking prejudice here as unfair and too simplistic.
A second and quite plausible explanation for the results in our study may be that the very fact of near-mainstream status works against a successful request for accommodation. Judges may consciously or subconsciously conclude that followers of those religious traditions are capable of effectively participating in the political process and thus are neither in need nor deserving of protection through judicial intervention from the results of that political process. Indeed, confirming that such assumptions are widespread, some of yesterday’s comments insisted upon this explanation.
Similarly, because Catholics and Baptists are perceived by judges as having been fully acculturated into American society, individuals from such religious traditions may not be taken as seriously when asserting a conflict between their religious values and a government directive. As Michael McConnell has argued, judges may be unwilling to believe that “ordinary Americans” from mainstream religious groups “might entertain religious convictions that are out of the ordinary.” Thus, judges may assume that no mainstream religious believer need seriously fear meaningful repression by majoritarian government or serious burdens on religious conscience.
If this indeed explains the results in part, I submit this would be unfortunate and unjust. Presuming to treat a purportedly mainstream religion with less solicitude because of its supposed political strengths ignores the fact in our pluralist society that what constitutes the conventional in one region of the country may fall well outside of the norm in another. Tom Berg writes (link) that “in many places and institutions in the nation, evangelical Christians dominate culturally and politically and non-Christians constitute minorities,” while “in many other places and institutions, and on certain issues, traditionalist Christians join traditionalist Orthodox Jews as the outsiders.” (And, as suggested by some comments, yes, we specifically controlled in our study for religious demographic factors in the deciding judge’s locality.)
Tomorrow I’ll explore an additional explanation, considering whether the impaired success of traditionalist believers in the court might best be understood as turning on fundamental conflicts about social values. On Thursday, I’ll respond to several comments by addressing the suggestion that Catholics and Baptists lose in court because they should lose, that is, because their legal arguments simply are weaker.
Law Review Board Turnover Dates:
Kaimipono Wenger writes:
Colleagues are talking about it in the hallway. How many boards have switched over? Where exactly are the windows, and when exactly is the "sweet spot" for sending a piece out?
I'm hoping to solicit some responses from our readers, in the comments to this post, to help provide our readers with the information that may help them answer those questions. Are you affiliated with a law review? Has your board turned over? If so, please indicate this in the comments. If enough readers comment, we may be able to collect some useful information. (I believe this could be useful both for the authors, who will send their pieces out at the best time, and for the editors, who will hopefully see fewer premature articles).
Details -- "the West Dakota Law Review board turns over on March 1" -- are particularly appreciated. Thanks!
If you have answers, please go to Prof. Wenger's post and add a comment there. (Please don't post the comments here, since the comments are most useful if they're all gathered in one place.) Thanks!
Word To Avoid,
unless you want to sound pretentious: "limn."
(Post title to avoid, unless you want to sound obnoxious: "Word To Avoid"? Maybe.)
Gentile Jokes:
Today's David Post post reminds me of two Gentile jokes I heard a while back. They mostly make sense when said by Jews to a Jewish audience, but I figure enough of our readers are either Jewish or Jew-savvy enough.
A Gentile is in a clothing store. "How much for that jacket?," he asks. "$500," the salesman says. "OK, I'll take it," the Gentile says. A Gentile calls his mother": "Mother, I know I was supposed to be coming for dinner tonight, but this girl I'm interested in is free tonight and I'd like to get together with her instead." "OK, have a nice time!," says the mother.
For those who aren't Jew-savvy enough, the gag is that these are actually jokes about Jews, not about Gentiles.
Monday, February 27, 2006
Legal Status of Israel's Border and its Defensive Barrier:
Below is a list of statements of law and fact regarding Israel's border, and its right under international law to build a defensive wall. I invite commenters to advance the discussion on these issues in terms of international law. I don't claim to be an expert on the issues of international law raised below, so comments from readers with expertise would be particularly welcome. Please do not use the comments to re-argue general issues about Zionism etc.
1. In November 1947, the United Nations partitioned the British mandate of Palestine. The partition gave the Jews only territories which were already owned by Jews, or which belonged to the British crown.
2. Many Palestinians began a war against Israel as soon as the partition was announced.
3. In May 1948, Israel declared its independence. In response, five Arabs nations immediately declared war on Israel.
4. In 1949, Israel and Jordan signed an armistice which specifically stated that the armistice lines were "without prejudice to future territorial settlements or boundary lines." Jordanian-Israeli General Armistice Agreement, April 3, 1949, Art. VI, sect. 9.
5. In 1967 Israel was attacked by Jordan, which at the time ruled the West Bank and East Jerusalem. Israel had no obligation, under international to vacate any territories until its foes entered into a meaningful peace agreement.
6. Later in 1967, the United Nations Security Council adopted Resolution 242, Notably, the resolution calls for Israel to withdraw from "territories" (not "all territories" or "the territories") as part of a peace agreement by which Arab states would end their belligerence against Israel. Today, most Arab states remain in a declared state of war against Israel.
7. Having acquired the West Bank in a defensive war, Israel later began building settlements on the West Bank. The settlements were built solely on land belonging to the Jordanian government, and not land belonging to individual Arab owners.
8. As a general rule, international law forbids the permanent annexation of territory, even after a defensive war. However, Israel's settlements did not violate this rule, because they were built in areas where no internationally-agreed international border existed. (See points 4 and 6).
9. Later, Jordan signed a peace treaty with Israel, and renounced all claims to the West Bank and East Jerusalem. Jordan's renunciation of the West Bank necessarily included a renunciation of all claim to West Bank land which had been owned by the Jordanian government. The renunciation therefore perfected Israel's legal ownership of the former Jordanian government lands in the West Bank.
10. Even if the last sentence of point 9 is incorrect, a nation has no obligation under international law to surrender control of territory to an entity which is in a state of war with the nation. The constitution of the PLO and the Hamas charter both explicitly call for the destruction of the state of Israel. Accordingly, Israel has no international law obligation to give any territory to a government controlled by the PLO or Hamas. (Had the PLO followed through on its promises in the Oslo Accords, and actually ended its war against Israel, the legal situation might be different.)
11. Under international law, including the Fourth Geneva Convention, nations may build defensive structures in enemy territory which the nation has captured. The defensive structures may be maintained as long as the enemy remains in a state of belligerence.
12. Israel's right to build a defensive barrier in the West Bank is clear under item 11, since the wall is being constructed while the enemy (PLO/Hamas) is in a declared and actual state of war against Israel. (A temporary truce, subject to unilateral revocation, does not end a state of war.)
13. Israel's right to build the barrier is even stronger under international law, since (pursuant to points 4 and 6 above), the barrier does not extend beyond a legal international border, because the 1949-67 armistice line is not a legal border.
14. International law forbids the permanent annexation of enemy territory, but this point is irrelevant to the defensive barrier, for the reasons listed in items 4, 6, and 13.
15. If and only if the 1949-67 armistice line were a legal border, then Israel's construction of the barrier would be illegal under international law if the purpose of the barrier were for annexation. The barrier would not be illegal if the purpose were for defense (item 11).
16. The Israeli Supreme Court ruled that the barrier is primarily for defense, and accordingly, legal. The International Court of Justice--in a purely advisory and non-binding opinion--stated that the barrier is for annexation, and therefore illegal. The ICJ opinion was defective as a matter of law because it did not properly consider Israel's defensive rights under the laws of war, nor did the opinion acknowledge the legal implications of Security Council 242, which refutes the notion that the 1949-67 armistice line is a permanent, legal international border.
Again, I'm not claiming expertise on the subject-matter of this post, and one major purpose of this post is find out if there are any flaws with the above reasoning, in terms of international law. In your comments, please focus on international law; this means, inter alia, don't waste time by citing UN General Assembly resolutions, statements by diplomats, or other sources which (while important from a policy sense) do not have the authority to create binding international law. Please focus on clear, relevant international law, such as treaties which have been ratified by Israel, or Security Council resolutions.
Related Posts (on one page): - Is Israel in Violation of International Law?
- Legal Status of Israel's Border and its Defensive Barrier:
Knee-Jerk Identity Politics Assumptions:
The Toronto Globe and Mail writes (thanks to OpinionJournal's Best of the Web for the pointer):
Activists who oppose abortion rights are hoping Mr. Bush's choice of two conservative, white, middle-aged male jurists -- John Roberts, the court's new Chief Justice, and Samuel Alito, who replaced the centrist, swing-voter Sandra Day O'Connor -- will herald the end to all legal forms of abortion in the United States.
Roberts' and Alito's being conservative does indeed provide some basis for guessing their position on abortion. But their being male strikes me as not terribly probative; the gender gap on abortion is rather slim (see, e.g., here and here). Likewise, the age gap on abortion seems small or nil.
Finally, that Alito and Roberts are white would suggest that they'd be more supportive of abortion than blacks or Hispanics (see here and here). Of course, these general demographic indicators are useless in predicting the judgments of particular judges. But that's my point: The "white, middle-aged male" qualifiers (and especially the "white, middle-aged" part) are pointless for understanding the issue; the only reason to include them as if they were genuinely relevant seems to be an obsession with identity politics.
Commonly Confused Words:
Prescribe and proscribe -- keep them straight, keep them separate. Oddly enough, both mean (more or less) "enjoin," but let's not go there.
Danish Prime Minister Speaks About the Reaction to the Cartoons,
Danish-speaking blogger Agora translates. An earlier interview with the Prime Minister, from before the controversy and the killings, is here.
State Constitutional Right to Bear Arms Opinion:
The Kentucky Constitution states,
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...
Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
Kentucky courts have rightly read this as protecting people's rights to have guns for their own self-defense ("in defense of themselves") and not just for the common defense. Does this, though, apply to convicted felons? Last Thursday's Kentucky Supreme Court decision in Posey v. State answers "no," but in much more detail than all the other state court decisions that have likewise held that felons are implicitly excluded from state constitutional rights to bear arms. There's even one dissenter, who would hold that some felons (though probably not those convicted of the more serious felonies) do have a right to bear arms under the Kentucky Constitution. If you're interested in either the right to bear arms or the broader question of how courts should interpret Bill of Rights provisions, these opinions are much worth reading.
Newark Airport Sued for Abuse of Person Lawfully Transporting a Firearm:
The Port Authority of New York and New Jersey (which operates Newark Airport) has been sued by the Association of New Jersey Rifle & Pistol Clubs. The facts are these:
The Utah man, Gregg Revell, a real estate broker and family man with no criminal record and a Utah firearms permit, was flying alone from Salt Lake City, UT to Allentown, PA to retrieve a car he bought and drive it home. He was travelling with a firearm for personal protection. As required by Federal law, the firearm was unloaded, cased, locked and inside his luggage when he declared it at check-in in Salt Lake City on March 31, 2005.
Due to an airline-caused baggage error, Mr. Revell missed his connection from Newark to Allentown and had to stay overnight in New Jersey. When he checked in at Newark Airport the next morning to complete his travels, he again declared his firearm, as required by FAA regulations. He was then arrested for possession of a firearm without a New Jersey state license, and imprisoned in Essex County jail for five days until his family arranged bail, which had been initially set unusually high at $15,000 cash (no bond).
But Mr. Revell’s travels were protected by the Firearms Owner Protection Act, a Federal law passed in 1986 to protect law-abiding citizens who travel with firearms. (See 18 U.S.C. § 926A.) That law trumps state and local gun laws and protects interstate travel with firearms under certain circumstances, all of which were present in Mr. Revell’s case. Several months after the arrest, all charges were withdrawn and the prosecutor’s case administratively dismissed.
You can read a press release about the case and the Complaint. The lead attorney is Richard Gardiner of Virginia, a fine lawyer and a long-time friend, with whom I co-authored a law review article arguing that courts should protect the Second Amendment by dismissing abusive lawsuits against firearms companies.
"Moneyball" and GMU Law School:
To followup Todd's post, here is an excerpt from National Review's piece [not online, though Lexis will have it eventually] on George Mason Law School:
To use a baseball metaphor, [former Dean Henry] Manne was a scout who specialized in the minor leagues. Whereas his competitors were obsessed with signing big-name free agents in hot fields such as feminist legal theory, Manne quietly assembled a team of undervalued unknowns. "If the market discriminates against conservatives, then there should be good opportunities for hiring conservatives," says [current Dean Daniel] Polsby. This is exactly the sort of observation one would expect a market-savvy law-and-economics scholar to make. Manne and his successors were able to act on this theory, and though Mason has in recent years expanded its recruitment of non-economics specialists [in part because law and economics scholars have gone from undervalued in the market when Manne was dean to a highly desired commodity], it has stuck by the core observation that law schools routinely overlook raw talent. Associate professor Craig Lerner, for instance, studied under the political theorist Allan Bloom at the University of Chicago and worked for Kenneth Starr on the Whitewater investigation. Listing either of these experiences on a résumé might easily turn off a hiring committee dominated by liberals, which is to say a hiring committee at just about every other law school. And so Lerner turns out to be exactly the type of candidate that attracts GMU. "Have you read Moneyball?" asks Todd Zywicki, another one of Mason’s bright young profs, in reference to the best-selling book by Michael Lewis on how the Oakland Athletics franchise assembled playoff-caliber teams on a limited budget. "We're the Oakland A's of the law-school world."
Todd's right. As a rule, we don't have the cash to recruit big-name laterals, and our top AALS (law school hiring market) choices routinely get offers from top 10 schools that we can't compete with. But we manage to consistently hire top candidates by thinking outside the box about appointments to take advantages of inefficiencies in the market (e.g., not overweighting clerking for the USSC--only 2 former clerks on the faculty, despite our location--worrying more about proven scholarly ability than what law school the candidate attended, plus some trade secrets I won't reveal here).
ClearType:
I just had my Windows configuration reset, and I noticed how clunky many of the displayed fonts looked -- darker, bulkier, and generally less pleasant to look at than before.
Then I remembered that I had ClearType set, and needed to reset it. Fortunately, our invaluable tech support people were able to remind me how to do it: Right-click on the desktop, and then click on Properties / Appearance / Effects / Smooth Edges / ClearType. (At least that's how it's done on my Windows XP office system.)
With ClearType on, things look much nicer than with the default setting. I'm sure it's not for everyone -- the results may vary with screen size, operating system, and of course your personal aesthetic preference -- but I suggest you check it out.
Justice Scalia Packing Heat:
Well, OK, it was some decades ago, and "packing heat" usually refers to handguns, not rifles, but here's the item:
"I grew up at a time when people were not afraid of people with firearms," said Scalia, noting that as a youth in New York City he was part of a rifle team at the military school he attended.
"I used to travel on the subway from Queens to Manhattan with a rifle," he said. "Could you imagine doing that today in New York City?"
I'd heard before about this very practice (riflery team members traveling the subways with rifles) before; there's nothing inherently shocking about this, especially to someone who has ridden on Israeli buses, but it's true that by today's standards it's pretty odd.
Bleg for D.C. Area House Rental Help:
Your friendly neighborhood Volokh Conspirator, lovely wife, and beautiful baby are planning a mid-May return to the D.C. area, and are looking for a house to rent. We have a little flexibility on a lease starting date (e.g., May 1 or June 1), and a lot of flexibility on a lease ending date. Furnished or unfurnished okay. We'd like at least three bedrooms and two baths. Close-in No. Va. would be ideal, but we'll consider D.C. and close-in Maryland, too. So, do you know (or are you) a D.C.-area professor leaving on sabbatical in May? A World Bank or IMF employee spending a year abroad? We could of course go through a broker, but we figure there are probably a lot of folks out there who want to rent out their house while they're away, but, unlike rental property investors, don't want to put it on the "rental market." Please send any leads to me at debernst at sign umich.edu. Thanks. Now back to our regularly scheduled programming.
Religious Liberty in the Courts: Are Traditionalist Christians Now the Disfavored Group?
The enduring legal myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for unconventional religious practices, expression, or values from the courts. According to the conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon our empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without support, at least in the modern era and in the lower federal courts. In fact, counter to popular belief, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, appear to be the ones that today enter the courthouse doors at a disadvantage.
At Eugene Volokh’s kind invitation, I will be guest blogging once daily this week, drawing upon our empirical study of religious liberty cases. In today’s posting, I provide a brief synopsis of this empirical study and of the findings relating to the religious background of claimants. Beginning tomorrow, I will address possible reasons for or ways of understanding these findings. On Friday, I’ll offer some concluding thoughts, some caveats, and as space permits respond to some of the comments received.
Together with Michael Heise (Cornell) and Andrew Morriss (Case Western), I have been engaged for several years in the empirical study of influences upon decisionmaking in the lower federal courts. Most recently, we have been exploring religious liberty decisions. Our focus has been upon published decisions (1986-1995) that involved constitutional rights, and parallel federal statutory civil rights (such as the Religious Freedom Restoration Act and the Equal Access Act), asserted by religiously affiliated organizations or individuals to challenge the formal actions of government.
With respect to free exercise of religion (and related) claims where the religious affiliation of claimants could be identified, our study included 969 judicial participations (that is, judge votes), from both the District Courts and the Courts of Appeals, in which claimants succeeded in obtaining a positive response from the judges in 37.9% of the observations. An exhaustive description of the study, data, variables, methodology, and findings may be found in Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004), available at this link in pdf format. The empirical success or failure by religious background of claimants is further developed in How Traditional and Minority Religions Fare in the Courts: Empirical Evidence from Religious Liberty Cases, 76 U. Colo. L. Rev. 1021 (2005) available at this link in pdf format.
Based upon our study, the vitality of religious variables to a more complete understanding of judicial decisionmaking in this area of law seems abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking in our study was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.
Let me cut to the chase and set out the pertinent findings for this week’s discussion:
First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah’s Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.
Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome—Catholic (at the 99% probability level) and Baptist (at the 95% probability level).
The question remains why those whose religious views are within the mainstream of American society would be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices. I’ll examine several possible answers to that question, beginning tomorrow.
How Traditional and Minority Religions Fare in the Courts:
I much enjoyed Prof. Greg Sisk's law review article on this subject, and I invited him to guest-blog about it this week. Greg teaches law at the University of St. Thomas School of Law in Minneapolis, and has written extensively on the law of government and religion, on the empirical study of federal court decisionmaking, and many other topics. Here's the article abstract, though Greg will be posting a good deal more on the subject in the days to come:
When the call of religious conscience and the demand of public expectations meet at the crossroad of the public square, the enduring myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for or even tolerance of unconventional religious practices, expression, or values from the courts. By contrast, so the conventional wisdom has it, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. Based upon a recent empirical study of religious liberty decisions in the federal courts, the proposition that minority religions experience a significantly lower success rate was found to be without empirical support, at least in the modern era and in the lower federal courts. Just as importantly, the myth that members of outsider faiths fail at a disproportionate rate proves to be only half of the story. In fact, counter to the popular narrative, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, proved to be the ones who enter the courthouse doors at a distinct disadvantage.
The thesis of this essay is as follows: when compared with other religious claimants, when examined within the particular venue of the federal courts, when evaluated in the context of other potentially influential variables, and when evaluated through data drawn from recent litigation controversies, the hypothesis that minority religious adherents are more likely to lose and that the Christian faithful are more likely to win religious liberty claims is of doubtful continuing validity. Accordingly, as the new century unfolds, the more interesting inquiry may be why those whose religious practices and values fit most comfortably within the mainstream Christian tradition find themselves with a higher hill to climb than people of unconventional beliefs when seeking judicial exemption from secular regulation or judicial recognition of expression and equality rights. Is our nation's concept of religious liberty sufficient robust to encompass those whose claims of conscience may directly challenge the cherished orthodoxies of modern secular liberalism?
Apropos of the infamous cartoons:
A light(er) note to CartoonGate: the Israeli publishers of Dimona Comix in Tel-Aviv have announced their own contest for anti-Semitic cartoons drawn by Jews. "We’ll show the world we can do the best, sharpest, most offensive Jew-hating cartoons ever published!" one of the two publishers, Amitai Sandy, was quoted as saying: "No Iranian will beat us on our home turf!"
"Christians United for Israel":
Ha'aretz:
A new group in the United States, Christians United for Israel, will serve as an umbrella organization for Christian congregations that support Israel, and will lobby for Israel.
Some 400 Christian community leaders met in San Antonio, Texas, two weeks ago to establish the group, which Christians United officials said represents about 30 million Americans.
The organization's main goal is to create a rapid-response network "targeted to reach every senator and congressman" in the United States. It is led by evangelical leaders Dr. John C. Hagee and George Morrison; fundamentalist Baptist minister Jerry Falwell; and Gary Bauer, president of the American Values organization aimed at protecting marriage, family and faith.
This could be a very influential organization if it takes off. I'm surprised this hasn't received more coverage from the MSM.
While Falwell and Bauer aren't my favorite people, if you're thinking, "they just want to help Israel because they think it will hasten the coming of Battle of Armaggedon,the Rapture, and the conversion/death of all the Jews," get over it, it just ain't so. I've corresponded with quite a few evangelical supporters of Israel, as well as former evangelicals familiar with th movement, and all agree that the percentage who support Israel for that reason is tiny (equivalent, perhaps, to the Jewish meshuggahs who want to imminently build the Third Temple on the Temple Mount in Jerusalem), though if you read liberal Jewish sources you would come away convinced that it's 99% of them.
Sunday, February 26, 2006
Proliferation of "Stand your ground" laws
Following the lead of a 2005 Florida law (which I blogged about last year), many states are considering "stand your ground" laws regarding self-defense. Although the details vary, the fundamental premise of all these laws is that a person attacked by a violent felon need not retreat before using justifiable force, even when the attack takes place in a public space. A new article from the Christian Science Monitor looks at the debate over the new laws, and includes a quote from me:
"These laws send a more general message to society that public spaces belong to the public - and the public will protect [public places] rather than trying to run into the bathroom of the nearest Starbucks and hope the police show up," says David Kopel, [research] director of the Independence Institute in Golden, Colo.
For historical perspective on the debate, see my article "The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-first," from the American Journal of Criminal Law, which discusses, inter alia, how the Supreme Court addressed the "no duty to retreat" issue in the late 19th and early 20th centuries.
The Proposed UN Human Rights Council: The Cure is worse than the Disease
That's the conclusion of Canadian human rights lawyer Anne Bayefsky, expressed on the outstanding website Eye on the UN. For continuing coverage of the the "United" Nations, the Eye on the UN website has no peer. It is an absolutely indispensible resource for a concerned global citizen who, although not personally involved in UN affairs, wants to understand what is going on at the United Nations.
"Israel Has No Right to Exist":
From Ha'aretz:
Today's quiz: Nearly 200 nations hold membership in the United Nations. How many have a right to exist?...
This is it.
One hundred and ninety-one nations, and only one lacks the "right to exist" in the eyes of fellow states.
No other country even has a "right to exist." No other country needs one.
Next up: What does a country have to do to lose its inherent right to exist?
A cautionary note. This is a trick question.
If you answered genocide, arguably the worst-case scenario, you'd be way wrong.
No one questions Turkey's right to exist. This after the deaths of more than a million Armenians beginning in 1915.
Nor did they expect Cambodia, which under the Khmer Rouge may have killed 2,000,000 people, to lose its membership in the community of nations.
Pakistan has no right-to-exist issue. This, after Bangladesh, 1971. The Rape of Nanking during Japan's wartime occupation of China? Japan gets to stay on the map.
Germany? Let's not even go there.
So why is it so hard for some people to recognize the right of Israel to exist?
A. The Jews have no need of - and therefore no right to - a state of their own because, as it is, they own everything, in particular the banks and the mass media, and because everything they don't own, they somehow control.
B. The occupation of Palestine is the greatest crime in the history of man's inhumanity to the innocent.
C. The very existence of Israel constitutes the signal humiliation of the Arab Muslim peoples in the modern era.
D. Only Muslims are allowed to conquer, occupy, claim, annex and govern territory, especially in areas where they have conquered, claimed, and annexed in the past.
E. No Muslim state is genuinely willing to help the Palestinians, so, in the end, Israel will have to do so.
The correct answer is, of course, "Yes."
...In the meantime, in small increments and, at times, for the wrong reasons - like being told we should be erased - we're heading gradually toward true membership in the community of nations. Like it or not.
It's only a matter of time before we're like all the others. We'll exist without any right to. Just like all the others.
This particularly struck a cord with me because when I write about Israel, I can generally count on getting an eccentric email from someone laying out various crimes, real or imagined, that Israel has committed, and claiming Israel has no right to exist, because these are "unique." If I'm in the mood, I write a polite email back pointing out that even accepting the author's dubious interpretation of the facts, the sins attributed to Israel are hardly unique, and that one could just as easily say that (Jordan, Saudia Arabia, Lebanon, Germany, the U.S., Russia, Ireland, the U.K., and more, depending on the "unique" sins alleged, have all come up) has no right to exist. Not once has such an author written back. Like religious fanatics, they believe in their own truth, and facts and reason aren't permitted to get in the way, and proselytizing their vision, not critical thinking, is their modus operandi. It's entirely possible there are fanatics on the pro-Israel side who are equally obnoxious and wrongheaded, but they are not polluting my inbox.
UPDATE: Reader DTHardy provides some anecdotal evidence of "unique" Israeli crimes:
On November 11, 2005, Israel stuck a gun in my belly, demanded my wallet, and thereafter used stolen credit cards in violation of Arizona Revised Statutes 13:504(B), 13:702(A)(1) and possibly the Hobbes Act.
As no other sovereign has done this to me (the Maldive Islands DID leave a flaming bag of dog crap on the porch and laughed when I tried to stomp it out, but that was at most trespass and disorderly conduct, and the Grand Master of the Knights of Malta mooned me as he drove by, but he is only a sovereign in the most technical of terms) Israel is obviously committing unique crimes. And I want my driver's license back.
George Mason Law School in National Review:
In the spirit of blatant institutional self-promotion, the March 23 issue of National Review has an article on George Mason Law School by John J. Miller, entitled "A Law School With A Twist: At George Mason University, the Left doesn't reign, believe it or not." It is in the print version of the magazine and I have not been able to locate it on-line. The article describes in some detail the Mason "Moneyball" philosophy, Henry Manne's entrepreneurship in building the law school, the law school's willingness to buck academic orthodoxies, and notes that we are only one of two law schools in the country with a Nobel Laureate in Economics on our faculty (Vernon Smith, who teaches every spring in the law school and is teaching "Spontaneous Order and the Law" this semester).
Becker & Posner:
weigh in on the Summers resignation. Posner here and Becker here. Posner's post is especially interesting.
Question for Our Readers Who Know Modern France:
How accurate is Mark Steyn's summary of the magnitude of anti-Semitism in France? Also, can it indeed be true that the Sebastian Selam murder went unreported in the major French media? Here's what Steyn writes:
In five years' time, how many Jews will be living in France? Two years ago, a 23-year-old Paris disc jockey called Sebastien Selam was heading off to work from his parents' apartment when he was jumped in the parking garage by his Muslim neighbor Adel. Selam's throat was slit twice, to the point of near-decapitation; his face was ripped off with a fork; and his eyes were gouged out. Adel climbed the stairs of the apartment house dripping blood and yelling, "I have killed my Jew. I will go to heaven."
Is that an gripping story? You'd think so. Particularly when, in the same city, on the same night, a Jewish woman was brutally murdered in the presence of her daughter by another Muslim. You've got the making of a mini-trend there, and the media love trends.
Yet no major French newspaper carried the story.
A quick NEXIS search indeed found no references to Sebastian Selam in the French media (though I might have chosen the wrong database, or perhaps the NEXIS coverage is too spotty to be really telling). It did find references in French newspapers to the James Byrd and Matthew Shepard hate crimes in the U.S. If indeed the Selam murder wasn't reported, is there some reasonable explanation for that?
UPDATE: Sorry -- misspelled Sebastien in the paragraph above, but not in my NEXIS search, in which I searched both for Sebastien Selam (the name Steyn gave) and Sebastien Sellam (an alternate spelling I've seen).
Open Thread:
What's on your mind? Comment away.
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