|
|
Saturday, June 10, 2006
Wind Farms become Collateral Damage:
Opponents of a proposed wind farm off the coast of Massachsetts inserted a provision into the 2006 Defense Authorization Act barring federal permits for new wind projects pending completion of a study on whether wind turbines may interfere with military radar. As a result, some one-dozen wind power projects arond the country are on hold, according to the Washington Post.
More than 130 wind turbines are proposed for the hilltops of central Wisconsin, but that project and at least 11 others have been halted by the Defense Department as it studies whether the projects could interfere with military radar.
Wind farm developers, Midwestern legislators and environmentalists say the farms pose no risk, noting that there are already numerous wind farms operating in military radar areas. They say a renewable, domestic source of energy such as wind is crucial to energy security and independence. . . .
Defense and FAA officials said the "proposed hazard" letters are not prohibiting the wind farms, just delaying them until any risks to military operations can be assessed and resolved.
"We're not saying, 'No, you can't do this,' " Spitaliere said. "We're looking to work with the proposals to mitigate the hazard."
UPDATE: There's some more detail at Prometheus.
I'm headed to Italy
for three weeks to teach comparative constitutional law in USD's summer program in Florence. (Look, somebody has to do it.) It's unlikely I'll post much, if at all, during that time. So if gay marriage breaks out on us somewhere in the next three weeks you'll have to deal with the decline of American civilization on your own.
Friday, June 9, 2006
Dean Graber:
He has plans for the University of Maryland School of Law. With your help, he hopes to "completely makeover the law school in [his] 75 minutes of power."
Congratulations to Orin:
I'm delighted to say that my friend and coblogger Orin Kerr is becoming a coauthor of the top criminal procedure casebook, which will now be Kamisar, LaFave, Israel, King & Kerr. (The book comes in three flavors, Modern Criminal Procedure, Basic Criminal Procedure, and Advanced Criminal Procedure.) He's also becoming a coauthor of the leading criminal procedure treatise and hornbook, now LaFave, Israel, King & Kerr six-volume treatise on Criminal Procedure, together with the one-volume hornbook by the same authors. Well done!
The amendment is dead, long live the amendment:
The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.
The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court “victory” for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.
We’ll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It’s the living dead.
All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like “the states should be allowed to do this godawful thing if they want to.” Forgive me for not finding much inspiration in that.
Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered “no,” we’re going to be stuck with these state amendments, adopted in a time when we didn’t know any better. More precisely, “we” won’t be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.
With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it’s a good idea. It’s not exactly the same as having a federal amendment, but it’s the next worst thing.
Climate Change & the Common Law:
Earlier this week, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Connecticut v. American Electric Power. In this case, several state attorneys general are suing a handful of utilities alleging that the utilities' emissions of greenhouse gases contribute to the "public nuisance" of global warming. This is an innovative use of a traditional, common law cause of action. Nonetheless, I am quite skeptical, as I explained in this 2004 column and this interview. The lower court was also quite skeptical of the suit, dismissing it as nonjusticiable (see story here).
From the accounts I've heard and read, the Second Circuit panel was somewhat skeptical of the state AGs claims. Here the Cato Institute's Jerry Taylor provides a report, along with some libertarian commentary. Taylor thinks the suit is a somewhat welcome development insofar as it represents a greater willingness among environmental advocates to rely upon property rights and common law causes of action (instead of centralized regulations) to address environmental harms. As Taylor also notes here, I've explored the question of how to apply property rights principles to climate change, and my conslusions are not those typically advanced by free market advocacy groups (see here, here, and here).
Is Anti-Mutant Bias Invidious Discrimination?
Law student blogger Ivan Ludmer considers equal protection for mutants. Whatever the proper legal answer, I am sure equal protection alone would not have satisfied Eric Magnus Lehnsherr. (LvPB) Related Posts (on one page): - X-Men Aren't Human:
- Is Anti-Mutant Bias Invidious Discrimination?
Dixie Chicks Tour Problems:
While sales of the Dixie Chicks new album remain strong, ticket sales for their concert tour have been quite disappointing, Bilboard reports.
Initial ticket sales for the Dixie Chicks' upcoming tour are far below expectations and several dates will likely be canceled or postoned.
Ticket counts for the 20-plus arena shows that went on sale last weekend were averaging 5,000-6,000 per show in major markets and less in secondaries, according to sources contacted by Billboard. Venue capacities on the tour generally top 15,000.
I suppose it is one thing to support the Dixie Chicks by buying their album, quite another to go to a show. The Chicks might miss their traditional fan base after all.
Big Tobacco Goes Smokeless:
USA Today reports that the big cigarette companies are introducing smokeless tobacco products in response to the proliferation of smoking restrictions around the country. One new product, similar to some already developed by smokeless tobacco companies, is a tobacco pouch users tuck under their cheek -- just like traditional smokeless tobacco -- that does not require chewing or spitting. Public health experts are split on the development. While smokeless tobacco is clearly less risky than smoking -- that is, the mortality and morbidity rates from equivalent rates of use is quite less -- some fear that these new products will entice non-smokers.
Smokeless tobacco poses fewer health risks, but smokers are unlikely to give up cigarettes entirely for it, says Greg Connolly, director of Harvard University's Tobacco Control Research Program. "It's like trading in your Mercedes for a tricycle." He says the new products will more likely attract non-smokers, those who might otherwise quit and smokers in a smoke-free place. "This is an effort to keep people using tobacco," says Matthew Myers, president of the Campaign for Tobacco-Free Kids.
Whatever else the impact of these products, as a non-user, I'd still be thrilled if they eliminate spit cups! Related Posts (on one page): - Big Tobacco Goes Smokeless:
- Against Nicotine Abstinence:
One Last Thought About Lithwick's Column:
I'm glad to see that Eugene and I are on the same page on the issue of Lithwick's writing. While we're on the topic I thought I would add one more oddity about her latest column: the ending. Here it is: Clearly, critics on the right are hoping to nudge the justice back into the fold with all the unremitting scorn and abuse. Note to Ann Coulter's breasts: It's not working. Again, this is very zippy. It also sneaks in another mention of Ann Coulter's breasts, which creates the impression (among other things) of a connection between the end and beginning of the piece. There's just one problem: Lithwick knows that her statement is false. It is rather hard to believe that Ann Coulter, Tom Parker, and the Wall Street Journal editorial page have unleashed their "unremitting scorn and abuse" against Justice Kennedy with the subjective intent of "nudging" him to vote in a way that they like. Indeed, the entire point of Lithwick's column is that conservatives have an irrational instinct to lash out and blame Kennedy for everything, no matter what he does. If that's right, it makes no sense to suggest in the last paragraph that this irrational lashing out is actually an effort to persuade Justice Kennedy to change his votes. Still, the conclusion makes conservatives look silly and mentions breasts. So it stays in. Anyway, I hope I'm not being too critical. I have enjoyed Lithwick's writing a great deal in the past, and I know she can be very sharp. But I think a little less zing and a little more effort to be accurate and true would improve her columns considerably.
Lithwick on Coulter on Kennedy:
I think Orin's take on Slate's Dahlia Lithwick is quite right, both on the positive and on the negative. One other item from her column I noticed:
And an excerpt from the new book by Ann Coulter's breasts suggests that he is somehow responsible for the ban on prayer in public schools.
Now I've disagreed with a great deal of what Ann Coulter has said (though I generally try not to bring up her breasts in the process). But I don't quite see the aptness of Lithwick's criticism. Here's the linked-to paragraph from Ann Coulter's column, which is also the only mention of Justice Kennedy in that column:
Among the things the Supreme Court has held “unconstitutional” are prayer in public schools, moments of silence in public schools (which the Court cleverly recognized as an invidious invitation to engage in “silent prayer”), and displays of the Ten Commandments in public schools. In 1992, the Court ruled it “unconstitutional” for a Reform rabbi to give a nonsectarian invocation at a high school graduation ceremony on the perfectly plausible grounds that Rhode Island was trying to establish Reform Judaism as the official state religion. (Opinion by Justice Anthony Kennedy.)
Ann Coulter starts out by talking about the school prayer cases and some other cases. Then she moves on to talk about the graduation prayer case, and correctly notes that this case was written by Justice Kennedy. Coulter is certainly faulting Justice Kennedy's position on graduation prayer, but for the life of me I can't see how she's "suggest[ing] that [Justice Kennedy] is somehow responsible for the ban on prayer in public schools."
Lithwick's work is always very readable, and sometimes quite incisive. But at times she seems to write with less care than the subject deserves, and with not enough attention to possible weaknesses in her argument.
Gays, Federalism, and Minority Rights:
The brouhaha over the latest iteration of the Federal Marriage Amendment has stimulated interest in the relationship between federalism and gay rights. Strikingly, gays seem to be an unpopular minority that benefits more from decentralized federalism than from the concentration of power in Washington. Historically, most scholars and commentators have tended to believe that the federal government is a better protector of unpopular minorities than are state and local governments. Obviously, this view owes much to the history of African-Americans, who were twice (in the 1860s and 1960s) rescued from vicious state oppresssion by the feds. I think that this view is an oversimplification of the African-American experience (for some reasons why, see here and here), but there can be no denying the lessons of the Reconstruction and Civil Rights Movement eras.
The gay experience, however, cuts against the traditional view of the relationship between federalism and minority rights. Gays have fared far better in the statehouses and city halls than in Congress and the White House. This trend has persisted under both Democratic and Republican presidents and congresses, and so cannot all be blamed on George W. Bush. Over the last several decades, numerous states and localities have enacted laws protecting gays against discrimination, several states (including Connecticut and California) have enacted civil union laws through their democratic processes, and one (Massachusetts) has adopted gay marriage, though by judicial decision.
By contrast, the few federal interventions in this field have mostly cut against gay interests rather than for them (e.g. - "Don't ask, Don't tell," the Defense of Marriage Act, etc.). To be sure, many state and local governments have historically had antigay policies of various types (most notoriously, antisodomy laws), but the feds did little or nothing to curb such excesses and there is little doubt that if policy towards gays had been under federal control at the time these laws were enacted, gays would not have been treated any more favorably than they were by the states. As Yale Law Professor William Eskridge documents in his book Gaylaw (1999), the federal government in fact has a long history of antigay discrimination as bad or worse as that of the states. Even the belated invalidation of antisodomy laws by the Supreme Court in Lawrence v. Texas came at a time when only 13 states still had such laws and most of them no longer actively enforced them.
Why have gays, contrary to the conventional wisdom, benefited from federalism? Perhaps it is simply random chance or contingent factors. However, in my view there is a deeper logic at work. At an estimated 2 or 3 percent of the population, gays lack the numbers and resources to have a major impact on national politics, especially in comparison to the much greater numbers and resources of their main adversaries, the religious right. As Bruce Ackerman pointed out in a classic Harvard Law Review article (unfortunately unavailable online), gay political influence at the national level is also reduced by the fact that many of them are "in the closet" and are therefore unlikely to engage in pro-gay political activity so long as that is the case.
However, the gay population (at least the openly gay portion thereof) is highly concentrated in major urban areas, such as New York, DC, and San Francisco. In these places, gays are numerous enough to have some clout. This power is accentuated by the fact that gays tend to "vote with their feet" for cities where there is greater tolerance for them on the part of the general population. Thus, gays can succeed politically at the local and state level because 1) they tend to be concentrated in a few specific areas, magnifying their influence, 2) those areas will likely be places where antigay political forces are comparatively weak, and 3) in such relatively tolerant locations, a higher percentage of the already large gay population will be out of the closet and able to participate in pro-gay political action. Moreover, given the important contributions of gays to local economies, local governments seeking to increase tax revenue have at least some incentive to adopt progay policies in order to get a leg up on their competitors.
Although I can't cover them all in this post, there are important lessons here for both the gay rights movement (which should be more wary of the growth of federal power than many of its members seem to be), and for our broader understanding of the relationship between federalism and minority rights.
Thursday, June 8, 2006
Dahlia Lithwick on Conservatives:
Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skills when she writes about conservatives. Her latest Slate article offers a good example. Lithwick's piece argues that conservatives criticize Justice Kennedy for every position Kennedy takes, and that the criticisms are internally inconsistent and unprincipled. She uses two primary examples. First, former Alabama Supreme Court Justice Tom Parker based his election campaign on his opposition to Roper v. Simmons, and particularly on the fact that Kennedy's opinion trumps the will of state legislatures that wanted to allow the death penalty for 16 and 17 year-olds. Second, the Wall Street Journal editorial page recently wrote a piece invoking Justice Kennedy's opinion in Lawrence v. Texas as justifying the need for a constitutional amendment on same-sex marriages. In particular, the Journal argues that Kennedy's opinion makes it more likely that courts will trump the will of state legislatures that want to define marriage in a particular way. According to Lithwick, the fact that these two criticisms are both being made by conservatives against the opinions of Justice Kennedy shows that conservatives are inconsistent and unprincipled: Just so we're perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.
Not a whole lot of wiggle room there, really.
The writing here is sharp, and if you don't look too closely it might even seem kind of witty. But if you actually think about the argument Lithwick is making, it quickly becomes clear that it makes no sense. Whether you agree or disagree with the criticisms Parker and the WSJ are making — for that matter, even if you think Parker and the WSJ are totally nuts — it's not hard to see that they are making the same point. They both criticize Justice Kennedy for writing opinions that trump the will of the people as expressed through the legislative process. Both Parker and the WSJ want the law in these areas to be made by state legislatures instead of the U.S. Supreme Court, and they oppose opinions Kennedy wrote that ruled that legislative decisionmaking on the issue was prohibited by the Constitution. Again, you can agree or disagree. But these two criticisms make the same basic point, and seem to follow from a consistent perspective. Lithwick misses this — or, perhaps, tries to hide this — by comparing apples and oranges. In the snippet above, she compares complaints that Kennedy ignored the will of the people with complaints that Kennedy was trying to divine the will of the people. But as far as I know, no conservative has criticized Justice Kennedy on the ground that Roper "attempted to divine the will of the majority of the people." Rather, conservatives have criticized Roper on the ground that it ignored the will of the people as expressed in state law, and its analysis of the emerging national consensus was quite plainly unconvincing. Again, the criticism in the two contexts seems to be pretty much the same. (originally posted at orinkerr.com)
More on Grade Inflation:
The recent discussion reminded me of Justice Blackmun's law school transcript, which I saw in Linda Greenhouse's Becoming Justice Blackmun (p. 12). The grades of the future Supreme Court Justice, Harvard Law '32:
But before folks start up with the snide comments, note that this put him just shy of the top 25% of the class (120th out of 451).
Tax Questions Are Everywhere:
A reader asks:
[W]hen are US bounties, such as the kind on Abu Musab al-Zarqawi, subject to US income tax?
I love the question, a perfect example of the lawyer's gift for finding important legal issues in the unlikeliest contexts. I have no idea what the answer is, but I'm sure some of our commenters do.
Why I Call Students Who Got A's and A+'s in My Class:
A commenter to my post below wrote:
I'm curious why you decided to call students and why you continue to do it. I'm not saying it's a bad thing, but I've never heard of other professors doing it, so it does seem a little odd.
My first reaction: What a strange question. Why does anyone congratulate anyone else on some success? Because it makes the congratulated person feel good, and the good feelings are well earned. Because it's a mark of respect. Because the congratulated person is pleased and even grateful for the congratulations, and the congratulator ends up feeling pleased in turn.
At the same time, maybe I'm missing something, because indeed to my knowledge this is a pretty rare practice. Is there a downside that I'm not seeing? One commenter said, "I once congratulated a student on winning the award for second highest grade, and he said so, you thought someone did better than I did?'" Never happened to me, and I doubt it ever will; plus, even if someone reacted this way, it would hardly be a deep insult to me, or reflect deep unhappiness on his part, and it would tell me a little about the person's character (relevant when deciding on whether and how to write letters of recommendation for people). Another wrote, "I once got a letter (well, an e-mail) from a law professor saying that my final paper was really great, and 'deserved' an A+, but because he was 'not a nice person' or something like that, I was only getting an A. Thanks a lot, man. Thanks a lot." OK, I agree that this particular professor might want to decrease rather than increasing the personal touch.
Mitzvah Thanks!
Thanks to those who responded to my invitation to do the "mitzvah" of providing charity in the Holy Land by sending me $1 (and sometimes more) via Pay Pal to distribute on my recent trip. I distributed the proceeds, plus my own contribution, partly to the Magen David Adom (Israel's Red Cross), but mostly to an organization called Yad Sarah, which is best known for lending free medical equipment (e.g., wheelchairs) to those in need.
Too Much Democracy:
Tuesday's defeat of a sitting judge in California by a seemingly far less qualified candidate is a rarity. But the underlying mechanism is not:
Political consultants have long complained that judicial races -- particularly in a county as large as Los Angeles -- are somewhat arbitrary. Few voters have heard of any of the candidates, and yet most vote anyway. The voters' choice often comes down to the scant information in front of them in the voting booth: the candidates' names and job descriptions.
A candidate's ethnicity might thus influence things. A candidate's job title might, and often does, in favor of incumbents. Sometimes the candidate's having bought space in a slate mailer might influence things, though in sufficiently low-profile races even that's likely to have little effect. (A slate mailer is a political mass mailing that promotes a slate of candidates from the Governor on down, a slate that's often united chiefly by the candidates' willingness to pay money to be included in the slate mailing.)
Direct democracy is likely to yield good results only to the extent that the voters are actually likely to have meaningful information about the candidates. And voters, being rational people, aren't going to spend much time -- or often any time -- researching every candidate for every judgeship, community college district seat, and the like.
At least with ballot measures there are meaningful arguments in the ballot pamphlet, and the voters can use imprecise but tolerably helpful proxies to help them make the decision. With statewide ballot measures, there's also a decent amount of advertising and relatively memorable editorializing. Not so with most of the down-ticket races. Perhaps in a few cases there might be scandals that cause some trial judge to be duly removed from office by the voters. But that happens very rarely; most of the time the voters' choices are based on virtually no information.
One possible solution is to have races be partisan. At least then one can use party affiliation as a decent (though admittedly imperfect) proxy for a candidate's likely beliefs, and count on the party to do some direct or indirect screening of its representatives (at least at the general election). I'm pretty sure that this is much better than nonpartisan voting for local executive and legislative races, though in some heavily one-party cities it would make more sense to try to develop local parties beyond just the Democrats and the Republicans.
But if we think that partisan races for judicial office are bad -- I'm not sure about that, and I know some states have partisan judicial races, but for now let's assume they are -- then it's much better to have a purely appointed judiciary than an elected one. And if you do want elections for judges, at least limit them to the very few positions where the voters are likely to pay attention, such as state supreme court positions.
Incidentally, I'm told that the L.A. bar association puts out ratings of judicial candidates. Unfortunately, I'd only heard about this recently, and forgot to look into it in time. My error (which led me not to vote on any of the judicial candidates) -- but if even I made this error, and didn't have the association's endorsements in my voting booth, how many nonlawyers voters do you think had those endorsements in their voting booths?
Incidentally, when we all start voting more from our home computers, the situation might change, mostly (I think) for the better but possibly for the worse -- with home computer voting, we might at least be able to easily integrate various groups' recommendations into our own votes. I discuss this possibility in this short article. But if such a system isn't implemented (and in any event until that system is implemented), I think that voting for many down-ticket races, especially nonpartisan down-ticket races, is too much democracy.
Grading on a Curve:
A recent comment brought up the traditional criticism of grading on curves -- what if 80% of a particular class did really well, and deserves As? what if 80% did badly, and deserves Fs? why not grade objectively rather than comparatively? -- so I thought I'd repost my paean to curves from 2002. (Note that this discussion is about curves in large classes, of about 30 students or more; for smaller classes, such as 12-student seminars, the curve is not apt, though of course there's some controversy about where the cutoff size should be.)
Lots of people really oppose curves. Shouldn't people be graded on their own merits, they reason, rather than based on how other students have done? After all, they ask me, don't you know the difference between an A exam and a C exam?
Well, yes, I do -- but I surely do not know the difference between an A- exam and a B+ exam. And this ties in to some of the reasons why grading on a curve is the lesser of evils:
Sometimes I draft a hard exam and sometimes an easy one. I often can't tell which is which, since they're all easy to me -- I know the material, after all! So something might look to me like a C exam not because this student is unusually bad, but because the exam was just harder than ones from previous years. Even setting the previous factor aside, I've been in teaching for 12 years now -- but many professors are new, and don't even have the data points that I have. In some areas, such as legal writing, the typical teacher has even less experience. (Likewise, in undergraduate institutions, many classes are traditionally taught by relatively inexperienced teachers.) Where are they going to get the distinction between A-s and B+s? Perhaps the curve is unfair to a class that consists of unusually strong students -- but the absence of a curve is unfair to a class that has an unusually harsh professor. And the variation in class strength, especially classes of 50-100 students (the size of nearly all my non-seminar classes)), is likely to be much less than variation in professor harshness. The pressures for grade inflation are quite real, and flow from basic human nature: Most people don't like giving students low grades, especially once they've spent many hours with them. When I have small classes that can't be curved as easily (since there are so few data points that there's a higher chance that the class is unusually strong or weak), I feel this pressure myself, even if the class is still blind-graded. And of course if a professor is known for resisting this pressure, then fewer and fewer students will end up taking his class.
There are, I'm sure, many more advantages to the curve; and I think these advantages vastly outweigh the disadvantages. Like democracy, grading on a curve may be the worst possible system -- except for all the alternatives.
Dorothy Parker on New York:
On this happy morning, it seems right to quote from her ode to America's greatest city. From her essay, published in McCall's in January 1928, entitled "My Home Town":
It occurs to me that there are other towns. It occurs to me so violently that I say, at intervals, "Very well, if New York is going to be like this, I'm going to live somewhere else." And I do — that's the funny part of it. But then one day there comes to me the sharp picture of New York at its best, on a shiny blue-and-white Autumn day with its buildings cut diagonally in halves of light and shadow, with its straight neat avenues colored with quick throngs, like confetti in a breeze. Some one, and I wish it had been I, has said that "Autumn is the Springtime of big cities." I see New York at holiday time, always in the late afternoon, under a Maxfield Parish sky, with the crowds even more quick and nervous but even more good-natured, the dark groups splashed with the white of Christmas packages, the lighted holly-strung shops urging them in to buy more and more. I see it on a Spring morning, with the clothes of the women as soft and as hopeful as the pretty new leaves on a few, brave trees. I see it at night, with the low skies red with the black-flung lights of Broadway, those lights of which Chesterton — or they told me it was Chesterton — said, "What a marvelous sight for those who cannot read!" I see it in the rain, I smell the enchanting odor of wet asphalt, with the empty streets black and shining as ripe olives. I see it — by this time, I become maudlin with nostalgia — even with its gray mounds of crusted snow, its little Appalachians of ice along the pavements. So I go back. And it is always better than I thought it would be.
I suppose that is the thing about New York. It is always a little more than you had hoped for. Each day, there, is so definitely a new day. "Now we'll start over," it seems to say every morning, "and come on, let's hurry like anything."
London is satisfied, Paris is resigned, but New York is always hopeful. Always it believes that something good is about to come off, and it must hurry to meet it. There is excitement ever running its streets. Each day, as you go out, you feel the little nervous quiver that is yours when you sit in the theater just before the curtain rises. Other places may give you a sweet and soothing sense of level; but in New York there is always the feeling of "Something's going to happen." It isn't peace. But, you know, you do get used to peace, and so quickly. And you never get used to New York.
It Couldn't Have Happened to a Nicer Guy:
Abu Musab Al Zarqawi, head of Al Qaeda in Iraq and a terrorist leader responsible for thousands of deaths in Iraq, Jordan and elsewhere, is confirmed killed in a U.S. airstrike.
Law School Grade Inflation:
My post below led some commenters to ask whether there's been grade inflation in law school grades. A few related answers.
1. When I was a UCLA Law School student in 1989-92, our curve was 20% As, 40% Bs, and 40% Cs or below (the "below" grades were optional and very rare) in each course. In the mid-90s, we shifted to 20% As, 60% Bs, and 20% Cs or below. Recently, we shifted to a 25-29% As, 41-52% B/B+s, 18-22% B-s, and 5-8% Cs or below for first year classes, and 23-27% As, 50-60% B/B+s, 17-23% B-s, and 0-10% Cs or below for second and third year classes (basically a 3.2 median, slightly below a B+). So our median grades have been increasing, from B- to B to B+ish, and our Cs have been declining.
2. On the other hand, the quality of our incoming students, at least as measured by the LSAT (which to my knowledge has not had any grade inflation of its own), has been increasing, too: In 1998, the first year in which U.S. News & World Report reported the 25th and 75th percentile LSAT scores, UCLA's range was 159-165; this year it was 162-169 (on a 120-180 scale). This is part of a broader trend that is seen even at higher-ranked schools; Columbia was ranked #4 both years, but its LSAT 25-75 range rose from 165-171 to 168-173. Should this justify a corresponding rise in law school grades? I don't know how to answer that.
3. Also, for whatever it's worth, incoming UCLA law students, on average, had an A- average at their undergraduate schools (the 25-75 percentile range reported this year in U.S. News was 3.51-3.82). Back when we gave lots of Cs, lots of students would get their first Cs of their lives at UCLA Law School. Is that the way things should be? Again, I don't know how to answer that.
4. As best I can tell, the increases in our grades have been driven by one main factor: The increases in grades at other schools. We shifted to a B median in the mid-90s because we noticed that most Top 20 schools had a B median. Our B- students were roughly comparable in class rank to B students at peer schools, but they looked worse to employers who weren't that familiar with the UCLA system. (An employer could of course look closely at the descriptions of the grading systems and figure out the difference, but we were afraid that many employers wouldn't look that closely.)
We shifted to a B+ median recently because we noticed that most Top 20 schools had done the same. I'm pretty confident that we were at the trailing edge of the change, not the leading edge. We didn't want to increase our grades beyond what others were doing, but we also didn't want our students to be at a disadvantage. This sort of behavior may be bad in some overall sense. But it is sensible for a school that's trying not to leave its students unfairly disadvantaged. If someone suggested some multi-law-school grading reform, I might endorse it (though I can't speak to any antitrust law questions this might or might not raise). But so long as each school has to make these decisions by itself, I think we did what we had to do.
5. Though I'm not wild about grade inflation, I should note that a B+ median still leaves plenty of gradations between students, especially when one averages together the grades in many classes. If everyone got A+s or As (which is more or less the system at Yale, with what I'm told is roughly 20-30% of each course getting Hs, and the rest getting Ps with the exception of a very few LPs and fails), that might pose more of a problem. But a system with plenty of A+s, As, A-s, B+s, Bs, and B-s, and occasional Cs (with some required in the first year) adequately conveys to employers which students tend to be better and which tend to be worse. And to the extent that such a system causes confusion when employers compare UCLA students from one grading system with UCLA students from another (which tends to be rare, since most students are competing against others who graduate the same year or shortly before or after), maintaining the same median as other schools diminishes confusion when employers compare UCLA students with students from other schools.
6. One possible solution to this problem is to report class rank, something that I'm told virtually no schools systematically do these days (though when it comes to top graduates who are applying for clerkships or teaching jobs, many schools do in fact report informal ranks). But for complex reasons — which may be caused partly by excessive egalitarianism, and partly by a plausible (though not obviously right) concern that the difference between 60th percentile and 40th percentile probably looks bigger than it should, and that a GPA may do a better job of indicating how slight that difference is — there's been little move to return to the class rank system.
Wednesday, June 7, 2006
Exams Graded!
Woohoo! Plus this let me do one of my favorite things, which is to call to congratulate the students who've gotten an A or an A+ (generally 12-15% of the class, under our new grading system).
Note to other professors who call to congratulate students, based on experience gained the hard way: If you don't reach the student, and leave a generic message that doesn't mention the grade (particularly important if it's a shared voice-mail or answering machine), say something like "It's no big deal; nothing to worry about; just call me back please at your convenience." A student who just gets an unadorned "please call your professor" message will FREAK OUT.
Dorothy Parker on insomnia:
She died 39 years ago today, as one reader reminded me. This is from an amusing little essay called "The Little Hours" on trying to get to sleep when you're wide awake at 4:20 a.m.:
And what suggestion has anyone to murmur as to how I am going to drift lightly back to slumber? . . . I really can't be expected to drop everything and start counting sheep, at my age. I hate sheep. Untender it may be in me, but all my life I've hated sheep. It amounts to a phobia, the way I hate them. I can tell the minute there's one in the room. They needn't think that I am going to lie here in the dark and count their unpleasant little faces for them; I wouldn't do it if I didn't fall asleep again until the middle of next August. Suppose they never get counted -- what's the worst that can happen? If the number of imaginary sheep in this world remains a matter of guesswork, who is richer or poorer for it? No, sir; I'm not their scorekeeper. Let them count themselves, if they're so crazy mad after mathematics. Let them do their own dirty work. Coming around here, at this time of day, and asking me to count them! And not even real sheep, at that. Why, it's the most preposterous thing I ever heard in my life.
Podcast on Colorado firearms preemption case:
On Monday, the Colorado Supreme Court announced that it was divided 3-3 on the appeal of a case involving Denver's challenge to the Colorado state law preempting some of Denver's anti-gun laws. As a result, the decision of the Denver District Judge stands: Denver may retain some of the gun laws (the "assault weapons" ban, the "Saturday Night Special ban," and the near-prohibition on the open carrying of firearms) which had been preempted by state law. The tie vote existed because after the retirement of Justice Rebecca Love Kourlis, the court vacancy was filled by Allison Eid. As Solicitor General for Colorado, Eid had argued the case on behalf of Colorado (and against the City of Denver) during oral argument in December, so Justice Eid recused herself from the decision of the case.
In a new podcast on iVoices.org, I explain the decision, and its ramifications. An Independence Institute Issue Backgrounder I wrote in 1999 explains the need for a Colorado preemption law. A 2003 Backgrounder details the limited preemption law (much less sweeping than similar laws in the overwhelming majority of states) which Colorado was about to enact. An Issue Paper from 1993 describes Denver's very repressive laws regarding juveniles and guns. (The preemption of some of the Denver laws, such as the ban on juveniles even touching guns under adult supervision, was upheld by the district court; one item raised in the Issue Paper--the overly broad definition of "weapon" was fixed at the behest of City Councilman Tim Sandos before the ordinance was enacted.) An op-ed by Donald DeKieffer illustrates the absurdity of Denver's juvenile laws.
Holocaust-Denying Atheist Candidate for Alabama Attorney General Gets 43.5% of the Primary Vote:
That's the remarkable Larry Darby, who was seeking the Democratic nomination; the election results are here. I don't know whether I should (1) be sad that 160,000+ voters were willing to vote for a Holocaust denier, (2) be happy that they were willing to set aside the candidate's atheism (I doubt that many voted for him precisely because he's an atheist), (3) assume that few voters were paying much attention to more than a tiny handful of issues in the race, or (4) just be glad that he didn't win.
UPDATE: An interesting analysis of the race based on county-by-county results, in a comment to a Concurring Opinions post.
The Law and Economics of Superman:
Co-blogger Tyler Cowen asks:
Did you know about the new summer Superman film?
Let's say we had an altruistic and incorruptible Superman, how should he allocate his efforts to improve the macroeconomy? He is really strong, he can fly very fast, leap tall buildings at a single bound, has incredible vision, and somehow he is immune from Einstein's theory of relativity and time dilation at near-light speeds (his most impressive achievement, if you ask me).
Yes he should save the world from evil madmen, but fighting ordinary crime hardly appears worth his trouble....
Tyler offers a few suggestions on what Superman should do to increase the social returns on his investments of time and energy. On a (slightly) less unserious note, I have to admit that one reason why I never much liked the Superman franchise is that the character seems to misallocate his efforts so severely! If you had his powers, would you spend your time chasing a third-rate villain like Lex Luthor (even if played by the great Gene Hackman)? Why not instead overthrow Kim Jong Il or stop the genocide in Darfur? Perhaps the first thing our hypothetical Superman should do is take one of Tyler's economics classes and learn about the concept of opportunity cost. If a Hollywood studio offers me enough money to offset MY opportunity costs, I would be happy to write that up as the screenplay for the next Superman movie!
UPDATE: Several commenters question my assertion that Lex Luthor is unworthy of Superman's attention, claiming that it is important to foil Luthor's plans to take over the world. I remain unpersuaded. Luthor's harebrained schemes for world domination are doomed to failure not only because of their inherent implausibility, but also because he uses morons for henchmen (e.g. - Otis, his right-hand man) and repeatedly ignores the helpful advice of the Evil Overlord List. Assuming that Luthor poses any real threat at all, it could probably be handled even by the dubiously competent Department of Homeland Security (despite its own serious resource allocation problems). A rational Superman committed to maximizing his contribution to the social welfare function should be going after bigger fish. He needs to take Tyler's class right away!
Rock, Paper, Scissors as Alternative Dispute Resolution:
An order from U.S. District Court Judge Gregory Presnell in Avista Management, Inc. v. Wausau Underwriters Insurance Co. (paragraph breaks added):
This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion -– the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts -– it is ORDERED that said Motion is DENIED.
Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness.
At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may
be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building.
Incidentally, such random (or close to random) decisionmaking isn't entirely novel to the legal system: In some courts, the chief judge is selected from among the court's members based on seniority and related factors, and when there's a tie in those factors, the tie is broken by a coin flip. Tied elections are sometimes resolved the same way; in Nevada, they may also sometimes resolved by drawing cards (no joke).
On the other hand, in In re Brown, 662 N.W.2d 733 (Mich. 2003), the Michigan Supreme Court censured a judge for using a coin flip to make a substantive decision (item numbers omitted):
[The judge] encouraged the parties to resolve the matter themselves, but when they were unable to agree and where each side had equally compelling arguments as to why the children should be with one party on Christmas day instead of Christmas Eve she told the parties it was nothing more than a coin flip. Instead of just issuing a decision regarding the dispute, Respondent stated that she would decide it by the flip of a coin.
The court ordered the judge to "[r]efrain from resolving any disputed issue by the flip of a coin." (Of course, even if coin flips are improper for making substantive decisions, they may still be proper for relatively minor procedural matters such as the location of depositions.)
Thanks to Diane Knox for the pointer; she also reports that a fellow lawyer in Miami says that "the use of rock/paper/scissors (a.k.a. roshambo) has become such a prevalent means of resolving discovery disputes that some local law firms now take a student's roshambo skills into consideration when making hiring decisions." I can't claim great confidence in the "now take skills into consideration" assertion, but, as we say in Russian, "I'm selling it to you for what I paid for it."
UPDATE: OK, this I can't endorse -- "A jury unable to decide on a verdict tossed a coin last week to convict a man of murder." The procedure quite properly "prompt[ed the] judge to declare a mistrial."
Andrew Sullivan "podfisks" President Bush's
rather lackluster speech yesterday in defense of the federal marriage amendment. Listen to the whole thing.
As a respite from the misbegotten federal marriage amendment
I wandered into a bookstore in D.C. yesterday and picked up a copy of The Portable Dorothy Parker for $17. Parker is the clever writer/witticist who was active mostly in the 1920s and 1930s. She wrote poems, short stories, reviews, and essays.
From "Fulfillment":
For this my mother wrapped me warm,
And called me home against the storm,
And coaxed my infant nights to quiet,
And gave me roughage in my diet,
And tucked me in my bed at eight,
And clipped my hair, and marked my weight,
And watched me as I sat and stood:
That I might grow to womanhood
To hear a whistle and drop my wits
And break my heart to clattering bits.
Related Posts (on one page): - Dorothy Parker on New York:
- Dorothy Parker on insomnia:
- As a respite from the misbegotten federal marriage amendment
Will Justice Prosecute Journalists?
That was one of the questions in a Senate Judiciary Committee hearing yesterday at which Deputy U.S. Attorney Matthew W. Friedrich testified. The Washington Post reports:
Friedrich, in his opening statement, confirmed that the Justice Department was prepared to investigate and prosecute leaks, but referred to Attorney General Alberto R. Gonzales's recent statement that the "primary focus is on the leakers of classified information, as opposed to the press."
When Friedrich confirmed that the department thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information, Specter asked specifically about whether the law could be applied to reporter James Risen of the New York Times, the newspaper that published an article in December about the National Security Agency's warrantless surveillance program.
"Obviously, Senator, I can't comment as to any particular case or specific matter," Friedrich said. He added that espionage laws "do not exempt . . . any class of professional, including reporters, from their reach."
Specter then asked, without specifying a particular case, whether the department, under Gonzales or former attorney general John D. Ashcroft, ever considered prosecuting a newspaper or reporter for publishing leaked classified information.
"I don't think it would be appropriate for me to give an indication one way or another, and I hope people don't read anything into my answer one way or another," Friedrich said. But after a short lecture from Specter, he added that it was his "understanding" that there were historical examples of officials considering whether to prosecute journalists.
Nuke Power Catch-22:
One criticism of nuclear power is that new facilities are too expensive to build. While heavily regulated, and fiercely opposed in the permitting process, nuclear facilities are also heavily subsidized. A new study also suggests nuclear power plants could be too costly to close. From today's New York Times:
Closing the Indian Point nuclear reactors would make electricity more expensive, leave New York more vulnerable to natural gas shortages and add to pollution that causes global warming, according to a report released on Tuesday by a committee of the National Academy of Sciences.
The committee said that there were no insurmountable technical obstacles to closing the plant. But it asserted that electric demand was growing so fast in the region, and building power plants was so difficult, that simply meeting power needs during peak periods would be a challenge even if the reactors stayed in operation. . . .
"While the committee is optimistic that technical solutions do exist for the replacement of Indian Point, it is considerably less confident that the necessary political, regulatory, financial and institutional mechanisms are in place to facilitate the timely implementation of these replacement options," the report said.
More on RFK Jr. & Election 2004:
Robert F. Kennedy Jr. defends his Rolling Stone article, and Salon's Farhad Manjoo responds here.
Also Salon's Joan Walsh answers those who've criticized the magazine for publishing Manjoo's article in the first place.
Meanwhile, Democratic pollster Mark Blumenthal dissects Kennedy's reliance upon exit poll data here, and finds it wanting. While it covers many topics involving alleged suppression and fraud in Ohio, the article disappoints in its discussion of the exit poll controversy, because on that aspect of the controversy Kennedy manages to dredge up nearly every long-ago discredited distortion or half-truth on this subject without any acknowledgement of contrary arguments or the weaknesses in his argument. It is as if the exit poll debate of the last eighteen months never happened. Blumenthal promises to post Part II of his critique shortly.
UPDATE: RCP's Tom Bevan weighs in on RFK Jr's "incredble shrinking credibility": Last Friday RFK, Jr. asserted on CNN, "There's no legitimate dispute that there was a massive, concerted, deliberate effort by high level-Republican Party officials to fix the election in Ohio. And the press has not covered this issue." This is a grotesque lie unsupported by even a shred of credible evidence, yet Kennedy is out on national cable television spewing it as gospel truth.
Class VP arrested after coming late to graduation:
I don't often read stories about my high school, Thornton Fractional Township High School North ("Home of the Meteors!" AKA "T.F. North") in Calumet City, Illinois, but this one made the Best of the Web. From the Chicago Sun-Times:
For Maquisha Cosey, vice president of Thornton Fractional North High School's class of 2006, graduation day is not one she'll soon forget.
And not for any of the sentimental reasons.
It's the day that Cosey, who was listed on Friday's graduation program as the leader of the pledge to the flag, was arrested and charged with criminal trespass and disorderly conduct after trying to participate in the ceremony despite being denied entry for being late.
"I know that this shouldn't have happened to me. It shouldn't happen to anyone," says the graduate.
Instead of celebrating her big day, she spent the evening at the Calumet City police station being fingerprinted and photographed because Principal Dwayne E. Evans, the Cosey family claims, was angry someone had let her into the ceremony after the doors were locked.
It was also her 18th birthday.
"I don't have all the facts yet," District 215 Supt. Robert Wilhite said Saturday. "I have a meeting scheduled for Monday morning with the staff of Thornton North to sort this all out."
Wilhite says he was told Cosey was arrested for "screaming and yelling in the gymnasium long after the graduation was all over." Court papers, with the principal listed as the complainant, allege she "knowingly and intentionally acted in an unreasonable manner and provoke[d] a breach of the peace by continually yelling and screaming and threatening the school staff during the graduation proceedings."
But Cosey, a member of student government who says she never had a discipline issue in four years of high school, denies that, saying, "That's just not my character."
Evans could not be reached for comment.
It all started when Cosey arrived at the high school in Calumet City two minutes before doors were scheduled to be locked. Invitations had clearly stated no one would be allowed in to the 6 p.m. ceremony after 5:55 p.m., and students had been instructed to arrive at 5 p.m.
That Cosey was late, she and her parents aren't disputing. . . . There's more here.
Update: Tardy Cal City grad may not face charges
Here is some background on Calumet City from Wikipedia. Though it fails to mention its notorious past, it does offer this: Calumet City is featured or mentioned in a number of major movies. John Belushi's "Joliet Jake" character from The Blues Brothers was born in Calumet City. In film Silence of the Lambs, Buffalo Bill is thought to be hiding in Calumet City, when he is actually in Belvedere, Ohio. The Encyclopedia of Chicago has much more information: Cook County, 19 miles S of the Loop. Calumet City is located across the southeast boundary of the city of Chicago at the state line between 143rd Street and 163rd Street, east of the Bishop Ford Freeway. It is north of Lansing and southeast of Dolton. Originally known as West Hammond, Calumet City shares State Line Road with Hammond.
Founded in 1893 when the population consisted mainly of German Lutheran farmers, the early community depended heavily on the factories and commerce of Hammond. The 1900 population of 2,935 grewto 7,492 by 1920. By that time, Poles outnumbered Germans, with residents of Irish ancestry in third place. Poles were so politically powerful in the community that a Polish American was elected village president in 1900 and in 1902 one municipal party was able to field a slate made up completely of candidates with Polish names.
When Indiana went dry in 1916, West Hammond became an attractive watering hole for the drinkers of northwest Indiana. Bootleggers like Al Capone built on this base when national Prohibition came into play, and the town of West Hammond, just 30 minutes from downtown Chicago, gained a reputation as a “Sin City,” where gambling, prostitution, and illegal booze joints created a pre–Las Vegas strip on State Street. Hardworking residents were so dismayed by the town's bad reputation that they voted in 1923 to change the name to Calumet City. Despite the city's notoriety, the population grew from 7,500 to 12,300 during the 1920s, reaching 25,000 in 1960, 32,956 in 1970, and 39,697 in 1980. Since the 1920s various mayors and citizen groups battled to shut down the State Street bars with varying success, until Mayor Jerry Genova's efforts in the 1990s seemed to bring that chapter of the city's history to an end.
In 1966 investors spent $35 million and built the 80-store River Oaks Shopping Center. The center's excellent location on U.S. Route 6, a few miles from the Bishop Ford Freeway, brought customers from Chicago's South Side, and a renovation in the early 1990s (completely enclosing the previously open-air mall) maintained its drawing power.
In 2000 Calumet City's population was 39,071, with 54 percent African American and 11 percent Hispanic. Thirteen percent of Calumet City residents reported Polish ancestry, with smaller percentages of German, Irish, and Italian ancestry.
Tuesday, June 6, 2006
Video of panel on marriage amendment now available online:
Yesterday C-SPAN aired a panel discussion on the federal marriage amendment sponsored by Cato and the Center for American Progress. The video of that discussion is now available online here.
Panelists were Prof. Michael Seidman, Bruce Fein, Mark Agrast, and me. Although all of us opposed the amendment, you'll see that we had somewhat different reasons for doing so. The program lasted about an hour and a half, with me as the first speaker. If you have the time to watch, the exchange after the initial presentations from each panelist turned out to be unexpectedly lively.
The New York Times and the federal marriage amendment:
Today's New York Times includes a story on the proposed federal amendment banning same-sex marriage. The story contains the following paragraph, describing the effect of the proposed amendment:
His [President Bush's] speech came as the Senate began to debate the proposed amendment, which would define marriage as being between a man and a woman and would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage.
This is a common description of the effect of the amendment, and it has appeared in one form or another throughout much of the news media over the past few days. Nevertheless, while it's true that the amendment would at a minimum "define marriage as being between a man and a woman" and "would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage," this description implies that that's all the amendment would do. Thus, it essentially accepts the interpretation offered by some supporters of the amendment (like Senate sponsor Wayne Allard) in their effort to make it seem as narrow and reasonable as possible. It unquestioningly accepts the controversial view that this amendment is basically limited to dealing with judicial activism.
However, there's an active debate over what additional effects the amendment might have. Those of us who oppose the amendment are quite concerned that it would do far more than define marriage and limit the power of judges. As I've argued, for example, its effect may also be to ban the legislative enactment of civil unions and make other legislatively created statuses for same-sex couples unenforceable. For details of the argument about why the amendment might be interpreted in this way, see the last section of my recent Cato piece on the amendment.
But the point here is not to establish whether I'm right or wrong about the possible effects of this amendment. The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories. Not every reference to the amendment needs to note these possible additional effects (e.g., it's acceptable shorthand generally to refer to the amendment as "banning same-sex marriage"), but the possible additional effects should at least be mentioned in substantive stories about the amendment, like the one quoted above. The New York Times and other media who aspire to be fair, balanced, and accurate in reporting the news owe us better.
Media Privileges for Bloggers -- Two Victories Over the Last Several Months:
Two weeks ago, the California Court of Appeal held that bloggers were generally entitled to the journalist's privilege under California law, just as mainstream media writers are. Few people mentioned that six months before that, the Federal Elections Commission also held that bloggers were entitled to the media exemption from most federal campaign spending regulations, just as mainstream media organizations are. Since two incidents are officially A Trend — not such a facetious assertion when it comes to law, where courts and other legal institutions take even nonbinding precedents seriously — it might be helpful to make a few points about the two items taken together.
1. Extraconstitutional speech protections. Since Reno v. ACLU (1997), it has been clear that the First Amendment covers Internet speakers as much as newspapers and other print media. What's more, the First Amendment has long covered nonprofessional speakers, such as street-corner leafletters.
The question now isn't whether bloggers are entitled to First Amendment protections; they are. Rather, it's whether bloggers are entitled to additional protections, beyond what the First Amendment requires. The First Amendment either secures no journalist's privilege, or a relatively limited one. (The matter isn't squarely settled in the courts.) But many states do provide a journalist's privilege, often a broad one.
The First Amendment lets the government restrict election-related speech by corporations; but election laws generally provide an exemption for media corporations. The First Amendment allows libel law. But many states let certain publications limit their libel liability by promptly publishing a retraction. The question is whether these statutory protections cover bloggers as well as traditional media.
2. A lot depends on the words of the statutes. Because we're dealing with statutory protections (and, in the case of the California journalist's privilege, a detailed state constitutional protections), rather than with judge-made rules developed under the First Amendment, the words of the particular statute matter a lot. For instance, if a statute covers "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication," that clearly covers bloggers, who are publishing their works. ("Publication" isn't limited to print publication.) On the other extreme, if |