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Saturday, March 18, 2006
Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--
A few days ago, John Hinderaker had a long post criticizing Justice Ruth Bader Ginsburg's defense of the Supreme Court's use of foreign law. Paul Mirengoff adds to John's post the statement:
It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.
Paul then repeats his claim in a post of his own:
Last night, John criticized Justice Ginsburg for her speech in South Africa defending the use of foreign law and court decisions to interpretation of the American Constitution. I suggested that a good case can be made that Ginsburg should be impeached. That case will become even stronger to the extent that her willingness to use foreign law continues to inform her opinions.
I find the current debate over the Supreme Court's reference to foreign law somewhat strange, since the Supreme Court has cited foreign law for almost all of its history. In a new manuscript by my colleague Steve Calabresi and Stephanie Zimdahl, they document nearly all the uses of foreign law in the Court's history. It can be downloaded from SSRN at the end of their long abstract here.
Calabresi and Zimdahl take a somewhat more nuanced approach than does either Justice Ginsburg or her critics:
This Article [describes] . . . what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign sources of law. We will show that the Court's citation of foreign sources of law in recent years is not unprecedented as Justice Scalia implies, but that citation to foreign sources of law is increasing in the modern era in ways that may be very problematic. We show that there have been some dramatic, if not notorious, instances of the Court citing foreign sources of law historically, as happened for example in the Dred Scott case and in the anti-polygamy case, Reynolds v. United States. Moreover, we will show that the debate over citing foreign sources of law in American judicial decisions is not a new one at all. Indeed, the practice was debated as early as 1820 when Justice Livingston, in a sentiment echoed many years later by Justice Scalia, responded to Justice Joseph Story's citation of foreign sources of law in a Supreme Court case to provide a definition for the crime of piracy, by stating that it it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. Thus, Scalia's modern lament finds an echo as long ago as 1820 in the U.S. reports. . . .
This article thus examines the many instances between 1789 and 2005 in which the Court has cited foreign sources of law and points out that several themes become apparent. First, on some occasions, the Court cites such sources as evidence of the reasonableness of its decisions: foreign practice is reviewed as to whether an American practice is reasonable or unusual. Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved. . . .
Our analysis of the Court's practice leads us to several conclusions.
First, we believe those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history.
Second, the Court has, however, cited foreign sources of law with much more frequency in far more important constitutional cases in recent years, as Justice Scalia has suggested, and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be wary of the Court's new trend in this direction.
Third, as Professor Calabresi has argued elsewhere, citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States. In these cases, we agree with Justice Scalia that the Court's task is to interpret the original meaning of our Constitution and not to determine the current day reasonableness or unusualness of a legislative practice. We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment, it will not be appropriate for the Supreme Court to cite foreign sources of law. Citation of such law is, in fact, a sign that the Court is falling into policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this in turn suggests the justices are behaving illegitimately.
While John and Paul make several good points in their critiques of Justice Ginsburg's speech on foreign law, the case for Justice Ginsburg's impeachment is neither outlined by Paul, nor do I see any serious basis for it.
I don't know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg's to form a plausible basis for impeachment. By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move.
Grim Milestone Reached: US Deaths in Iraq Surpass Worst Month in Vietnam.--
As the War in Iraq approaches its third anniversary on March 20, 2006, U.S. military deaths in Iraq have just passed another grim milestone. The worst month of U.S. military deaths in Vietnam was May 1968: 2,316 lives. The second worst month in Vietnam was February 1968: 2,293 lives.
According to the website ICasualties.org, which tracks U.S. military deaths in Iraq, the total U.S. military deaths in Iraq since March 20, 2003 is 2,317 lives, one more than the worst month in Vietnam. In this count of 2,317 deaths, ICasualties.org includes 5 reported U.S. deaths pending Department of Defense confirmation.
Cathy Seipp on Walkout:
Seipp follows up on aspects of Walkout that the movie -- which is about a 1968 walkout by Hispanic students protesting L.A. education policies -- somehow leaves out, especially the legacy of "bilingual education" that seems to have on balance been a disaster for Hispanic students. Here's an excerpt, though the whole piece is much worth reading:
As it happens, this year marks the 10th anniversary of the state’s anti-bilingual backlash, which began when Skid Row activist and Episcopal priest Alice Callaghan organized about 100 Spanish-speaking parents who wanted their Ninth Street Elementary children to learn English in class.
In the film, spunky 17-year-old heroine Paula Crisostomo, now an administrator at Occidental College, has a friend and fellow protester named Vickie, who (at the end we learn) grew up to be Victoria Castro, L.A. school board member from 1993 to 1997 and board president in 1998. The film doesn’t mention that after Castro refused to help those frustrated Ninth Street parents, they staged a walkout of their own, an incident that inspired Ron Unz to back Prop. 227 two years later....
George Mason Advances!
Props to George Mason for a dominating victory over Michigan State last night. And it was great for Jim Larranaga to prevail despite suspending Tony Skinn. In the world of modern college sports it is great to see a guy do the right thing and still win.
The hardest part was being away from my Mega March Madness for the first two days of the tourney. I was on vacation visiting family for Spring Break and--horrors!--I had to watch whatever CBS put in front of me. How do people still live like that?
Consider this an open thread to talk about the first two days of March Madness if you like.
Follow-Up To Beauty Study:
Last fall I posted a link to a study on "beauty" and other attributes. The researchers have a follow-up study if you are interested in participating:
Would you like to participate in a scientific study undertaken by Niclas Berggren (The Ratio Institute), Henrik Jordahl (Uppsala University) and Panu Poutvaara (University of Helsinki)? They are studying whether beauty and some related traits play a role in politics. This is a follow-up study of a previous study from last fall. You can participate in this one irrespective of whether you participated in the earlier study.
They would appreciate it greatly if you would assess some photos of politicians at the following link:
http://www.beautystudy.se/
Please write VOLOKH when asked about where you heard about the study.
There is a chance to win €100 for participants. You can also choose to receive an executive summary of the results (in June). The identity of respondents is kept confidential.
Friday, March 17, 2006
"A Certain Four-Letter Verb
for 'copulate,' of possible Scandinavian origin (see
Webster’s New Collegiate Dictionary (1977) p. 463, col. 2) appears frequently in the
record along with its gerundive and a related noun involving the maternal parent," says footnote 1 of this California Court of Appeal opinion.
Thanks to How Appealing for the pointer.
Justice Ginsburg on Foreign Law and the U.S. Constitution:
I haven't followed the debate over the use of foreign precedents, international treaties, etc., to interpret U.S. law as closely as I should. Thus, I was, but perhaps shouldn't have been, surprised and rather horrified to read this speech by Justice Ruth Bader Ginsburg. For example, she writes:
Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'"....
Among examples from that [October 2002] Term, I would include the Michigan University affirmative action cases decided June 23, 2003. Although the Court splintered, it upheld the Michigan Law School program. In separate opinions, I looked to two United Nations Conventions: the 1965 Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The U.S. Supreme Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."
Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"? I don't know whether to laugh or to cry.
Thanks to reader John J. Vecchione for the tip; his thoughts on the speech can be viewed here (3/16, no permalink available).
Swell New Podcasts:
The Independence Institute has started a new podcast series, iVoices. You can listen on-line, or download mp3 files. We plan to publish many, many podcasts, but so far, we have three available: I discuss the Internet and New Media, and offer some cautions about triumphalist claims about the alleged demise of the traditional media. Our Campus Accountability Project Director Jessica Corry reports her experience on the University of Colorado's Blue Ribbon Diversity Panel, where diversity of thought was forbidden. And Senior Fellow Dennis Polhill discusses petition rights.
Danish Prosecutor Rules the Mohammed Cartoons Don't Violate Danish Law:
Danish law does prohibit certain kinds of criticism of religion and religious groups, but the prosecutor concludes that these cartoons didn't qualify. I'm on the road right now (up at Stanford for a conference on the jurisprudential legacies of Chief Justice Rehnquist and Justice O'Connor), so while I've read the ruling I don't have the time to blog more about it. But for now, the ruling suggests to me that (1) Danish prosecutors are willing to read Danish speech restrictions fairly narrowly, which is to their credit, but (2) despite this, Danish law does on its face bar a good deal of speech that's critical of religion, and in many cases it will be quite hard for publishers or speakers to tell up front how this law will be applied.
Thanks to Peter Herngaard for the pointer.
Same-Sex Marriage and Polygamous Marriage:
Ann Althouse responds to Charles Krauthammer's slippery slope argument:
If Krauthammer has been writing about this subject for 10 years, it boggles the mind that the obvious distinction has not yet dawned on him.
Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness. . . .
[I]t's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.
I generally much like Prof. Althouse's work, but here I'm unpersuaded. She gives a good argument for not giving polygamous families more benefits than two-member families have. But it's easy to exepct what polygamous families would say in response:
We're not asking for benefits that would extend to all the spouses in the family. All we're asking for is what two-member families get. We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone. We want other no-cost or very low-cost benefits. And for the costly benefits, such as insurance and pensions, we'll be happy if the law just covers two members of our marriage; we'll take care of the other members on our own.
We don't want coverage for three, four, or five members. We just want coverage for two, just like the rest of you get. But it's unfair if you entirely reject our marriage, and give us coverage only for one.
I've argued in my Same-Sex Marriage and Slippery Slopes that polygamous marriages are indeed unlikely to be recognized in the U.S., even if same-sex marriages are recognized. If the same-sex-marriage-recognition movement wins, and especially if it wins by stressing certain kinds of arguments, those arguments may indeed be logically usable by polygamy-recognition forces. But, as I argued, "It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster. I doubt that there’ll be such a movement for polygamist rights, even with the potential slippery slope effects I describe."
Nonetheless, though I'm not terribly impressed by the slippery-slope-towards-recognizing-polygamy arguments, I don't think they can be dismissed as easily as Prof. Althouse suggests. It's not enough to come up with a plausible distinction between what one supports and the extreme version of what others support. One also has to deal with the more modest versions that the others will come up with in response to your distinction.
UPDATE: My disagreement with Prof. Althouse may be less than I thought; in an update to her post, she writes: I'm not saying that the distinction is so obvious that everyone will accept it. I'm just refuting Krauthammer, who thinks there is no way to stop the slip down the slope from gay marriage to polygamy. I'm against the scare tactic that is being widely used: don't accept gay marriage or nothing will stave off polygamy. All I'm saying is that there is a principled basis for drawing a line between the two. Nothing compels us to choose that line, however. I freely admit that. On that, I agree; as I've stressed in all my writing on slippery slopes, it is very rarely the case that the first step will absolutely positively guarantee to lead to the future step (as in "nothing will stave off"). People who overstate the slippery slope argument by making it sound like the bottom of the slope is inevitable end up weakening their own position.
Nonetheless, it still seems to me that a distinction between recognizing same-sex marriage and recognizing polygamous marriage should -- to be practically useful and not just theoretically plausible -- do more than just explain why the most extreme version of recognizing polygamous marriage (recognize my marriage and put all eight of my wives on my insurance plan) is distinguishable from recognition of same-sex marriage. It should also explain why the likely alternatives that you'll be given in response (recognize my marriage and put one of my wives on my insurance plan) is distinguishable.
David Boaz's Blog:
My friend David Boaz of the Cato Institute has a new blog at the Guardian, and it's off to a great start. David's first post attempts to explain why conservatives love Bush so much, even though his economic policies are anything but conservative: As a nominating speech for President Grover Cleveland once put it, "They love him most for the enemies he has made." Conservatives love Bush because the left hates him. If the New York Times would run a front-page story headlined "Bush Delivers the Big Government Clinton Never Did," and the lefty bloggers would pick it up and run with it, maybe conservatives would catch on.
So here's your challenge, lefty bloggers: If you don't like the tree-chopping, Falwell-loving, cowboy president--if you want his presidency fatally wounded for the next three years--then start praising him. One good Paul Krugman column taking off from that USA Today story on the surge in entitlements recipients under Bush, one Daily Kos lead on how Clinton flopped on national health care but Bush twisted every arm in the GOP to get a multi-trillion-dollar prescription drug benefit for the elderly, one cover story in the Nation on how Bush has acknowledged federal responsibility for everything from floods in New Orleans to troubled teenagers, and maybe, just maybe, National Review and the Powerline blog and Fox News would come to their senses. Bush is a Rockefeller Republican in cowboy boots, and it's time conservatives stopped looking at the boots instead of the policies.
I made a similar point a couple of years ago in a post called "George Bush, Liberal Darling," which provoked a storm of reaction from the left blogosphere.
UPDATE: Kieran Healy is entitled to his opinion, but his implication that David Boaz and I were once Bush supporters who have now turned on him for "the sake of their own conscience," is simply wrong. I've never been a fan of the president's, though of course I don't disagree with him on everything. I criticized him rather severely in 2004, and managed to find a far better candidate to vote for, and I didn't vote for Bush in 2000, either. And, though I don't want to speak for Boaz, I suspect that he has been even less of a fan than I have.
FURTHER UPDATE: The basic point of Boaz's post, it seems to me, is not that Bush is a liberal, or that liberals always support government spending. Rather, it's given that the Left will seemingly attack Bush for whatever he does, regardless of whether it promotes a conservative or a liberal agenda [see, e.g., the persistent attacks on the prescription drug benefit plan, the largest entitlement program since the Great Society, as a "giveaway to the pharmaceutical industry" because it doesn't fix drug prices. Food stamps don't control food prices, a giveaway to Big Ag? Student loans and grants don't control tuition prices, a giveaway to Big Education? Medicare originally did not control doctors' fees, a giveaway to doctors and hospitals? Section 8 vouchers don't control rent prices, a giveaway to landlords? Since when does the government's failure to include price controls with subsidies lead to so much indignation on the left?]. Under those circumstances, conservatives believe either (a) Bush is not being attacked for his policies, but for being a Republican, and thus good Republicans should defend him; and/or (b) If the Left were in power, they would outspend and outwaste and outnationalize Bush on entitlements, education, health care, etc., so better to support Bush than undermine him and let the Left take over.
We saw a similar phenomenon on the right with Clinton, with conservatives irrationally attacking him even when he pursued conservative policies, and the left, as a whole, swallowing their doubts and defending him. It wasn't so irrational, I suppose, if the object was to regain power, but it was if the object was to promote conservative economic policies. The right (barely) succeeded in winning the 2000 election, but also destroyed the national political commitment to fiscal restraint that had survived from Reagan to Clinton.
London Review of Books Article on the Israel Lobby:
The London Review of Books has a lengthy article by Professors John Mearsheimer of University of Chicago and Stephen Walt of Harvard, arguing that given that Israel is such a malevolent country that acts in so many ways contrary to U.S. interets, support for Israel in the U.S. must be primarily, perhaps solely, a result of the power of the pro-Israel political lobby.
The article is so full of misrepresentations and distortions that it would take me an entire day to properly Fisk it. Fortunately, the authors discredit themselves in the very first paragraph.
For the past several decades, and especially since the Six-Day War in 1967, the centrepiece of US Middle Eastern policy has been its relationship with Israel. The combination of unwavering support for Israel and the related effort to spread ‘democracy’ throughout the region has inflamed Arab and Islamic opinion and jeopardised not only US security but that of much of the rest of the world.
This is sheer nonsense [clarification: the nonsense is the purported relationship between U.S. support for Israel and U.S. support for democratization of the Middle East. As I explain below, given that Israel is opposed to the latter policy, it's hard to see how it's a "related" effort]. The Israeli government has never supported an agenda of democratizing the Middle East. Jimmy Carter wanted to democratize Iran, and his administration encouraged the Shah to abdicate. Israel had a fine relationship with the Shah, would have been happy to see him retain power, and was very unhappy with how the U.S. undermined him, leading to the rise of Khomeinism is Iran. Today, Israel wanted to postpone or cancel the Palestinian elections, but relented under pressure from the U.S. Israel has, perhaps foolishly, put its faith in dictators willing to sign peace treaties or otherwise cooperate with Israel, including Egypt's Mubarak, and the monarchies in Morocco and Jordan. The last thing Israel wants right now is for any of these countries to become democracies, as public opinion is extremely hostile to Israel in each country. Israel previously put its faith in Yasser Arafat post-Oslo, precisely because it thought he could impose calm on his subjects. The only major public figure in Israel who has been a proponent of spreading democracy in the Middle East is Natan Sharansky, and he is considered a crank by most Israelis, and even he has been skeptical of U.S. democraticization policy with regard to the Palestinians.
I can't really make out what the authors' argument is in attributing either the invasion of Iraq (even though they acknowledge that top Israeli officials thought Iran was more of a threat to Israel) or the policy of spreading democracy to the Middle East to the pro-Israel lobby, but it seems to be something along the lines of the following: Neoconservatives wanted to invade Iraq and spread democracy to the Middle East; Israel thought it would benefit from the invasion of Iraq and the toppling of Saddam Hussein (no mention of the fact that Israel does not think it would benefit from democratization); and neoconservatives tend to be strong supporters of Israel.
As I've noted before, neoconservatives were also strong supporters of U.S. military involvement in the Balkans. Does that mean that pro-Israel lobby was behind Clinton's actions in Bosnia?
One expects a lot better from Harvard and Chicago professors than this.
UPDATE: Rosner's blog asks, regarding the study in question:
Do you ignore it - having concluded it is biased, one-sided, foolish, repetitive, and most of all, has nothing new to offer - or do you write about it, knowing that the "Harvard," "Chicago," "professors," "Kennedy school" labels will make it acceptable anyway, even news-worthy, in the eyes of many. In short: Does one need cooperate with the advancement of the cause of academic garbage?
And Rosner, like me, doesn't have the time and energy for a full-scale Fisking: "But let us not start arguing about every little detail in this paper. It will take a long time, and it will be a waste of time, as it is clear that the writers are not here to be convinced that they're wrong."
And from Martin Kramer: "This newest article, obviously the work of Walt more than Mearsheimer, cobbles together a lot of half-truths and untruths that have been out there on the far fringe, and gives them 'academic respectability.'"
Drezner has a reasonably thorough critique, including,"Shot through these papers are an awful lot of casual assertions that don't hold up to close scrutiny."
And here's a New York Sun editorial criticizing the study.
People In Common:
What do these people have in common (besides their names starting with the letter 'J')?
Nice headline in . . .
today's International Herald Tribune: "French in streets, but it's not '68; Protesters seek to 'keep what we have'." That sums it up pretty nicely -- the student protesters (who I'm sure consider themselves great radicals) are, this time, protesting for the status quo, in the face of the government's efforts to change French labor law so as to allow employers to fire young workers without cause after two years. [The inability of employers to fire workers is, in much of the E.U., a primary cause of perpetually stagnant job growth statistics -- though it looks like the French government is losing its battle of trying to persuade people about that].
Incidentally -- I'm reading the IHT because I'm spending this semester over in Bologna, Italy, a truly magnificent city and a fascinating place to spend some time. I'll have postings here on the VC from time to time -- but in collaboration with a friend and colleague, David Castronuovo, who teaches in the Italian Department at Skidmore College, I'm keeping a running record of my adventures in Italy over at a blog we've set up here. I don't know if VC readers will find it to be of interest, but feel free to check it out if you do.
Thursday, March 16, 2006
Housing Warning from Federal Reserve Board Governor:
Via The Housing Bubble Blog:
"The Federal Reserve has no intention of preserving all of the recent gains in home price values, said Federal Reserve board governor Donald Kohn on Thursday. If real estate prices begin to erode, homeowners should not expect to see all the gains of recent years preserved by monetary policy actions,' Kohn said in a speech."
"In his remarks, Kohn attacked the popular 'Greenspan put' theory that Fed policy would always protect investors from sharp asset market drops while doing nothing to restrain these markets when prices rise. 'This argument strikes me as a misreading of history,' Kohn said. 'Conventional policy as practiced by the Federal Reserve has not insulated investors from downside risk,' he said."
"'Whatever might have once been thought about the existence of a 'Greenspan put,' stock market, investors could not have endured the experience of the last five years in the United States and concluded that they were hedged on the downside by asymmetric monetary policy,’ Kohn said."
“‘The same consideration apply to homeowners: All else being equal, interest rates are higher now than they would be were real estate valuations less lofty; and if real estate prices begin to erode. Homeowners should not expect to see all the gains of recent years preserved by monetary policy actions,’ Kohn said.”
Am I misinterpreting, or does the bolded quotation mean that the Fed has raised short-term interest rates higher than it would have otherwise in order to prick the housing bubble? [Which means, assumedly, that the Fed won't STOP raising rates until housing prices decline?]
The Obligation to Defend Unpopular Clients.--
Gail Heriot at the RightCoast posts on the appearance that Ropes and Gray may have ceased to represent an unpopular client because of opposition from Harvard law students. The unpopular client was Catholic Charities of Boston:
If yesterday's Boston Globe story is to be believed, the estimable Ropes & Gray attorneys may have been intimidated into abandoning an existing client by a group of (gasp!) unhappy Harvard law students who threatened not to like them anymore.
Up until two weeks ago, Ropes & Gray represented Catholic Charities of Boston, which in addition to its other charitable work, provided adoption services. In particular, it excelled in "hard to adopt cases" in which the child involved was older than the average adopted child, handicapped, or bore the scars of abuse or addiction. Catholic Charities came under fire, because its policy was not to place children with gay couples, and Massachusetts law now prohibits adoption agencies from discriminating on the basis of sexual orientation. Catholic Charities felt it could not abandon Catholic teachings in this area and apparently sought a religious dispensation from the law.
This did not sit well with Harvard's gay and lesbian students, according to the Boston Globe. . . .
Of course, Ropes & Gray does not admit that it was intimidated by a bunch of law students. (Startlingly, however, it does not deny it.) But the ONLY acceptable response to a bunch snot-nosed brats telling it whom to represent is to tell them to take a hike. If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received. And that would be true whether the students were angry because Catholic Charities opposes gay adoptions, angry because it supports them or just plain angry. Even appearing to cave to such tactics is inappropriate. And an attorney who fails to understand this isn't fit to appear before a court of law.
If law students begin lobbying to prevent lawyers from representing unethical or unpopular clients (and I don't pretend to know precisely what happened with Ropes & Gray), I would think that reformist students would start with their own law school criminal clinics, where in most clinics a large number of their clients have done very bad things to innocent people. Or maybe idealistic students can switch their law school criminal clinics to working on the prosecution side to avoid representing the most unpopular clients (though, of course, not all prosecutors are always ethical).
If this "reform" does not strike people as an attractive switch, then perhaps they might take seriously Professor Heriot's admonition to continue to represent unpopular clients.
Women and Men, Abortion and Excuse from Child Support Obligations:
Cathy Young has some interesting thoughts on the subject.
Antidiscrimination Rules Imposed on University Groups:
My sense is that many campus antidiscrimination rules (1) were originally aimed at discrimination by social organizations such as fraternities, sororities, and eating clubs, and that (2) their drafters didn’t think much about how the rules might burden ideological groups’ ability to disseminate their ideologies (for instance, if a "no religious discrimination by student groups" rule interferes with a religious group's ability to maintain its identity as a religious group). But I haven't been able to find much support for this assumption, which makes me wonder whether it's accurate.
Does anyone have any pointers to places that might either support or contradict my assumption? The more detail, of course, the better. If you'd be so kind, please limit comments to information about this factual issue, and not a discussion about whether such rules are a good idea. Thanks!
Armed Resistance to the Holocaust:
That's the title of my forthcoming article in the May 2006 issue of NATIV, the journal of the Ariel Center for Policy Research. (The Ariel Center is a think tank in Jerusalem; its main audience is Israeli policy intellectuals and policymakers.) The final article will be published in Hebrew and English. In the meantime, you can read an English draft in PDF or HTML. Comments and suggestions for improvement are welcome.
Summary: Contrary to myth of Jewish passivity, many Jews did fight back during the Holocaust. They shut down the extermination camp at Sobibor, rose up in the Warsaw Ghetto, and fought in the woods and swamps all over Eastern Europe. Indeed, Jews resisted at a higher rate than did any other population under Nazi rule. The experience of the Holocaust shows why Jews, and all people of good will, should support the right of potential genocide victims to possess defensive arms, and refutes the notion that violence is necessarily immoral.
Odd Automated Phone Call for IL Governor Blagojevich mispronounces his name.--
In Illinois, next Tuesday is primary election day. As someone who usually votes in the Democratic primary, I have been getting automated political phone calls from Democratic candidates.
I just got an odd call from Planned Parenthood on behalf of Governor Rod Blagojevich (bla-GOY-a-vich).
What was odd was not the boilerplate about a "woman's right to choose" or the Bush administration, but the fact that the recorded spokeswoman for Blagojevich referred to him at least four times incorrectly as "bla-GOYD-a-vich." The message ended with a reference to things "here in Illinois." I tried *69 to find the origin of the call, but the supposed originating number was "000-000-0000."
Of one thing I'm reasonably certain: the spokeswoman was not from "here in Illinois."
Tufts Panel on the Mohammed Cartoons:
This story describes the panel, which was sponsored by three departments or centers in the school (the International Relations department, the Peace and Justice Studies department, and the Fares Center for Eastern Mediterranean Studies) as well as three other groups. Oddly, as best I can tell, all five panelists seemed to be largely critical of the publication of the cartoons.
Do any of our readers know more about the panel? Was it more balanced than the story suggests? (Surely it wouldn't be the first time that a college newspaper, or any newspaper, failed to properly capture the spirit of an event.)
Seems to me that when an academic institution (as opposed to an advocacy group) participates in putting together a panel on a contested subject such as this one, it makes sense to include the cartoons' defenders as well as their critics. I wouldn't by any means impose such balance as a legal or even administrative requirement, and one can imagine situations where the balance is unnecessary: A panel on paleontology need not, for instance, have a Young Earther on it. But the cartoons controversy seems to be the sort of topic on which real debate would be helpful, and on which universities should try to provide real debate.
Daily Illini Fires Editor Who Published the Mohammed Cartoons:
Details here; my earlier post on the subject here.
More Chutzpah:
Orin reports:
The Lodi (CA) News-Sentinel has an interesting story about a city dump truck driver who accidentally crashed a city dump truck into his own private truck, jointly owned by himself and his wife. He then asked the city to pay for the damages, on the ground that a city employee had damaged the truck.
Sirhan Sirhan denied parole.--
Sirhan Sirhan, the Palestinian extremist who murdered Robert Kennedy, was again denied parole in California:
A CALIFORNIA parole board has refused to release Sirhan Sirhan, who killed US presidential candidate Robert F Kennedy in 1968, saying the assassin remained a danger to society.
Sirhan opted not to attend today's parole board hearing and did not send anyone to represent him, Tip Kindel of the California Department of Corrections and Rehabilitation said.
"Essentially, the board found he continues to be a danger to public safety and is not suitable to parole," Mr Kindel said.
"He was given two opportunities by the panel to show up, and declined."
The board concluded Sirhan killed Kennedy in a "cold, calculated and callous manner" with disregard for the senator and those with him, Mr Kindel said.
Psychiatric exam results presented to the board indicated Sirhan "hates Americans and, if released, wants to be involved in Middle East politics". [Tip to Tim Blair]
One of my favorite examples of Chutzpah was Sirhan's statement to the parole board in 1982:
"If Robert Kennedy were alive today, he would not countenance singling me out for this kind of treatment."
I suppose that it is just Sirhan's bad luck that somebody killed Robert Kennedy.
This is a real-world example of the classic plea for mercy: "A boy is on trial for murdering his parents, and he begs of the judge leniency because he is an orphan."
Is African American Enrollment in Law School Down?:
One frequently hears that the enrollment of African American students in law school has "declined," calling for desperate measures such as the ABA's new "diversity" standard. [See, e.g., a statement from Marian M. Yim, Chairperson, Education Subcommittee, ABA Council on Racial and Ethnic Justice, stating that there is a "growing crising [sic] in declining enrollment of African-American and Latino students in law school."] Putting aside the relevant legal and policies issues, is it true that African American enrollment has declined? Yes, but. Data on the ABA's website (if someone can tell me how to reproduce the chart in this post, I will) shows that enrollment of African-American students leaped from 5,894 in 1986 to 9,681 in 1994, a better than 60% increase in just eight years. Enrollment then declined slightly, reaching a low of 9,271 in 1998, and then began to rise slowly again. In 2004, the last year for which data is available, the total reached 9,488.
In short, African-American enrollment has indeed "declined" if you use 1994 as the baseline. On the other hand, if you use 1986 as a baseline, African-American enrollment has risen by over 60%, but the increase essentially came in one large boom between 1986 and 1994. If that increase had happened gradually between 1986 and 2004, the trend line would show a steady increase in African-American students. So it's correct to state that enrollment of African-American students has declined since 1994, but it's a bit misleading if you don't acknowledge that the 1994 statistics reflected a seemingly anomalous large increase (why the sudden increase at that time? I don't have a clue) over a very short period of time.
|
Academic Year |
No. of Schools Reporting |
1st Year |
2nd Year |
3rd Year |
4th Year |
TOTAL |
| 2004-2005 |
185/188 |
3,457 |
2,873 |
2,845 |
313 |
9,488 |
| 2003-2004 |
184/187 |
3,300 |
3,008 |
2,787 |
342 |
9,437 |
| 2001-2002 |
181/184 |
3,474 |
2,867 |
2,737 |
334 |
9,412 |
| 2000-2001 |
180/183 |
3,402 |
2,890 |
2,757 |
305 |
9,354 |
|
1999-2000
|
179/182
|
3,353
|
2,903
|
2,700
|
316
|
9,272
|
| 1998-99 |
178/181
|
3,478
|
2,728
|
2,754
|
311
|
9,271
|
|
1997-98
|
175/178
|
3,126
|
2,752
|
2,887
|
367
|
9,132
|
|
1996-97
|
176/179
|
3,223
|
3,013
|
2,991
|
315
|
9,542
|
|
1995-96
|
175/178
|
3,474
|
3,161
|
2,855
|
289
|
9,542
|
|
1994-95
|
174/177
|
3,600
|
3,000
|
2,771
|
310
|
9,681
|
|
1993-94
|
173/176
|
3,455
|
2,846
|
2,573
|
282
|
9,156
|
|
1992-93
|
173/176
|
3,303
|
2,603
|
2,465
|
267
|
8,638
|
|
1991-92
|
173/176
|
3,169
|
2,556
|
2,196
|
228
|
8,149
|
|
1990-91
|
172/175
|
2,982
|
2,222
|
2,023
|
205
|
7,432
|
|
1989-90
|
172/175
|
2,628
|
2,128
|
1,816
|
219
|
6,791
|
|
1988-89
|
171/174
|
2,463
|
1,913
|
1,728
|
217
|
6,321
|
|
1987-88
|
171/175
|
2,339
|
1,761
|
1,690
|
238
|
6,028
|
|
1986-87
|
171/175
|
2,159
|
1,800
|
1,735
|
200
|
5,894
|
|
1985-86
|
172/175
|
1,800
|
1,838
|
1,791
|
240
|
6,052
|
|
1984-85
|
171/174
|
1,735
|
1,878
|
1,686
|
177
|
5,955
|
|
1983-84
|
170/173
|
1,735
|
1,813
|
1,711
|
196
|
5,967
|
|
1982-83
|
169/172
|
2,217
|
1,827
|
1,623
|
185
|
5,852
|
|
1981-82
|
169/172
|
2,238
|
1,793
|
1,596
|
162
|
5,789
|
|
1980-81
|
168/171
|
2,144
|
1,684
|
1,531
|
146
|
5,506
|
|
1979-80
|
166/169
|
2,002
|
1,647
|
1,438
|
170
|
5,257
|
|
1978-79
|
164/167
|
2,021
|
1,565
|
1,572
|
192
|
5,350
|
|
1977-78
|
160/163
|
1,945
|
1,648
|
1,508
|
203
|
5,304
|
|
1976-77
|
160/163
|
2,128
|
1,654
|
1,488
|
233
|
5,303
|
|
1975-76
|
160/163
|
2,045
|
1,511
|
1,452
|
119
|
5,127
|
|
1974-75
|
154/157
|
1,934
|
1,587
|
1,329
|
145
|
4,995
|
|
1973-74
|
147/151
|
2,066
|
1,443
|
1,207
|
101
|
4,817
|
|
1972-73
|
144/149
|
1,919
|
Wednesday, March 15, 2006
Irish Jews can now wear chainmail and leather armor:
Thanks to an astute reader on a previous post, who pointed out that Ireland has repealed its law, enacted in 1181, which forbade Jews from possessing armor.
The Irish law was almost certainly based on the Assize of Arms, which was promulgated by England's King Henry II in 1181. At the time, England claimed sovereignty over Ireland, so presumably the Assize remained part of Irish laws, even after Irish independence was recognized in 1921.
Other sections of the Assize of Arms required freemen to possess weapons and armor, with the particular implements depending on the subject's socioeconomic rank. The Assize was one of many examples of the English policy of relying on a widely-armed populace for national defense.
The Jewish section of the Assize stated:
7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk (an armored shirt made of mail or leather), but he shall sell it or give it away or alienate it in some other way, so that it shall remain in the king's service.
Read narrowly, the Assize still allowed Jews to possess plate armor for their chests (although such armor, invented during the Roman Empire, had temporarily fallen out of use when the Assize was written), and to possess any form of armor for their arms, legs, and head, as well as to possess shields and any type of weapon.
For a burgess (citizen of a borough; similar to bourgeois), the Assize also specified the maximum amount of arms and armor which could be possessed.
Shari'a law forbids dhimmis (Jews, Christians, and sometimes Hindus) from exercising a wide variety of civil rights, including repairing the outside of religious buildings, possessing arms, and engaging in self-defense against Muslim attackers. (See Bat Yeor's fine books for details.) Restrictions on Jewish possession of arms were common in many European Christian countries as well, and of course were also a |